1994 PLP 1129 (CLC)

‑‑‑‑Ss. 15 & 19‑‑‑Ex parte ejectment order‑‑‑Setting aside of‑‑‑On filing ejectment application against tenant by landlord, tenant filed his‑written statement‑‑‑After filing affidavit‑in‑evidence by landlord, matter was adjourned for cross‑examination of landlord witness but on adjourned date of hearing tenant and his counsel remained absent‑‑‑Rent Controller closed right of tenant to cross‑examination landlord's witness, proceeded with matter and allowed ejectment application of landlord‑‑‑Tenant after a lapse of eight months filed application for setting aside ex parte ejectment order against him which was dismissed by Rent Controller‑‑‑Ex parte order against tenant could have been set aside only if he was not served or he was prevented from appearing before Court for reasons beyond his control‑‑‑Tenant was duly served and he filed his written statement and tenant had failed to show any sufficient cause for his remaining absent thereafter‑‑‑Even otherwise application for setting aside ex parte order was made after a period of eight months without any application for condonation of such delay‑‑‑Case clearly being of negligence on part of tenant and his counsel, ex parte ejectment order passed against him could not be set aside. Zahid Marghoob for Appellant. Niazy A. Khaliq for Respondents. This application is not pressed, which is accordingly dismissed as not pressed.

2. This appeal has been filed challenging the order passed by the learned I Senior Civil Judge and Rent Controller, Karachi West, on 27‑10‑1993. Briefly the facts are that the present respondents had filed a rent case for ejectment against the present appellant on the grounds of default and transferring of possession to a third party. In the rent case the present appellant was served on 9‑12‑1990 and filed his written statement. Thereafter the present respondents filed affidavit‑in‑evidence on 31‑1‑1991 and matter was adjourned for cross‑examination of respondents' witness. The present appellant thereafter remained absent and so did his counsel. The Rent Controller ultimately closed the right of appellant to cross‑examine the respondents' witness on 25‑2‑1991 and on 26‑3‑1992 his side was also closed. The Rent Controller thereafter proceeded with the matter and gave the judgment on 26‑3‑1992, whereby the rent application filed by the present respondents was allowed and the appellant was directed to be ejected. The appellant then after a lapse of months filed an application under Order 9, Rule 13, C.P.C. for setting aside the judgment. This application was dismissed by the impugned order. Being aggrieved the appellant has preferred this appeal. I have heard Mr. Zahid Marghoob, Advocate for appellant. In the first instance the appellant was served in the rent case and filed his written statement. The learned counsel has not been able to show any sufficient cause for his remaining absent thereafter. The provisions of Order 9, Rule 13, C.P.C. would be attracted only in a case where either the defendant is not served or he is prevented from appearing before the Court of reasons beyond his control. In the present case both these ingredients have not been shown by the appellant and thus the very provision would not be applicable to the present case. Even otherwise this application having been made after a period of 8 months is clearly barred by limitation. The learned counsel states at the bar that no application under section. 5 for condonation of delay was moved before the Rent Controller. In these circumstances I am of the view that this is a clear case of negligence on the part of appellant and his counsel. The appeal therefore, is without substance and is dismissed summarily. H.B.T./M‑1914/K ?????????????????????????????????????????????????????????????????? ??????????? Appeal dismissed.