2017 PLP 122 (CLCN)

CH. MUHAMMAD IBRAHIM ZIA, J.

The captioned appeal by leave of the Court has arisen out of the judgment of the High Court dated 22.5.2013 whereby the writ petitions filed by both the contestant parties has been disposed off through the impugned single judgment.

2. Brief facts of the case are that the respondent is the owner of various shops adjacent to his house at Medina Market and all have been rented out to various shopkeepers including the appellant. It is contended that respondent rented out one of the shops to the appellant about 8 years ago on the basis of an oral agreement and it was agreed upon that the appellant will be bound to vacate the shop forthwith on demand of the respondent land lord. The rent of the said shop was fixed as Rs. 5000/- per month whereas Rs. 100,000/- was paid in advance by the appellant. The respondent, lent Rs. 700,000/- (seven lac) to the appellant for extension of his business, thereafter, the appellant abruptly escaped from the scene and the rented shop remained closed round about 7 months. The respondent land lord, came to know during the course of locating him that he has already fled away from the city by practicing fraud and cheating so many persons including Imam Masjid of Naya Mohallah Mosque. Upon this situation, the respondent filed an application before Rent Controller for ejectment of the appellant and delivery of possession to the respondent in accordance with law by taking all necessary measures as the appellant has defaulted by not paying monthly rent and other dues total to the tune of Rs. 18000/-. On filing of aforesaid application, the Rent Controller issued notices and thereafter published a proclamation in the newspapers. Despite all this the appellant did not appear before the Rent Controller and ultimately the ex parte proceedings were initiated against him and the respondent through cogent and convincing evidence proved his claim. The trial Court vide order dated 11.10.2012, handed over the possession of the disputed shop to the respondent. Thereafter, the appellant filed an application for cancellation of the aforesaid order before the Rent Controller. The said Court, after hearing the parties, set aside the ex parte ejectment order dated 11.10.2012. Respondent, feeling aggrieved challenged the order of Rent Controller through writ petition before the High Court, whereas a counter writ petition was also filed by the appellant. The High Court through the impugned consolidated judgment disposed off both the writ petitions, hence, this appeal.

3. Raja Iqbal Rashid Minhas Advocate, the counsel for the appellant, after brief statement of necessary facts submitted that the respondent herein with mala-fide intentions without properly mentioning and apprising the facts, filed an application for ejectment before the Rent Controller Muzaffarabad, on 13.8.2012 without any knowledge of the appellant. The Rent Controller passed the ex parte order on the sole reason that the appellant tenant has escaped from the scene after practicing fraud. The shop has not been opened since 4 months and neither the rent nor the other dues have been paid. It has also been alleged that the appellant has disappeared. The learned Rent Controller vide ex-parte order dated 11.10.2012 treated the appellant as and directed the clerk of the Court to hand over the possession of the shop to the respondent. On gaining knowledge of the fraudulent proceedings by the respondent, on 15.10.2012 the appellant moved an application for setting aside the ex-parte order. The learned Rent Controller vide order dated 7.1.2013 recalled the ex parte ejectment order. After suspending the operation of the execution of proceedings, the appellant also applied for handing over the keys of the shop. The respondent filed a writ petition against the order of Rent Controller on 18.2.2013, whereas on the application filed by the respondent, the learned Rent Controller vide order dated 21.2.2013 issued interim injunctions in the terms not to eject the appellant from the shop on the ground of breach of peace. The appellant feeling aggrieved from this order also challenged the propriety of the order. On this, writ petition was filed on 25.2.2013. The learned single Judge of the High Court while accepting the writ petition filed by the respondent, set aside the order dated 7.1.2013 and restored the ex-parte ejectment order. Whereas the writ petition filed by the appellant has been dismissed. The learned counsel also submitted that the order of the High Court is against the statutory provision of law. The Rent Controller is vested with no special powers. The learned Judge High Court fell in error while holding that the Rent Controller is not empowered to set aside the ex parte order. He has referred the cases reported as Haji Abdul Ghani v. Makhan Bano [1981 CLC Karachi 1060] and Muhammad Yousaf v. Abdullah [PLD 1980 SC 298] in support of his version.

4. Syed Shahid Bahar Advocate the learned counsel for the respondent argued that Rent Restriction Act, 1986 is a special law and only one appeal is provided against the decision of Rent Controller under section 18 while no concept of other remedies like review, revision and application is recognized by law. Therefore, the trial Court illegally and wrongly set aside the ex parte ejectment order dated 11.10.2012. The learned counsel further contended that the appeal being without any substance is liable to be dismissed. In support of his contentions, the learned counsel has cited the cases reported as Muhammad Shafi v. S.M. Enamal Haq and another [1986 CLC 1546], and Ch. Ghulam Ghaus through Legal heirs v. Saifullah and another [2001 SCMR 159].

5. We have heard the learned counsel for the parties and also gone through the record made available. The examination of impugned judgment reveals that the material legal proposition attended to by the High Court is relating to the powers of Rent Controller for setting aside the ex parte order. The learned Judge while accepting the writ petition of the respondent has drawn the conclusion that the Rent Controller is not vested with the powers to recall the ex parte order and in his opinion it amounts to review of the previous order whereas the Rent Controller is not vested with such powers of review.

6. In view of the spirit and whole scheme of the Rent Restriction Act, 1986, and the principle of law enunciated by the superior Courts, we are unable to agree with the opinion of the learned High Court. Although the judgment in a case reported as Sheikh Khalid Mahmood v. Mallick Muhammad Irfan [PLD 1983 SC(AJ&K) 204], has been referred but in different context, whereas the principle of law enunciated by this Court regarding status and functions of the Rent Controller remained out of sight of the learned Judge of the High Court. In this authoritative judgment, this Court has categorically observed that the nature of the inquiry conducted by the Rent Controller is akin to the inquiry conducted by the executive officer. Although some of the functions of Rent Controller are quasi judicial in character yet he is not required to act judicially in discharging many of his functions. Relevant parts of the judgment are reproduced as under:- "

15. We are also not in agreement with Mr. Gillani, Advocate, that the Rent Controller acts as a Court. Though under section 18(6) of the Rent Restriction Ordinance, 1980, the Controller has been given powers of summoning and enforcing the attendance of witnesses and compelling the production of evidence, he is not bound in every case to follow the procedure stipulated in the Code of Civil Procedure. He has been given powers to make orders after holding such inquiry as he thinks fit. It would be thus observed that the question to decide the nature and extent of inquiry is purely his discretion and the parties have no right to insist upon for production of such evidence as they desire to adduce in support of their case. The inquiry in such like cases is akin to an inquiry conducted by an executive officer. We however concede that some of the functions of the Controller are judicial in character yet he is not required to act judicially in discharging many of his functions.

16. In the result we hold that the Controller while performing his functions under Rent Ordinance does not act as a Court. At the most it may be said that he acts in a quasi-judicial capacity."

7. Even otherwise, the scheme of law laid down in the Rent Restriction Act particularly, the provisions of section 14 has vested the Rent Controller with the powers to pass suitable orders on the applications of the parties. In this regard the powers vested in the Rent Controller under the provisions of subsections (4) to (7) of section 14 of the Rent Restriction Act, are very much clear and no further deliberation is required. On the specific question of setting aside the ex-parte order, conclusion drawn by the learned Judge High Court in the impugned judgment is not consistent with the principle of law enunciated by the Superior Courts, section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, is almost pari-materia statutory provision like section 14 of the Azad Jammu and Kashmir Rent Restriction Act, 1986. There is unanimity of the Courts that the Rent Controller is vested with the powers to set aside the ex parte order. Our this view finds support from the cases reported as Samiullah v. Yar Muhammad, [1983 CLC 2981], Sh. Manzoor Hussain v. Mir Muhammad Mudassar and another [PLD 1979 Lah. 745], Abdullah and 3 others v. Addl. Deputy Commissioner (C) Jhang and another [1980 CLC 736], Muhammad Aslam Mirza v. Mst. Khurshid Begum [PLD 1972 Lah. 603], Muhammad Idrees v. Mst. Shamim Akhtar [1980 SCMR 787] and Mrs. Vasli Bai and 3 others v. Jamshed Aderji Dubash and another [1980 CLC 1009].

8. There is also chain of judgments on this point, therefore, it hardly requires any detailed reference of other judgments, however, for instance we would like to refer here the observation of the Court made in the judgment reported as Muhammad Aslam Mirza v. Mst. Khurshid Begum [PLD 1972 Lahore 603] wherein identical proposition has been discussed in detail and an authoritative judgment has been passed. The Court after survey of plethora of judgments has drawn the conclusion which reads as follows:- "I need not expand this subject by quoting examples of other situations, and to confine the discussion in hand to the subject under consideration, I am of the opinion that to deny the right to a person to apply for restoration of a case, dismissed in default or for setting aside an ex parte order on the ground that the suit has ended and, therefore, the Court has become functus officio, for all purposes is not a correct view. The Court may be in a state of suspense to touch the merits of the case until the suit is revived but for the purposes of revival of the case, since, these proceedings are part of the suit, the Court is very much there and so also its authority and jurisdiction." This principle has been followed constantly. Same like the setting aside of an ex-parte order does not amount to review. In this regard it will be suffice to refer here to the case reported as Abdullah and 3 others v. Addl. Deputy Commissioner (C) Jhang and another [1980 CLC 736], wherein this proposition has been dealt with as under:- "2...Learned counsel, however, submits that the authority was not clothed with any such power of re-hearing. I do not agree. The principle in such a situation has been amply discussed in Mst. Shahjahan Begum v. Mst. Shabbir Fatima and another (PLD 1972 Lahore 546) and Muhammad Aslam Mirza v. Mst. Khurshid Begum (PLD 1972 Lahore 603). In the first cited case, there was the question of restoration of a revision petition dismissed in default. Section 23(g) of the Act gives powers to restore only appeals dismissed in default but does not speak of a revision. Nevertheless it was that such power is to be "deemed to be in the nature of inherent powers of the statutory functionary concerned while dealing with a quasi judicial matter" The second cited case concerned the setting aside of an ex parte order made under the West Pakistan Urban Rent Restriction Ordinance, 1959, in which the contention that the setting aside was in the nature of a review for which there was no provision in the Ordinance, was repelled with the observation that "the applications for claiming a re-hearing on the ground of earlier absence due to some sufficient cause are not in the nature of a review and that "an application to claim a re-hearing being in the nature of a prayer to claim natural justice will always be available." The point was made very clear in the following further observation: "The theory of finality of orders and judgments has no effect on the right of a defendant to claim a re hearing of matters which have been decided against him, ex parte, if he can show a good or sufficient cause for his absence on the relevant date." I find that as early as 1964, the Supreme Court had in Muhammad Farooq Imam v. Claims Commissioner, Lahore and 2 others (PLD 1964 SC 585) held: "We are unable to hold that the ex parte decision of the case is due to default on the part of the appellant. Under the circumstances we are of the opinion that the appellant is entitled to an opportunity of being heard before the case is decided." See also my own judgment reported in PLD 1975 Lah.

911. The petitioners not having taken the proper remedy on a question of fact, cannot now be permitted to raise the contention which is against the facts recorded in the impugned order and which cannot be resolved except by an enquiry." In a recent judgment, the apex Court of Pakistan, while discussing the powers of the Rent Controller and application of the principles of Civil Procedure Code, in a case reported as Saeed Pervaiz v. Syed Masood Hassan [2008 SCMR 568], has observed as follows:- "

6. Adverting to the next contention of the learned counsel for the petitioner that since the C.P.C. was not applicable to the proceedings before the Rent Controller, therefore, petitioner's defence could not have been struck off, it may be pointed out here that though the provisions of C.P.C. in stricto sensu are not applicable yet, equitable principles thereof can be applied to the rent proceedings as well, for a just cause because the Rent Controller is empowered to adopt procedure of his choice, which of course, has to be legal. Law is well-settled in this regard. The earliest decision on the point was in the case of Khadim Mohyuddin v. Rehmat Ali PLD 1965 SC 459 wherein it was observed that though the Controller was given powers of summoning and enforcing the attendance of witnesses and compelling the production of evidence and pass orders after holding enquiry, yet, he was not bound in every case, to follow the procedure as laid down in the Code of Civil Procedure as the question of nature in inquiry is left to him. In the case of Ayub Khan and another v. Fazal Haq and others PLD 1976 SC 422, service on one of the parties was effected by affixation which was challenged as illegal on the ground that as the Rent Controller was not a Court, he could not have followed the procedure prescribed by the C.P.C. The contention was repelled and it was held that though the Rent Controller, in his discretion was entitled to follow the equitable principles of the C.P.C. but he was also free not to follow technical provision of the Code. In the case of Muhammad Saleh v. Muhammad Shafi 1982 SCMR 33 which is somewhat identical to the one in hand, petitioner's defence, who was tenant in the premises, was struck off by the Rent Controller as a result of failure to deposit the arrears of rent. It was argued that since provisions of C.P.C. were not applicable under the Rent Restriction Ordinance, therefore, the Rent Controller could not have done so. The contention was found without merit on the ground that although the provisions of C.P.C. were not applicable in terms to the proceedings under the Rent Restriction Ordinance, yet, the Controller was in his discretion competent to apply them if he had considered it necessary. In the case of Abdul Majid v. Syed Azhar Ali Shah and others PLD 1985 SC 191, the contention that since power of attorney was not filed by the counsel in accordance with the provisions of Order III, rule 4 of the C.P.C., therefore, application submitted along with same was not maintainable too, was found to be without substance on the ground that though Civil Procedure Code as well as the Evidence Act both were not applicable yet, proceedings before the Rent Controller were not to be frustrated by mere formalism as in such cases the only requirement was to ensure that no party is prejudiced by the procedure adopted by him. In the case of Shaikh Muhammad Ibrahim v. Syed Abdul Aziz Shah and others 1990 SCMR 542, the objection taken that since before withdrawing the earlier eviction application permission was not sought from the Court within the ambit of Order XXIII, rule 1, C.P.C., therefore, the subsequent application was not maintainable too, was repelled and it was laid down that though C.P.C. was not applicable to the rent cases yet, equitable principles might be applied to advance justice. In a recent judgment delivered in the case of Muhammad Tariq Khan v. Khawaja Muhammad Javad Asami and others 2007 SCMR 118, while referring the cases of Ayub Khan (supra) and Messrs Bambino Ltd. v. Messrs Selmore International Ltd. and another PLD 1983 SC 155; Sh. Abdul Hameed's case PLD 1994 Kar. 379; Atta-ul-Haq's case 1992 MLD 1409; Abdul Hameed's case 1986 MLD 541; Sh. Miraj Din's case PLD 1965 Lah, 374; Sr. Lakshmi Narayan's case PLD 1964 Dacca 177; Ahmad-ul-Haq's case PLD 1960 Dacca 452 and Mst. Fatima Bibi's case 1991 SCMR 1031, it has once again been reiterated that provisions of C.P.C, are not applicable to the rent proceedings in stricto sensu, however, Rent Controller is entitled to follow principles thereof. The contention therefore has no force." Thus, while taking benefit of the wisdom from the referred citations, it can be safely concluded that although Civil Procedure Code is not applicable to the proceedings before the Rent Controller, however, he is not debarred while conducting the proceedings or exercising powers to take guidance from the settled principle of law and justice incorporated in the Civil Procedure Code. Likewise, as it has also been held that the Rent Controller is empowered according to spirit and scheme of law to adopt any suitable mode of law while exercising the powers as the circumstances and the administration of justice demands.

9. The prayer clause of Writ Petition No. 215/2013 is also very amazing. The respondent prayed for setting-aside the order dated 11.10.2012 which is passed in his favour and he cannot be termed as aggrieved from the said order. Although it also appears that the date has been specifically mentioned in the prayer clause by subsequent correction duly signed by the learned counsel but still it appears to be an error. In fact the respondent wanted the vacation of the order dated 7.1.2013 passed by the Rent Controller whereby ex-parte order has been recalled.

10. In view of above listed reasons, the order dated 7.1.2013 is validly passed by the Rent Controller, hence, against such order no writ petition is competent. Consequently; while setting aside the impugned judgment, Writ Petition No. 215/2013 stands dismissed.

11. So far as the proposition in other Writ Petition No. 249/2013 filed by the appellant herein is concerned, in view of the conclusion drawn hereinabove, regarding Writ Petition No. 215/2013, in our considered view, it hardly requires any detailed findings because the matter has been reopened by the learned Rent Controller. Although the order challenged in the subsequent writ petition filed by the appellant prima-facie, is not consistent with the principle of law. However, much time has been elapsed, therefore, now it will be merely an academic discussion to record any findings in this regard. In our view, on the ground of breach of peace, none of the parties, whether the tenant or landlord can be deprived of the vested legal rights. As the order dated 21.2.2013 on the face of it appears to be improper but as it has been observed hereinabove, that the ejectment application is reopened for rehearing of the parties by the Rent Controller, therefore, in this perspective proper course for the Rent Controller is that to pass a fresh speaking order on this issue after hearing the parties and reconsidering the overall circumstances. This appeal in the above stated terms is partially accepted with no order as to costs. ZC/80/SC(AJ&K) Case remanded.