2010 PLP 823 (CLC)

ARSHAD MAHMOOD, J.

Through this constitutional petition, Khurshid Ali petitioner has assailed the order dated 7-10-2008 and seeks setting aside of ex parte proceedings initiated by learned Rent Controller, Multan.

2. Facts of the case are that respondent No.2 filed an ejectment petition against the petitioner. Petitioner filed a reply thereto. On 5-9-2008, in presence of learned counsel for the parties the case was adjourned to 7 10-2008. On the same day i.e. 5-9-2008, the respondent No.2 filed an application for early hearing of the ejectment petition upon which a notice was issued to the petitioner for fixation of application for early hearing on 10-9-2008. On the said date i.e. 10-9-2008 although notice had been issued to the petitioner only upon the application for early hearing, he was proceeded against ex parte in the main ejectment petition and the case was adjourned to 17-9-2008 for ex parte evidence. Upon 17-9-2008 ex parte evidence of respondent No.2 was recorded and the case was adjourned to 27-9-2008 for orders. However, on 27-9-20075 petitioner moved an application for setting aside the ex parte proceedings upon which reply was called and the same was dismissed after hearing arguments of learned counsel for the parties hence this petition.

3. Learned counsel for the petitioner submits that case was adjourned in presence of learned counsel for the parties without any objection from the objector/petitioner, therefore, there was no justification for moving an application for early hearing. Adds that notice was allegedly issued to the petitioner only upon application of early hearing and the main case was not fixed for hearing, therefore, petitioner could not have been proceeded against ex parte on 10-9-2008. He went on to argue that undue haste shown in the case manifestly shows that the proceedings were taken to deprive the petitioner of his valuable rights.

4. Heard learned counsel for the parties and examined the record.

5. Perusal of the record shows that on 5-9-2008 the case was adjourned for 7-10-2008 in presence of learned counsel for the parties, however, without appearance of the petitioner proceedings were concluded and the matter was fixed for announcement of order: on 27-9 2008 when an application for setting aside ex parse proceedings was filed which was turned down on 11-10-2008. The proceedings thus show that the same were not conducted in a transparent manner. Firstly the petitioner could not have been proceeded against ex parte on 0-9-2009 when the notice was issued to him only upon the application for early hearing and he had no intimation about the fixation of the main ejectment petition; and secondly he had moved an application for setting aside the ex parte proceedings on 27-9-2008 just after nineteen days of the ex parte proceedings, therefore, the same should have been set aside because it is well settled proposition of administration of justice, that justice should not only be done but it should seem to have been done. The order dated 7-10-2008 is, therefore, arbitrary, perverse and seems to be tainted with mala fide. Even otherwise law favours adjudication on merits rather on technicalities. Resultantly, this petition is allowed and by setting aside the order dated 7-10-2008, case is remitted to the learned District Judge Multan for entrustment of the same to some other learned Rent Controller for its onward disposal in accordance with law. H.B.T./K-65/L Petition allowed.