1983 PLP 1407 (CLC)

AJMAL MIAN, J.‑Since in these two petitions common question of law are involved, we intend to dispose of the same by this common judgment. Constitutional Petition No. 343 of 1974.‑The petitioner in this case is the owner of the building, standing on plot No. 3, m Commercial Area of Behar Muslim Co‑operative Housing Society, Karachi. The assessing authority of Division "H" Karachi, in February, 1968 prepared and pub lished a draft valuation list of the area under section 8(1) of the West Pakistan Urban Immovable Property Tax Act, 1958 (hereinafter referred to as the Act) and the property in question was assessed at Rs. 2,485 per month against the previous assessment of Rs. 1,050 per month. The petitioner being aggrieved by the then proposed assessment, filed objections. Upon hearing the above objection, the above assessed amount was reduced to Rs. 1,535 per month in place of Rs. 2,485. . It seems that no appeal was filed by the Department against the above assessment. However, the respondent reopened the above assessment under, section 10(2) of the Act in purported exercise of suo motu revisional lower. The revision was for hearing inter alia on 1st September,1973. It has been averted by the petitioner that he could not attend the hearing on 1st September, 1973 as he was held up in Lahore, because of the floods. However, an employee of the petitioners made a request for adjournment which was declined and the‑assessment was made at the rate of Rs. 2,600 per month. The petitioner filed an. application for setting aside the above ex parte order, but the same was rejected by the impugned order dated 5th December, 1973 on the ground that there was no power vested in the respondent to review the order to set aside the above ex parte order. The petitioner being aggrieved by the above order has filed the present petition. Constitutional Petition No. 344 of 1974.‑The relevant facts of the above petition are that petitioner No. 1 is the owner of building known as sisters lodge standing on plot No. 3 in Commercial Area of Bahadurabad Cooperative Housing Society, Karachi. It seems that in February, 1968 the assessing authority of Division "H", Karachi prepared and published a draft valuation list of the area under section 8(1) of the West Pakistan Urban Immovable Property Tax Act, 1958 and assessed at Rs. 1,900 per month against the previous assessment of Rs. 1,050 per month. The petitioner filed objections to the above draft valuation, where upon it was reduced to Rs. 1,050 per month by an order dated 20th March, 1968. It has been averred that no appeal was filed by the department but the respondent under section 10(2) of the Act issued notice for revising in purported exercise of sue motu revisional power. It has been averred that the revision was ultimately fixed for hearing on 1st September, 1973 when the petitioner was unable to attend for the' reason that he was held up in Lahore on account of floods. It has also been averred that the petitioner's employee made a request for adjourn ment, which was declined by the respondent and thereafter, Rs. 1,800 per month were assessed as letting value. The petitioner thereafter filed an application for setting aside the above ex parte order alongwith a sup porting affidavit, but the same was declined on the ground that the respondent had no power to review his order, The petitioner being aggrieved has filed the above petition. 2. (a) In support of the above petitions Mr. Munawar Abbas, learned counsel for the petitioners has urged that the, respondent has failed to exercise jurisdiction vested in him by holding that he had no power to recall the order, though such power was inherent. In support of the above submission he has referred to the case of N. Q. Industries‑v. Mrs. Bapal Kaikhusro (P L D 1968 Kar. 589) and the case of Mian Manzar B4shir and others v. M. Asghar & Co. (P L D 1978 S C 185). The first case of Karachi it was held by a yearned Single Judge that the Rent Controller had the power to recall his ex parte order in spite of the absence of an excess provision in the West Pakistan Urban Rent Restriction Ordinance, 1959, inter alia by virtue of section 20 of the West Pakistan General Clauses, Act. Whereas in the above Supreme Court case of 1978, the Supreme Court of Pakistan while considering the question whether a Rent Controller had power to set aside the ex parte order observed that the Rent Controller had rightly exercised his inherent power to set it aside and no exceptions can be taken to it. (b) It is evident from the above two cited and discussed cases that even in the absence of an express provision, the authority concerned competent to set aside ex parte order in order to provide an opportunity to the affected person to be heard.

3. In our view the respondent erred in holding that he does not possess the power to set aside ex parte order. We, therefore, allow the above two petitions and declare the impugned orders as being without lawful authority, and of no legal effect and direct the respondent to bear the petitioner's applications for setting aside the above ex pane order and, therefore, to proceed the cases on merits in case the application are allowed. The applications are to be disposed of within 2 months from the date of the receipt of intimation of this order and the assess ments are to be finalized. In case the applications are allowed thereafter within two months. There will be no order as to costs. M, Y, M. Petition allowed.