P L D 1964 (W (PLP)

ANWARUL HAQ, J.‑Mr. Gul Muhammad Khan raises the following contentions: (a) That the provisions of Order IX, rule 13, Cr. P. C., were not applicable to the proceedings before the Rent Controller and, therefore, the ex parte order made by him against the respondent‑tenant could not have been set aside, and (b) that, in any case, the application presented to the Rent Controller for setting aside the ex parte order was not proper inasmuch as it was not signed and verified by the respondent S. M. Hussain as he was away to India on the relevant date.

2. There is no force in either of these contentions. The question whether the provisions of the Civil Procedure Code apply or not to proceedings before a Rent Controller was considered by a Division Bench of this Court in Sheikh Muhammad Nawaz v. Muhammad Azeem and others (P L D 1961 Lah, 788) and it was observed that: "the Code does apply by virtue of section 141, Civil Procedure Code, which provides that the procedure prescribed in the Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil juris diction." The learned counsel contended that their Lordships of the Division Bench did not consider the effect of sections 16 and 17 of the West Pakistan Urban Rent Restriction Ordinance, 1959, while coming to the conclusion just mentioned, and in support of his argument he placed reliance on the decision of a learned Single Judge of this Court in Dr. Ilyas Dobash v. Muhammad Iqbal (P L D 1960 Lah, 1112). In that case A. R. Changez, J., while dealing with the question whether a Rent Controller could extend time for the deposit of arrears of rent, observed that section 148 of the Civil Procedure Code was not applicable in terms to proceedings under the West Pakistan Urban Rent Restriction Ordinance, 1959. He went on to say that: "Section 16 of the Ordinance, however, provides that for the purposes of the Ordinance an appellate authority or a Controller appointed under the Ordinance shall have the same powers of summoning and enforcing the attendance of witnesses and compelling the production of evidence as are vested in a Court under the Code of Civil Procedure, 1908. The Code of Civil Procedure, as such, has not been made applicable to the proceedings under the Ordinance and it is only for the limited purpose of summoning and enforcing the attendance of witnesses and compelling the production of evidence that powers have been given to the Controller and the appellate authority under section 16 of the Ordinance as are vested in a Court under the Code of Civil Procedure. There is no general power possessed by the Controller to extend the time fixed by him for the payment of the arrears. He does not appear to be armed with all the powers under the Code of Civil Procedure. Consequently, there could be no question of exercising a power to extend time, when such a power did not exist at all."

3. With great respect to the learned Single Judge who decided the case of Dr. Ilyas Dobash, it will be seen that although he noticed the provisions of section 16 of the Ordinance, yet he overlooked the provisions of section 141 of the Code of Civil Procedure, which has been specifically relied upon by their Lordships of the Division Bench in the case cited earlier, and which is to the effect that "the procedure provided under this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil juris diction". If the procedure prescribed in the Code of Civil Procedure is not applied, as far as it can be made applicable, to proceedings before the Rent Controller, there will be great chaos in the conduct of those proceedings and the parties thereto will always be uncertain as to what procedure a particular Rent Controller is going to apply. Section 16 of the Ordinance is b no means exhaustive on the question of procedure to be adopted by a Rent Controller. It only makes a specific mention of the powers of the Rent Controller and the appellate authority to secure the attendance of witnesses and the production of evidence, but this matter alone does not cover all the questions of procedure which are bound to arise in any proceedings before a Rent Controller. Similarly, the provision contained in section 17 of the Ordinance to the effect that the orders of the Rent Controller shall be executed by a Civil Court having jurisdiction in the are as if it were a decree of that Court does not, in our opinion, exclude the application of the procedure prescribed in the Civil Procedure Code in the matter of regulating the proceedings before the Rent Controller. The result, therefore, is that we are in respectful agreement with the view expressed in Sheikh Muhammad Nawaz's case, namely, that by virtue of section 141 of the Civil Procedure Code, 1908, the procedure prescribed in that Code in regard to suits applies, so far as it can be made applicable, in all proceedings before a Rent Controller. Such being the case, the Rent Controller clearly had power to set aside an ex parte order under the provisions of Order IX, rule 13 of the Code of Civil Procedure, 1908.

4. Before we part with this matter, we may state that this objection regarding the maintainability of the respondent's petition for setting aside the ex parte order against him was not taken before the learned Rent Controller, and there the ground urged was a different one, namely, that the application had not been duly signed and verified by the respondent. This is the second contention raised before us. We find from the last paragraph of the learned Rent Controller's order under appeal that the respondent's application was filed by a duly authorised counsel, namely, Mr. Zakiuddin Pal. It is conceded before us by Mr. Gul Muhammad Khan, on instructions from his client, that the power of attorney of Mr. Zakiuddin Pal bears the same date as the application filed by him on behalf of the respondent. That being so, we do not see how the application filed on behalf of the respondent can be said to be without authority or otherwise irregular.

5. For the reasons given above, this appeal fails and is dismissed in limine. S. Q. Appeal dismissed.