1980 PLP 462 (CLC)

This second appeal has arisen out of an ejectment application filed by respondents Nos. 1 to 5, Liaqat Sultan and others, against the appellant, Malik Shah Nawaz Khan and respondent No. 6, Walayat Muhammad Khan for their ejectment from a house. Their ejectment was sought inter alia on the ground that respondents Nos. 1 to 5 had leased out the house to respondent No. 6 but he had sublet the same to the appellant. Respondent No. 6 did not appear before the Rent Controller, who-was seized of the said application, and was, therefore, proceeded ex parte. The appellant, however, put in appearance and filed reply to contest the application. Then the learned Rent Controller fixed the application for 20th June, 1976 for better statement of the appellant but he did not put appearance on that day. The learned Rent Controller, therefore, proceeded against him under Order X, rule 4 (2) of the Code of Civil Procedure, hereinafter referred to as the Code, and passed an order of ejectment against him. Feeling aggrieved by the order of the learned Rent Controller, the appellant filed an appeal before an Additional District Judge but without success. He has, therefore, come up in second appeal t this Court.

2. Learned counsel for the appellant contended that the provisions of Order X, rule 4 (2) of the Code were not applicable to proceedings before the learned Rent Controller and therefore, he had erred in deciding the application against the appellant on the score of those provisions. He maintained that according to subsection (2) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, hereinafter referred to as the Ordinance, the learned Rent Controller bad to satisfy himself as to the soundness of the grounds pressed by 'the respondents Nos. 1 to 5, hereinafter referred to as the respondents for seeking eviction of the appellant and since he did not record any evidence for the purpose of satisfying himself in this behalf, his order was violative of the said pro visions of the Ordinance. The appellants counsel cited Hafiz Muhammad Ikram v. Muhammad Mushtaq (P L D 1978 Lah. 996) to support his arguments.

3. The learned counsel for the respondents did not dispute the pro position that the provisions of the Code were not strictly applicable to the ejectment proceedings but maintained that there was no bar to the follow ing of the procedure laid down therein by the learned Rent Controller. According to him, there was nothing in the Ordinance to preclude the learned Rent Controller from adopting the procedure laid down in Order X, rule 4 (2) of the Code and as such his order was not open to any legitimate exception. It was also submitted by the learned counsel for the respondents that there was enough material on the record to satisfy the learned Rent Controller that it was a fit case for ejectment.

4. I am conscious of the fact that the detailed rules of procedure are, not embodied in the Ordinance and thus there is no harm if the Rent Controller follows the equitable principles embodied in the Code. While so doing he has, however, to take care that the express provisions of the Ordinance are not overlooked. In other words, if any provision of the Code enables a civil Court to do some thing which if done by the Rent Controller would offend against the provision of the Ordinance, the Rent: Controller would not be right in acting in terms of such provision of the Code. If this test is applied to the case in hand, it will be seen that the learned Rent Controller followed the provisions of Order X, rule 4 (2) of the Code in disregard of the provisions of subsection (2) of section 13 of the Ordinance. These provisions of the Ordinance required him to satisfy that all or any of the pleas raised by the respondents for seeking eviction of the appellant were correct and unless that was done, he could not pas an order of ejectment. He, however, did not do any thing to demonstrate his satisfaction. He did not record any evidence of the respondents in support of the averments made by them for obtaining an order of ejectment. One of the contentions raised in defence of the ejectment proceedings was that the relationship of landlords and tenants did not exist between the parties. Unless such relationship is established, a Rent Controller cannot assume jurisdiction. The respondents did not adduce any evidence to show that the said relationship was actually there. The learned Rent Controller could not, therefore, assume jurisdiction and pass the impugned order. This view is supported by the case of Hafiz Muhammad Ikram cited by the learned counsel for the appellant.

5. As for the contention of the learned counsel for the respondents that there was sufficient material on the record to satisfy the Rent Control ler that the respondents were entitled to seek ejectment of the appellant no such material was referred to by the learned counsel for the respondents. Even if there was any such material, the learned Rent Controller should have (after making its mention in his order) stated that in view of that material he was satisfied that the appellant was liable to be ejected. In fact, he did not bother about his satisfaction and simply jumped on the provisions of Order X, rule 4 (2) of the Code to throw the appellant out of the premise, in dispute. There is thus, no merit in the argument of the learned counsel for the respondents regarding the availability of adequate material on the record.

6. For these reasons, I am unable to approve of the procedure adopted by the learned Rent Controller. I, therefore, accept the appeal with costs, set aside the order of ejectment passed against the appellant and remand the case to the learned Rent Controller with the direction that he shall decide the ejectment application afresh in accordance with law and in the light of the aforesaid observations.

7. The parties are directed to appear before the learned Rent Con troller, Mr. Muhammad Aslam or, if he has been transferred, before his successor, on 4th November, 1979 for further proceedings. K.M.A Appeal accepted.