1994 PLP 2414 (MLD)

This appeal arises out of the order passed by IIIrd Senior Civil Judge/Rent Controller, Karachi (Central) in Rent Case No. 445 of 1990 whereby the ejectment of the present appellant has been ordered from the Shop No. 12, Group No. 1, Plot No. 10, Central Commercial Area, Liaquatabad, Karachi. Admittedly, the present respondent is the owner/landlord of the said shop while the present appellant is tenant at a monthly rent of Rs.105. The facts relevant for the purposes of this appeal are-that after filing of the said rent case various attempts were made by the present respondent to get the appellant served with the notice of the case and it appears from the record that on 2/3 occasions, the registered notice was delivered on the given address of the appellant but all the same the Rent Controller ordered fresh notice on every occasion. Ultimately, on 31-3-1991, it was ordered that fresh notice to the opponent be issued on costs by pasting. However, the record shows that a notice was issued which bears the endorsement of the bailiff showing that it was delivered to one Sarfaraz, who was present at. the shop. The Rent Controller on 21-5-1991 held the service good on the basis of such endorsement of the bailiff and acknowledgement due receipts of postal authorities and the case was adjourned to 3-7-1991 for filing of the written statement. On 3-7-1991, Mr. Mansoob Ali Qureshi, Advocate appeared on behalf of the present appellant and moved application for supply of copy of the main application. The order sheet of the Rent Controller shows 'that an order was passed on this date directing the respondent who was present in person to supply the copy of rem application on 7-7-1991, to which date the case was adjourned. Again the order sheet on 7-7-1991 shows that Advocate for the applicant was present while none was present for the opponent/tenant and, therefore, the matter was ordered to proceed ex parte against him and put off to 7-8-1991 for affidavit in ex pane proof. On 7-8-1991 the Advocate for the applicant/landlord filed affidavit-in-ex parte proof whereas on the same day, the Advocate for the opponent/tenant was supplied with the copy of the main application and on the same day he moved an application for setting aside ex parte order. This application for setting aside of ex parte order was dismissed on 4-11-1991 an t finally on 15-12-1991 the judgment was announced directing the present appellant to be ejected from the said shop. Being aggrieved, the appellant has preferred this appeal. I have heard the learned counsel for the parties. Ch. Muhammad Iqbal, the learned counsel for the appellant has argued that in the first instance, the present appellant was never served with the copy of the main rent case and, therefore, no orders directing the case to proceed ex parte against him could have been passed. He has further submitted that the final order of ejectment passed against the present appellant is a consequence of the orders passed on 7-7-1991; and that in the appeal, the whole matter is re-opened as an appeal as nothing to a constitution of the original case. He has further submitted that the order sheet itself shows that the copy was supplied to him on 7-8-1991, whereas ex parte order was passed against him on 7-7-1991 a month earlier. He has placed reliance on the case of Haji Usman v. Haji Shafiur Rehman (1988 CLC 1443). As against this Mr. Nazar Akbar, the learned counsel for the respondent has submitted that the present appellant is guilty of negligence on his part as admittedly he was served with the notice and, therefore, he could not take the plea that the copy was not supplied to him as the normal practice is that bailiff always served the notice alongwith the copy of proceedings. The learned counsel has further submitted that on 3-7-1991 the copy was already available on Court record as the same had been supplied by the respondent even prior to that. He has also submitted that on 7-7-1991 the appellant remained absent and it was his duty to have appeared on that date and to have collected the copy himself. He has further submitted that the appellant has not challenged the orders passed on 4-P1-1991 whereby his application seeking the setting aside .of the ex parte orders have been rejected and by a lapse of a period of 30 days therefrom the said order had attained finality and could not now be re-opened. He has placed reliance on the Division Bench judgment of Lahore High Court in the case of Farhatullah Khan v. Mustafa Ali Khan (PLD 1979 Lahore 132). A further reliance has been placed on the case of Mashlakuddin v. S. Ali Haider (1982 CLC 644) and also the case of Muhammad Shafi v. Bambino Ltd. (1983 CLC 985). I have considered the submissions made by the learned counsel for the parties. It may be observed that as far as the question with regard to maintainability of an appeal against an order passed by Rent Controller refusing to set aside ex parte order, there can be no cavil about the legal proposition that such order is appealable. But the question that requires consideration is whether the availability of such appeal, not having been availed by the affected party, would apply as a bar to filing of the appeal and challenging the final order. Section 21 of the Sindh Rented Premises Ordinance, 1979 provides that and' party aggrieved by an order not being an interim order passed by the Controller prefer an appeal within 30 days. This appeal, therefore, being an appeal challenging the final order of ejectment and being within 30 days thereof is maintainable and is within limitation. Now coming to the merits of the case, the order sheet which is placed on record shows that on 3-7-1991, the Rent Controller had directed the applicant/landlord, who was present on this date in person, to supply the copy to the present appellant. This order sheet of 3-7-1991 does not show if the Advocate for the applicant/landlord was present. Now if the contention of the learned counsel for the respondent is to be accepted to the effect that the copy had already been placed on the record of the Court and on this date, it was on the record then why would the Rent Controller direct the applicant to supply such copy instead of getting the copy delivered to the Advocate for the appellant in Court. A reference may also be made to the notice issued to the appellant for 21-5-1991 on the basis of which the Rent Controller had held the service to be good. This notice does not show if the copy was attached to the notice. Also the report of bailiff does not show that he had delivered the copy of the application to the appellant. The endorsement of bailiff shows that only copy of notice was delivered to one Sarfaraz who was present at the shop. These facts do go to show. that- no such copy was delivered to the appellant till 3-7-1991, whereas it is required of the Court to serve the defendant or opponent with the copy of the application or plaint or any proceedings which are filed against him. Again a reference to the order sheet dated 7-7-1991 shows that no such copy was delivered. All that this order sheet shows is that none was present for the present appellant. I have gone through the record of the lower Court. There is no such copy available on the record which could be delivered to the other side. Throughout the order sheet of the lower Court it has not been shown that such copy has been delivered to the present appellant nor the learned counsel for the respondent could show any proof that the respondent or his counsel has served such copy on the appellant at any stage. However, a reference to the order sheet of 7-8-1991 shows that the copy was supplied to the present appellant but by this date the Rent Controller had already passed an order to proceed ex parte against him. In such eventuality the present appellant could not have filed the written statement unless he was permitted to do so by a specific order passed by the Rent Controller. Even on this date it is not shown if the copy of the affidavit-in -evidence, filed by the respondent, was supplied to the appellant. It is settled law that even in case of ex parte proceedings the defendant or opponent cannot be debarred from participating in further proceedings such as cross-examination of the witnesses or submissions of argument. In the case of Haji Usman v. Haji Shafiur Rahman, Saleem Akhtar, J. (as his Lordship then was) has held as under:-- "Another aspect of the case is that even if the applicant was declared ex parte he could not be debarred from taking part in the proceedings. He had been debarred from filing written statement. After the respondent had filed ex parte proof as the appellant and his Advocate were present they should have been allowed the opportunity to cross-examine the witnesses, which opportunity was not given to them. Without giving such opportunity to the appellant the Controller should not have reserved the matter for orders. If the appellant and his Advocate would have remained absent when the affidavit of proof was filed the Controller would have been justified in reserving or pronouncing the order. The impugned order is, therefore, set aside. The matter will be sent back to II Controller (South), Karachi and the parties are directed to appear before him on 11-5-1988 for which date no notice shall be issued to them." From the above discussion, it appears that the present appellant had not been given due opportunity to defend his case as he was never supplied with the copy of the main rent case before passing ex parte order or even copy of the affidavit-in-evidence filed subsequently. Even otherwise the law favours adjudication on merits. In this view of the matter, I am inclined to accept this appeal, set aside the impugned orders passed by the Rent Controller and remand the case to the lower Court with the direction that the appellant be permitted to file his written statement within 15 days from the date of receipt of R & P before the Rent Controller and to proceed with the matter in accordance with law. The Advocates for the parties .who are present have consented to appear before the Rent Controller on 19-11-1992 before IIIrd Senior Civil Judge/Rent Controller, Karachi (Central). However, there be no order as to costs. A.A./M-1960/K Appeal accepted.