1990 PLP 1724 (CLC)

Salim Karamally for Respondent. Date of hearing: 15th May, 1990. This appeal arises out of an order dated 9th July, 1989, whereby the learned IVth Senior Civil Judge & Rent Controller, Karachi East allowed the withdrawal of the ejectment application No.146/88 under Order 23, rule 1, C.P.C. on awarding cost of Rs.1,000 to the respondent.

2. Mr. Nisar Ally, learned counsel for the appellant submits that the learned Rent Controller has no power to award cost under the Rent Restriction Ordinance. Reliance is placed by him on 1980 C L C 1062, wherein on a matter under the West Pakistan Rent Restriction Ordinance, 1959, a learned Single Judge of this Court (as he then was) observed that the appellate Court i.e. the District Judge under the said Ordinance had no power to grant cost for adjournment in a case under the said Ordinance.. It was thus held that the learned District Judge, consequently, possessed no jurisdiction to dismiss the appeal on the ground of non‑payment of cost.

3. Mr. Salim Karamally, learned counsel for the respondent submits that the order impugned in this appeal has been passed by the learned Rent Controller under section 17, which gives him such power. Reliance is placed by him on two cases, namely, 1983 C L C 2994 and 1986 M L D

227. In the First case (1983 C L C 2994) it has been held by a Division Bench of this Court that the learned Rent Controller under the Sind Rented Premises Ordinance, 1979, has no power to award adjournment on cost in proceedings under the Ordinance. In the other case (1986 M L D 227), it was held that the learned Rent Controller has no power to award cost on restoration of an application for ejectment under Sind Rented Premises Ordinance, 1979, dismissed for non‑prosecution. None of the rulings are applicable to the facts of the case before me. In the instant case, an application for ejectment was filed on 22nd February, 1988 under section 14 of the Sind Rented Premises Ordinance, 1979 on the ground that the Appellant required the premises rented out to the respondent for her personal use as she had become widow. This application for ejectment proceeded in normal course. Appellant's affidavit‑in‑evidence was filed and she was also cross‑examined. The affidavit‑in‑evidence of the appellant's son was also filed, but he was not cross‑examined though attended the Court several times as adjournments were sought by the respondent. Before the side of the appellant was closed, she made an application, stating therein that the applicant withdraws the case and it may be disposed of as withdrawn with no order as to costs. The learned counsel for the respondent claimed cost as the applicant had sold away the case premises. The learned Rent Controller after hearing the learned counsel for the parties allowed the withdrawal of the ejectment application subject to cost of Rs.1,000 to the respondent. The ground, which appears to have prevailed with the learned Rent Controller for awarding cost was the attending of the Court by the respondent for about 1‑1/2 years and bearing the fee of his counsel and misc. charges. On reading the order, as a whole, I am of the view, that the learned Rent Controller did not pass the above order under section 17 of the Rent Ordinance as the basic ingredient of the provision of section 17, which provides that "where the Controller is satisfied that any application made by a landlord for eviction of the tenant is frivolous or vexatious, he may direct that compensation not exceeding 10 times the monthly rent be paid by such landlord to the tenant" is missing. The provision of section 17 empowers a Rent Controller to award compensation, and not cost, in case he comes to a conclusion that the application has been made by the landlord vexatiously or is otherwise frivolous. In the instant case, the application moved by the appellant for ejectment cannot be said to have been moved vexatiously or it was a frivolous one simply on the ground that she had entered into an agreement for sale with another party in respect of which litigation was pending in this Court. I am, therefore, of the considered view that the learned Rent Controller has no power to award cost to the other party either by disposing of the application on merits or dismissing the same for non‑prosecution or its A restoration or on allowing withdrawal of the ejectment application. The only power, which vests in the Rent Controller, is that which has been specifically provided under section 17, as aforesaid, as proceedings are governed by the Rent Ordinance, which is a Special Law. The appeal is, therefore, allowed with no order as to costs. M.BA./C.159/K Appeal allowed.