1986 PLP 1310 (MLD)

This First Rent Appeal under section 21 of Sind Rented Premises Ordinance. 1979 (hereinafter to be referred as Ordinance) is directed against the order, dated 20‑10‑1983, of IIIrd Senior Civil Judge and Rent Controller, Karachi whereby he dismissed the application of appellant filed under section 12(.2), C.P.C. read with section 141, C,p.C, for setting aside the ex parte order. The facts are that in the month of May, 1981 respondent Subedan Gul Inayat Shah, filed a Rent Case under section 15 of Ordinance, against the appellant on the ground of default in payment of rent. The written statement was filed in which he denied the allegation of default and disputed the rate of rent. The respondent filed his affidavit in evidence before the Rent Controller whereas neither appellant nor his Advocate appeared to cross‑examine the respondent. However, the Rent Controller decided the case against the appellant and allowed the application of respondent, by order-dated 16‑9‑1982. On 6‑1‑1983, ‑ the appellant made an application under section 12(2) read with section 141, C.P.C. for setting' aside the order, dated 20‑10‑1983 dismissing his application. Appellant filed this appeal against that Order. In the meanwhile on 19‑1‑1983 Execution Application was filed by the respondent to which appellant filed objections and 2,61 order is yet to be Passed. I have heard Mr. Sabir Ansari, Advocate for the appellant and Mr. Masood Shahreyar; Advocate for the respondent. The main contention of the appellant is that dispute between the parties was settled out side the Court, therefore, appellant did not appear before the Rent Controller for the purpose of cross‑examination and adducing the evidence. It is argued that an ex parte order has been obtained by way of fraud, therefore, the order is liable to be set aside. He has reported case in P L D 1983 S C 155, P L D 1983 Quetta 36 and 1972 S C M R

228. Mr. Masood Shahreyar, contended that appellant had knowledge about ex parte order but he did not file rent appeal. He filed suit and stay was cbtained which has been vacated and appeals before Additional District Judge was also dismissed on 6‑1‑1983. The contention of the learned counsel is that against the final order no appeal has been filed, therefore, the appeal against interlocutory order is not maintainable. He is referred the case of reported in 1984 C L C 1690, 1984 C L C 2898, 1982 C L C 644, 1985 C L C 316 and 1983 C L C 1985. In case of Taj Ali v. Abdul Haq; reporter: in 1972 S C M R

228. The compromise was filed and order was passed by the Rent Controller on the basis of compromise but in spite of that the tenant did not vacate the premises. In the instant case no such compromise was filed in the Rent case. In case of Mehmood Ahmed and Sons v. M.A. Marker, of ported in P L D 1983 Quetta 36 it was held that during the pendency of ejectment petition parties entering into fresh agreement for enhancement of rent cause of action accrued to landlord no more subsisted in view of agreement of landlord' and tenant to increase rent and landlord to fresh tenancy, therefore, ejectment application become infructuous. In this case the compromise was not filed in the Court by the parties and alleged compromise is disputed by the appellant. Both the above cases are not relevant for disposal of this Rent Appeal. The appellant filed an application under section 12(2), C.P.C. which has rightly dismissed by the Rent Controller as C.P.C. is not applicable to the rent proceedings under the Ordnance. In case of M. Yousaf v. Wali Muhammad and another reported in 1984 C L C 1690, it has been held as under:‑ "It has been held by Mr. Justice Naeemuddin. The question of following the equitable principles contained in the Code of Civil Procedure .did not arise in the present case for this was not case of execution of decree wherein the absence of any specific rules, equitable principle contained in the Code of Civil Procedure could be followed but it was a case of questioning an ex part order allegedly obtained by practising fraud upon the authority. Therefore, a suit against such an order could have been maintained under section 9, C.P.C. because the provisions, o section 12(2), C.P.C. are not made applicable to the rent proceedings under the Ordinance See Rajwant Prasad Pande and others v. Ram Ratan Gir and others." In case of Messrs Bambino Ltd. v. Messrs Selmor International Ltd. and another, reported in P L D 1983 S C 155, it has been held that execution proceedings C.P.C. not applicable to proceedings before Rent Controller but Rent Controller is free to follow equitable principle contained in C.P.C. The evidence of respondent has gone unchallenged and R en Controller passed the eviction order on 16‑10‑1982 which has bee C final. The Rent Controller has rightly dismissed application filed under section 12(2) of C.P.C. The order is proper one. The appeal is dismissed. M.Y.H. Appeal dismissed.