2017 PLP 1622 (YLR)

IKRAMULLAH KHAN, J.

Appellants have filed instant appeal against the order/judgment dated 14.10.2015 rendered by learned Canton-ment Rent Controller, Mardan, whereby, ejectment petition of the respondent was accepted.

2. Brief facts of the case are that respondent brought ejectment petition along with recovery of monthly rent with effect from August, 2004 till date before learned Cantonment Rent Controller, Mardan in respect of Flat No.CB-328 against the appellants on the ground that appellant No.1 without prior permission of the respondent subletted some portion of the flat in question to appellant No.2. The appellants were summoned and accordingly they appeared on 18.08.2015 and thereafter, they did not appear before the Court, hence, they were proceeded ex parte. During the course of ex parte proceedings on 06.10.2015, the appellants along with his counsel appeared and submitted application for setting aside the ex-parte proceedings. The learned Trial Court accepted the said application and the ex parte proceedings were set aside with direction to appellants to file written reply to the ejectment petition, but they again failed to comply with the Court direction. Hence, learned Trial Court struck off their right of defence and decreed the ejectment petition vide impugned judgment dated 14.10.2015 and appellants were directed to vacate the premises in question and hand over the vacant possession to the respondent within thirty days positively from the date of announcement of the order.

3. I have heard arguments of learned counsel for the parties and have gone through the available record.

4. The record reveals that on account of default in submission of written reply on behalf of appellants, the learned Court below had not only struck off defence of appellants but also rendered order of eviction of the premises under consideration. It could not be denied that learned Court below was exercising its jurisdiction in matter in hand under Cantonments Rent Restriction Act, 1963, whereas, the provisions contained in Section 17(2) of the ibid Act prescribe a special procedure to be adopted by the Rent Controller before passing any final order in regard to eviction of a tenant or otherwise, which read as:-- "

17. Eviction of Tenant.

(1)

(2) A landlord who seeks to evict his tenant shall apply to the Controller for an order in that behalf, and the Controller may, after giving the tenant a reasonable opportunity of showing cause against the application, make an order directing the tenant to put the landlord in possession, if he is satisfied that- (i) the tenant has not paid or tendered the rent to the landlord within fifteen days of the expiry of the time fixed in the agreement of tenancy for payment of rent, or in the absence of such agreement, within sixty days following the period for which the rent is due; or (ii) the tenant has, without the written consent of the landlord,- (a) transferred his right under the lease or sublet the building or any portion thereof; or (b) used the building for a purpose other than that for which it was leased; or (iii) the tenant has committed such acts as are likely to materially impair the value, look or utility of the building; or (iv) the acts and conduct of the tenant have been a nuisance to the occupiers of buildings in the neighbourhood; or (v) where the building is situated in a place other than a hill station, the tenant has ceased to occupy the building for a continuous period of four months without reasonable cause; or (vi) the landlord intends to demolish the building for constructing a new building on the same site and has already obtained the necessary sanction for such construction from the Cantonment Board: Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building and may extend such time so as not to exceed three months in the aggregate".

5. It is settled principle of law that the Court shall follow and act as provided under the law, but in case in hand, no show cause notice either after filing the application under Section 17 of the Act or thereafter, when the defence was struck off was served upon the appellants. The ordinary summons could not be substituted for a show cause notice and without show cause notice, the whole proceedings shall be void ab initio. In light of the provisions contained in Section 27 of the ibid Act, the power of the Controller is curtailed to pass order of eviction under Section 17 of the Act, except after holding an inquiry and the inquiry does not mean to consider the allegation put forth by a party in his pleadings but the Court shall give an opportunity to both the parties to substantiate the facts alleged in their respective pleadings through proper evidence in this respect. No doubt, the Controller has been conferred with the powers, in term of subsection 2(b) of Section 27 of the ibid Act to compel the discovery and production of any document and other material evidence, while sub-section (2) of section 27 of the ibid Act provides that for the purposes of holding an inquiry under this Act, the Controller and the Appellate Court shall have the same powers as are vested in a court under the Code of Civil Procedure, 1908 (Act V of 1908), when trying a suit in respect of the following matters, namely:- (a) summoning and enforcing attendance of any person and examining him on oath; (b) compelling the discovery and production of any document and other material evidence; and (c) issuing a commission for the examination of witnesses.

6. So, in case of violation of direction of the Rent Controller for non-submission of written reply, the Rent Controller may adopt, the punitive procedure provided under the Civil Procedure Code, 1908 in term of Rule 3 of Order XVII, C.P.C. while exercising its power conferred upon it in term of subsection (2) of Section 27 of the Act, but while exercising such powers, the Controller shall adopt the whole procedure and shall give prior notice to the delinquent party in term of Rule 3 of Order XVII, C.P.C. But in case in hand, the learned Rent Controller had not issued the required notice to the appellants prior to struck off his defence, which itself is gross illegality occasioned by the learned Rent Controller. Apart from the illegality as mentioned hereinabove, the learned Rent Controller had not adopted the command of subsection (1) of section 27 of the ibid Act as no inquiry has been conducted by him before passing order of ejectment. The power conferred on any Court in term of section 17(3), C.P.C. may pass forthwith any order in regard to decree or dismissal of a suit but under the limits of Rent Restriction Act, 1963. Such powers could not be exercised to pass an eviction order without conducting proper inquiry as the provisions of subsection (1) of Section 27 of the ibid Act has placed a specific embargo on exercise of simultaneous order of eviction after striking off the defence.

7. In so far as the question of limitation for filing an appeal within 30-days in term of Section 24 of the Cantonments Rent Restriction Act, 1963 is concerned, this appeal had been filed in this Court on 04.01.2016, but mistakenly a Writ Petition No.3848-P/2015 had filed by the appellants before this Court on 04.11.2015, which was withdrawn with permission to file an appeal on 10.12.2015, so the time spent in wrong forum may be condoned in view of Section 14 of the Limitation Act for the purpose. The Writ Petition No.3848-P/2015 was filed in this Court on 04.11.2015 while withdrawn on 10.12.2015, so from 04.11.2015 to 10.12.2015 both the days inclusive are to be excluded for the purpose of counting the period of limitation as provided under Section 24 of the Act, as well as the days spent in obtaining the copies of the order dated 10.12.2015 which was delivered on 22.12.2015 while the application was given on 17.12.2015.

8. It be noted that the impugned judgment dated 14.10.2015 had delivered to appellants on 20.10.2015, so the days in obtaining the attested copies of the impugned judgment from 15.10.2015 to 20.10.2015 (five days) also be excluded which make the instant appeal within time, after excluding the time spent in attested copies and the time spent in wrong forum.

9. Therefore, for the reasons mentioned hereinabove, this appeal is allowed and the impugned judgment is set aside. The case is remanded to the learned Rent Controller in order to follow the prescribed procedure envisaged under the Cantonments Rent Restriction Act, 1963 and thereafter, render an order in accordance with law in the matter. MQ/92/P Appeal allowed.