19837 PLP 1957 (SCMR)

ABDUL KADIR SHAIKH, J.--This appeal by leave has risen out of an ejectment application filed by appellant under section 13 of the Punjab Rent Restriction Ordinance, 1959, for eviction of respondent 3 from premises bearing No.B-IV-219/220. situated in Hazro Town in Attock district. The grounds on which respondent's ejectment was sought were that he was a defaulter in payment of rent; that he had damaged the premises, and the premises were also required by appellant for re-construction purpose. Respondent entered appearance, filed his written statement, but thereafter he did not join the proceedings, and, therefore, the Rent Controller proceeded with the case ex parte against him and by the order dated 1-3-1983 accepted the ejectment application on all counts and directed respondent's eviction from the demised premises. Respondent thereafter on 19-3-1983 applied to the learned Rent Controller for setting aside of the ex parte order dated 1-3-1983 but the application was rejected by the Rent Controller by order dated 25-7-1983 on the ground that no sufficient cause was made out for grant of the request. Feeling aggrieved by the order dated 25-7-1983 respondent filed an appeal before the learned District Judge Attock. Learned District Judge held that although no case was made out for setting aside the order dated 1-3-1983 but the appellant had failed to make out a case for respondent's ejectment in the ex parte evidence, and therefore, he set aside the original order of ejectment itself which was passed by the Rent Controller on 1-3-1983. In the circumstances, appellant challenged the order of the learned District Judge in Constitution Petition before Lahore High Court but it was dismissed by the impugned judgment dated 31-1-1984. Leave to appeal was granted by this Court in order to examine the plea raised by Mr. Bashir Ahmad Ansari, learned counsel for the appellant that the learned District Judge had erred in law in allowing the appeal against the order dated 1-3-1983 when the respondent had only challenged the subsequent order dated 25-7-1983 whereby the Rent Controller had found that no ground for setting aside the ex part order dated 1-3-1983 was made out. In other words, the point for consideration is that the appeal against the order dated 1-3-1983 was already barred by time, and in fact no appeal was filed against that order, not to speak of any application for' the condonation of the delay, and, therefore, learned District Judge had no authority to interfere with the order of the Rent Controller dated 1-3-1983. After hearing the learned counsel for the appellant in the light of the record before us we find that the grounds on which leave to appeal was granted are not open to any exception. The appeal of the Respondent was directed against the order of the Rent Controller dated 25-7-1983 by which learned Rent Controller had refused to set aside the ex parte order dated 1-3-1983, and it was not directed against the order dated 1-3-1983. Having himself confirmed' the view of the Rent Controller that no ground for setting aside the ex parte order dated 1-3-1983 was made out, learned District Judge had no otter option but to dismiss the appeal. Rather than doing so, he set-aside the earlier order dated 1-3-1983 against which not only', that no appeal was filed but the appeal had been rendered barred by, time, and there was not even application for the condonation of the, delay. For these reasons, this appeal must succeed and it is accordingly allowed, with the result that the impugned judgment of the High Court dated 31-1-1984 as well as that of the District Judge dated 20-10-1983 are set aside, and the order passed by the Rent Controller dated 1-3-1983 in the proceedings under section 13 of the Ordinance is upheld. Since the respondents have not cared to defend the appeal, we make no order as to costs. M.I./H-21/S Appeal allowed.