1979 PLP 599 (CLC)

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... S. 15 and Civil Procedure Code (V of 1908), O. IX, r. 13-Ex parte order, setting aside of-Appellant in all probability having no knowledge of ex parte order of ejectment and execution proceedings against him till actually dispossessed-Appellant deserved to be given an opportunity to defend proceedings. Muhammad Ali Shaikh for Appellant. Abdul Hakim Khan for Respondent. Date of hearing : 13th May 1979. The brief facts of this second appeal are that the respondent landlady applied for ejectment of the appellant from half portion of the House No. 6/441, Liaquatabad, Karachi, on the ground of default in payment of rent. Notice of this application was served on the appellant who appeared through his counsel and filed an application on 14-1-1977, raising preliminary legal issue that there existed no relationship of landlord and tenant between the parties in view of the pending suit filed by the appellant claiming title to the half portion in question and the suit filed by the respondent for cancellation of the lease deed executed by the K. M. C. in favour of the appellant for the said half portion. However, the case was thereafter fixed on 31-1-1977 for written statement. The Court being vacant on this date, the case was put off to 25-2-1977 on which date also the Court continued to be vacant and the case was again adjourned to 14-3-1977. On this date, viz., 14-3-1977, however, the Court was functioning and the learned Rent Controller finding the appellant and his counsel absent made the appellant ex parte and fixed the matter on 29-3-1977 for ex pane proof and thereafter passed the ex parte order on 15-4-1977, directing ejectment of the appellant from the premises in question. The respondent thereafter filed execution proceedings which also proceeded ex parte against the appellant. As a result thereof, the appellant was ejected and possession of the premises was taken over by the respondent on 10-11-1977 with police aid. Being aggrieved, the appellant went in appeal against the ex parte order of ejectment but his appeal was dismissed as time barred by the learned Additional District Judge, Karachi, vide his order dated 17-4-1978. Hence this second appeal. After the appeal was argued at some length by the learned counsel for the appellant, Mr. Abdul Hakim Khan, learned counsel for the respondent taking a very fair stand stated, in presence of the Perokar and husband of the respondent, that in view of the fact that the Court was vacant on the previous dates it was possible that the appellant, who was a simple and illiterate person, had no knowledge of the date of hearing till his dispossession in the execution proceedings and, therefore, it was only fair that he be given an opportunity to defend the eviction proceedings, and consented to the appeal being allowed and the- case being remanded by his consent to the Rent Controller for deciding the eviction application on merits after giving opportunity to the appellant of filing his written statement and leading evidence, after first deciding the application filed by the appellant raising the preliminary issue regarding relationship of landlord and tenant between the parties, if so pressed by the appellant. Since the learned counsel for the respondent has very fairly conceded to the appeal being allowed by consent, I do not find it necessary to go into details. Suffice it to say, I agree with the learned counsel for the respondent that, in the circumstances pointed out by him, the appellant in all probability had no knowledge of the ex parte order of ejectment and the execution proceedings against him till he was actually dispossessed from the premises in question and, therefore, deserved to be given an opportunity to defend the proceedings. Accordingly, this appeal is allowed by consent, and the impugned orders passed by the trial Court as well as the first appellate Court are set aside and the eviction application is remanded to the learned Rent Controller who shall first decide the application filed by the appellant raising preliminary issue regarding existence of relationship of landlord and tenant between the parties and depending on his finding in the issue, thereafter proceed to decide the eviction application on merits, after giving opportunity to the appellant of filing his written statement and leading evidence. There will be no order as to costs. The learned Rent Controller is further directed to dispose of the eviction application within four months, positively, as this is a very old case. Case remanded