P L D 2003 Karachi 507 (PLP)

Nemo. for Respondent Date of hearing: 28th April, 2003. By this Appeal the appellant has challenged order dated 28-7-2001 passed by the Additional Controller of Rent Clifton Cantonment, Karachi by which the appellant's application under section 12(2), C.P.C. was dismissed and the order of ejectment dated 3-4-1999 passed against the appellant was maintained. The facts of the matter are that the respondent had filed an application under section 17(2)(i) & (4)(i) of the Cantonments Rent Restriction Act, 1963 against the appellant alleging that the respondent is the owner of Plot No.E-3375, Chandio Village, Gizri Road, Karachi by virtue of duly registered lease-died dated 18-4-1985 and that in the year 1994 a Flat was rented out to the husband of the appellant at the cost of Rs.2,00,000 on Pagri and on monthly rent of Rs.400 and Rs.100 as electric charges and such rent was being paid by the husband of the appellant. It is alleged that after the death of the husband of the appellant, the appellant stopped paying monthly rent with effect from 3-4-1996. It was further alleged that due to non-payment Electricity, Gas and Telephone connections have been disconnected. The respondent alleged that the appellant has made default in payment of rent. Ground of personal need of the premises was also taken in the ejectment application. It appears that the appellant was not served with the notice of the rent case by ordinary means and ultimately the notice was published in Daily Nawa-e-Waqt, Karachi on.12-12-1998. The appellant still did not appear to contest the rent case. Thereafter, the respondent filed his affidavit-in-ex parte proof. On 3-4-1999 the Additional Rent Controller Clifton Cantonment, Karachi passed order allowing the application of the respondent and directing the appellant to vacate the premises within thirty days of the said order. It appears that on 22-12-2000 the appellant filed an application under section 12(2), C.P.C. with' prayers of setting aside the order of eviction and of dismissal of rent case. On 1.7-1-2001 the appellant also filed a separate application for setting aside of ex parte order of eviction. Respondent filed objections to application under section 12(2), C.P.C. After hearing the parties counsel, the Additional Controller of Rent. Clifton Cantonment, Karachi passed the order dated 28-7-2001 by which appellant application under section 12(2), C.P.C. was dismissed on the ground that it was not maintainable. Mr. M. Aziz Malik, Advocate appeared from the side of the appellant whereas none appeared from the side of the respondent. It was argued by the Advocate for the appellant that there is no relationship of landlord and tenant between the respondent and the appellant as the appellant herself is the owner of the flat in question and as such the Rent Controller had no jurisdiction in the matter. Ile has further contended that the notice of the rent case was not served on the appellant and the reports of the Bailiff regarding refusal t6 receive the notice of the rent case and of pasting are based on fraud and that the appellant never came across the newspaper in which notice was published. He has relied upon 1993 CLC 1787; 1992 SCMR 917; Ismail v. Subedar Gul Inayat Shah PLD 1991 SC 997 and 1992 CLC

980. Impugned order of the Rent Controller shows that the application under section 12(2), C.P.C. was dismissed for the reason that section 23 of the Cantonments Rent Restriction Act, 1963 does not allow Rent Controller to reopen the case after its decision has become final. Section 23 of the Act is as follows:-- "

23. Decisions which have become final not to be re-opened.--The Controller shall summarily reject arty application under subsection (2) or under subsection (4) of section 17 (or under section 17-A) which raises subsequently the same issues as have been finally decided in a former proceeding under this Act. " The above-quoted section shows that Rent Controller shall summarily reject application under section 17(2) and (4) or section 17-A which substantially raises the same issues which have been finally decided in the former proceedings under the Act. The provision has some semblance to the principles of res judicata enshrined in section 11 of the C.P.C. The section itself stipulates that it applies to application under section 17(2) or under section 7(4) or under section 17-A of the Act. Thus the provision in itself is descriptive and will have no application to any other provision apart from these mentioned in the section. Application under section 12(2), C.P.C. wild not be covered by the provision of section 23 of the Act. In the case of Ismail v. Subedar Gul Inayat Shah PLD 1991 SC 997 at page 1000. The Hon'ble Supreme Court has observed as follows:-- "There cannot be any doubt that section 12(2), C.P.C. is in recognition of the well-settled principle that every Court or Tribunal has inherent jurisdiction to rescind or recall a void order passed by itself. In the Chief Settlement Commissioner v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331, it was held that the preponderance of judicial, authority supports the proposition that every Authority, Tribunal of Court has power to even suo motu recall or review an order obtained from it by fraud, on the general principle that fraud 'vitiates the most solemn proceedings, and no party should be allowed .to take advantage of his own fraud. On this principle in that case the Court held that there care be no distinction between the powers available in this behalf to a Court of general jurisdiction and a Court or Tribunal of a special or limited jurisdiction, for in either case the effect of fraud is the same and the duty to undo. that effect must lie on the authority on which fraud is practised. Therefore, on the rule that the equitable principles of C.P.C. can be invoked by the Rent Controller and that fraud vitiates the proceedings of a Court or a Tribunal, there can be no escape from the conclusion that the Rent Controller under the Sindh Rented Premises Ordinance has the power to set aside any order which has been secured by practicing fraud or misrepresentation upon him." Therefore not only the application under section 12(2), C.P.C. filed by the appellant was maintainable, but it is also held that it was not barred by the provision of section 23 of the Cantonments Rert Restriction Act, 1963. Accordingly this appeal is allowed and the impugned order dated 28-7-2001 is set aside and the matter is remanded to the Additional Controller of Rent, Clifton Cantonment, Karachi for hearing and deciding the, appellant's application under section 12(2), C.P.C. in accordance with law. M.B.A./S-314/K Case remanded.