2012 PLP 1973 (CLC)

MUHAMMAD AZIM KHAN AFRIDI, J.

Muhammad Jameel son of Muhammad Ramzan hereinafter referred to as the petitioner has preferred the instant constitutional petition under Articles 199 and 203 of the Constitution of Islamic Republic of Pakistan, 1973, hereinafter referred to as the Constitution against order dated 16-5-2012, passed by learned Additional District Judge, Islamabad, whereby appeal of the petitioner against order dated 28-2-2012 passed by learned Rent Controller Islamabad, was dismissed.

2. Brief facts of the case of the petitioner are that the learned Rent Controller Islamabad, entertaining the ejectment petition of Naseer Ahmad Bhutta respondent No.1, issued notice for appearance of the petitioner and due to alleged non-appearance of the petitioner ex parte order of ejectment dated 7,-10-2011 was granted by the learned Rent Controller, which was impugned by the petitioner by submission of application for setting aside the same which application was dismissed by the learned Rent Controller vide order dated 28-2-2012. Appeal, preferred by the petitioner, against the said order dated 28-2-2012 was also dismissed by the learned Additional District Judge (West) Islamabad, and hence the instant constitutional petition.

3. Learned counsel for the petitioner has argued that the petitioner was neither having knowledge of any ejectment petition nor was served through the process of the Court in any manner. That the petitioner is tenant of one Naseer Ahmad Bhutta and the ex parte order of ejectment was maliciously obtained by respondent No.1 against the petitioner. That the said ex parte order of ejectment is therefore liable to be set aside.

4. Reliance was placed on case-law reported in PLD 1975 Quetta 39, PLD 1964 (W.P.) Lahore 536 and PLD 1968 Karachi 589, PLD 1978 Karachi 238 and PLD 1979 Lahore 132, wherein it was observed that the Rent Controller was competent to review, alter or set aside ex parte order and that order refusing to set aside ex parte decree was appealable.

5. Reliance was also placed on case law reported as 1995 CLC 315, wherein ex parte order was set aside as there was no evidence on record to show that the tenant was avoiding service or that he was served according to law.

6. Learned counsel for the respondent No.1 has argued that the application for setting aside ex parse order was not competent as the ex parte order was a final order and appealable under section 21 of the Islamabad Rent Restriction Ordinance, 2001 hereinafter referred to as the Ordinance. That due to lapse of time limitation, the petitioner is now even barred from filing of appeal.

7. Reliance was placed on case-law reported in 2012 SCMR 377, wherein it was observed by the august Supreme Court of Pakistan that time spent in pursuing the proceedings before wrong appellate forum, cannot be excluded for the purposes of filing an appeal.

8. I have heard arguments of learned counsel for the parties and perused the record.

9. The learned Rent Controller has observed that the petitioner did not bother to appear in the Court and therefore Court notice was ordered to be published in "Daily Azkar". Due to non-appearance of the petitioner, the ex parte proceedings were initiated and ex parte order dated 7-10-2011 was passed.

10. The petitioner has submitted application for setting aside the said ex parte order of ejectment on 21-10-2011. There is no evidence on record to observe that the petitioner was either served or having knowledge of the ejectment petition. The "Daily Azkar" is a publication of limited circulation and not normally read. It seems that the publication was ordered and aimed at accomplishing the formality of effecting service. The same cannot be termed as service effected as required under section 25 of the Ordinance. The proceedings held thereafter cannot be therefore considered to have been held after affording opportunity of hearing to the petitioner.

11. Section 24 of the Ordinance explicates that no orders in respect of increase of rent, or interference with the amenities enjoyed by the tenant, or order for carrying out necessary repairs, or eviction of tenant are to be made by the Controller except after holding an inquiry and affording to the parties an opportunity of hearing. Without effecting service as required, order passed by the learned Rent Controller for ejectment of the petitioner would, therefore, be violative of the provisions of section 24 ibid. I would therefore hold that the petitioner was not served by the learned Rent Controller in the prescribed manners and, therefore, the ex parte order of ejectment passed by the learned Rent Controller without affording reasonable opportunity of hearing to the petitioner would not sustain.

12. The case-law discussed above and relied by the learned counsel for the petitioner suggests that the learned Rent Controller is empowered to entertain an application for setting aside ex parte order and as such the objection of the learned counsel for the respondent would hold no ground.

13. In the light of the above, I accept the instant writ petition subject to payment of costs of Rs. 10,000/- and direct the learned Rent Controller Islamabad (respondent No.2), to expeditiously dispose of the ejectment petition after affording opportunity of hearing to the petitioner in the prescribed manners. HBT/121/Isl.??????????????????????????????????????????????????????????????????????????????????????? Petition accepted.