1985 PLP 1216 (MLD)

S. 13--Appeal against order dismissing application of tenant under O. IX, r. 13, C.P.C. maintainability of--Tenant not only assailing order of Rent Controller rejecting his petition for setting aside of ex parte decree, but also praying that such application be accepted and possession of property be restored to him--Tenant also impugned ex parte order of ejectment in appeal--Order of ejectment being final, held, was assailable in appeal--Landlord, having not challenged jurisdiction of Appellate Court to hear appeal but raising such point for first time while arguing Constitutional petition which ordinarily, even if permissible, could not be allowed at that stage. C.M. Latif Rawn for Petitioner. Qurban Ali Gillani for Respondent No. 1. Nemo for Respondent No. 2. Date of hearing: 28th January, 1984. This petition is directed against order, dated 7-10-1981 of the learned Additional District Judge, Lnhore whereby he set aside order, dated 24-5-1980 of the learned Rent Controller, Lahore and remanded case to him for further proceeding in the matter in accordance with law. 2. The relevant facts giving rise to this petition are that on 17-1-1978 the petitioner filed an ejectment petition against the respondent No. 1 from the property in dispute. Notice was issued to the respondent. The process-server made a report on 22-3-1978, that he had refused to receive notice. Thereafter, a proclamation was made in daily Imroze for service of the respondent and on 22-7-1978 ex parte ejectment order was passed against him. It appears that on 5-11-1978 the petitioner filed execution petition and on 14-6-1979 he succeeded in obtaining possession of the disputed property. On 16-6-1979 the respondent No. 1 moved an application under Order IX, rule 13 read with section 151, C.P.C. for setting aside the ex parte order of his ejectment. The learned Rent Controller, vide his order, dated 24-5-1980 dismissed the same. The respondent preferred an appeal against the aforesaid order, and prayed therein that the aforementioned application for setting aside the ejectment order be allowed and possession of the disputed properly restored to him. The learned Additional District Judge, vide impugned order set aside the order appeal and remanded case to the learned Rent Controller for further proceedings in the matter. Hence this petition. 3. Learned counsel for petitioner contended that the learned Additional District Judge, wrongly reversed the order of the learned Rent Controller in appeal. The respondent was duly served through publication in the newspaper after he had refused to accept service of notice. This contention has no force for the reason that the very notice issued by the Rent Controller for service of the respondent did not contain his address. The so-called report of service made by process-server was rightly disbelieved by the learned Additional District Judge. It was pointed out by learned counsel for the respondent, that the order of ejectment was procured by the petitioner fraudulently. It was further pointed out that neither in the ejectment petition nor in plan attached therewith the particulars of the property in dispute were given. The plan appended with the ejectment petition related to different property than the property in dispute. This submission of the learned counsel for respondent cannot be gone into; because any finding given thereon may prejudice the case of either side before the learned Rent Controller. 4. The other contention raised by the learned counsel for the petitioner was that appeal against the order of the learned Rent Controller dismissing application under Order IX, rule 13, C.P.C. was not maintainable. The perusal of the prayer made in the appeal would show that the respondent not only assailed the order, dated 24-5-1980 of the learned Rent Controller rejecting his application but also prayed that the aforementioned application be accepted and possession of the property restored to him. It appears that he also impugned the ex parte order of his ejectment in appeal. The order of ejectment being final, was assailable in appeal. Moreover, the petitioner neither before the learned lower appellate Court nor in the contents of this petition specifically challenged the jurisdiction of the learned Additional District Judge, Lahore to hear the appeal and raised this point for ,the first time while arguing this petition which ordinarily even if permissible cannot be allowed at this stage in the circumstances of this case. 5. For the reasons, recorded above I am not inclined to interfere in the impugned order, and dismiss this petition with no order as to costs. A . A . Petition dismissed.