1983 PLP 2997 (CLC)

‑‑ S. 21‑Ex parse order, setting aside of‑Tenant before Rent Controller seeking adjournment for filing written statement which was given three times but failing to file such statement‑Rent Controller passing ex parte order of ejectment of tenant and being aggrieved of this order tenant filing appeal before High Court No positive explanation furnished by tenant in support of his plea that Court clerk advised him to settle matter outside Court‑No sufficient reason shown for setting aside order in question ‑Appeal dismissed. Manzoorul Haque for Appellant. Ahmed Said Qureshi for Respondent. Date of hearing : 21st December, 1982. The is a second appeal against the orders dated 25th May, 1978 passed by the learned VI Rent Controller, Karachi, and dated 23rd May 1979, passed by the learned IInd Additional District Judge, Karachi, respectively in rent case No. 747/77, and Rent Appeal No. 451/78., respectively. The relevant facts leading to the filing of the above second appeal are that the respondent filed the above rent case for ejectment inter alia on the ground of default. It seems that the case was fixed for filing written statement but on 30th July, 1977 on the application moved by the appellants' Advocate, the respondent was directed to supply the annexures to the appellant/opponent which according to the learned counsel for the respondent were supplied on 3rd August, 1977. The case was fixed for filing written statement on 18th August, 1977, which was adjourned by consent of the parties on 27th August, 1977. It was again adjourned to 7th September, 1977 and it was adjourned for the third time to 13th September, 1977. On all the occasions the matter was adjourned for the same purpose i. e. for filing written statement. According to the learned counsel 'for the appellant the case was adjourned ‑from time to time, as the parties were making efforts to settle the matter out of Court. It is also the case of the appellant that on 13th September, 1977, the appellant was ready with the written statement but one clerk, Abdul Karim. working in the District Court approached him for bringing about settlement between the parties and, therefore, he did not file the written statement. However, it seems that on 13th September, 1977 an ex perte order was passed. In pursuance of the above order the ejectment‑ order was passed on 15th October, 1977, on the basis of the affidavit filed by the respondent. It also seems that the appellant moved an application for setting aside the above ex parte order on 15th October, 1977. However, the above application was dismissed by the Rent Controller by his aforesaid order dated 25th May, 1978. The appellant being aggrieved by the above two orders has filed the present second appeal.

2. In support of the above appeal Mr. Manzoorul Haq, learned counsel for the appellant, has urged that both the Courts below erred in not accepting the explanation given by the appellant for non‑filing of written statement and for non‑appearance on 13th September, 1977, The above contention seems to be devoid of any force. The ex parte order was passed on 13th September, 1977. The application for setting aside the above ex parte order was moved by the appellant on 5th October, 1977. But from the order dated 25th May, 1978, it seems that even on the date of hearing of the above application for setting aside the ex parte order, none was present for the appellant. However, it has been urged by Mr. Manzoorul Haq, learned counsel for the appellant, that neither the appellant nor his Advocate appeared on the above date for the hearing o the above application for setting aside the ex parte order as the same clerk again approached the appellant for getting the matter settled. In my view the above explanation does not stand to reason. If in fact tire appellant was cheated by Karim, Court clerk, on 13th March, 1917 the appellant could not have been cheated second time by the same person. In any case the appellant was required to be more diligent at best for prosecuting hi application for setting aside the ex parte order. In my view the learned Rent Controller has rightly observed that there was no sufficient reason shown for setting aside the ex parte order. The above finding of the learned Rent Controller has been concurred with by the learned first appellate Court. I do not find, any justification to interfere with the above concurrent finding of the two Courts below. The appeal is, therefore, dismissed but there will be no order as to costs. However, I grant four months time to the appellant to hand over the vacant possession of the premises to the respondent on the condition that the appellant shall continue to deposit the rent in terms of the order of this Court, in case o default the respondent shall be at liberty to file an execution application before the expiry of the above four months period. Furthermore, in ca the appellants fails to hand over the vacant possession of the premises the Rent Controller shall issue a writ of ejectment without any further notice to the appellant. M. Y. M. Appeal dismissed.