1990 PLP 1224 (CLC)

This petition under Article 199 of the Constitution of Pakistan is directed against the order dated 27‑8‑1988 passed by the respondent No.l whereby the order dated 28‑1‑1988 was recalled. The facts leading to the filing of the above petition are that the petitioner is the sole and exclusive owner of the house constructed on Plot No.16‑A/1, Vest Avenue, Phase 1, Defence Housing Authority. It is alleged in the petition that she rented out the above house to the respondent' No.2 for a period of three years effective from 1‑4‑1984. The Petitioner filed eviction proceedings against the respondent No.2 on the ground of default in payment of rent with effect from 1‑4 1986. The service of eviction application was effected on Javed Iqbal, as the respondent No.2 was out of Pakistan. The said Javed Iqbal informed him about the filing of the eviction application against him. Then respondent No.2 executed a power‑of‑attorney in favour of Javed Iqbal and sent the same to him. The said Javed Iqbal filed written statement on or about 13‑12‑1988. The petitioner filed an application for rejecting the written statement but the same was rejected by order dated 28‑1‑1989. On 7‑2‑1989 the rent order was passed. The rent order was duly complied with by the respondent No.2. The respondent No.2 had filed an application for granting permission to defend the rent case and also to permit him to file written statement. The petitioner resisted the application. The respondent No.l taking into consideration the arguments advanced by the learned counsel for the parties, allowed the application by the impugned order and directed the second respondent to file written statement. The petitioner being aggrieved against the impugned order has filed, the present petition. I have heard Mr. K.M. Hussain Dafabu, Advocate in support of the petitioner and Mr. M. Khalid Farooqui, Advocate for the respondent No.2 Mr..K.M. Hussain Darabu raised the following contentions: (1) The respondent No.l has no power to recall the order dated 28‑1‑1989. (2) The attorney of respondent No.2 had admitted relationship of landlady and tenant between the parties. The respondent No.2 cannot deny the same." On the other hand Mr. Klalid Farooqui learned counsel for the respondent No.2 submitted that the order is just and proper in the facts and circumstances of the case. The attorney of the respondent No.2 stated in his written statement that there was oral lease executed between the parties. I w9uld now first deal with the power of the respondent No.l to recall the‑ earlier order or to permit the respondent No.2 to defend the eviction application and to file written statement. According to the learned counsel, only a few provisions of the Code of Civil Procedure have been made applicable; that the provisions of Section 151 C.P.C. have no applicability to the proceedings under the Act; that whatever power has been specifically mentioned in section 27 of the Cantonments Rent Restriction Act and that in these circumstances the Additional Rent Controller has no jurisdiction to allow to defend the application. On the other hand, it was submitted by Mr. Khalid, learned counsel for the respondent No.2 that the Additional Rent Controller in the proceedings taken before him, can evolve its own procedure, that the procedure has to be in conformity and in consonance with the procedure laid down for trial of plaints in the Code of Civil Procedure and that if sufficient cause, is shown, then the respondent No.1 has an inherent power to allow to defend and to file written statement on the principle of justice, equity and good conscience. It was further argued that under section 27‑ of the Act, there is power with the Controller to hold an inquiry under the Act. Subsection l2) of section 17 of the Act provides that the Controller may, after giving the tenant reasonable opportunity of showing cause against the application, make an order directing the tenant to put the landlord in possession if he is satisfied that the tenant has not paid or tendered rent to the landlord as provided in clause (i) or the grounds given in clauses (ii) to (vi) of subsection (2) of section 17 of the Act. At this stage, reference may ado be made to subsection (2) of section 27 of the Act. Subsection (2) provides that the Controller and the Appellate Court shall have the same powers as are vested in a Court under the Code of Civil Procedure, 1908, when trying a suit in respect of the following matters, namely:‑ (a) summoning and enforcing attendance of any person and examining him on oath; (b) compelling the discovery and production of any document and other material evidence; and (c) issuing a commission for the examination ‑of witness." Having referred to the relevant provisions, I would now deal with the merits of the controversy. On the respective contentions of the learned counsel for the parties, the first question that needs determination is whether the application of the provisions of the Code of Civil Procedure, other than the one to which reference has been made specifically, has been deliberately excluded by the Legislature and the Controller is competent to allow to defend the application and to permit to file written statement. The answer has obviously to be in the negative. Under subsection (2) of section 27 provisions like summoning of witnesses, enforcing attendance of any person and examining him on oath, compelling the discovery A and production of any document and other material evidence; and issuing a commission for the examination of witnesses have specifically been made applicable to the proceedings before the Controller not as exhaustive of his power but with a view to make, the processes issued by the Controller regarding the matters referred to above enforceable as processes of the Civil Court. Section 27 specifically provides that no order under section 7, 8, 13, 15, 17 or 19 of the Act shall be made by the Controller except after holding an inquiry. Again subsection (2) of section 17 provides that a landlord, who seeks to evict his tenant, shall apply to the Controller for an order in that behalf and the Controller may, after giving the tenant a reasonable opportunity of showing cause, against the application, make an order directing the tenant to put the landlord in possession, if he is satisfied that a tenant has not paid of tendered the rent to the landlord and the grounds mentioned in clauses of subsection (2), (3) and (4) of section

17. Thus, it is abundantly clear that the Controller is free to allow any procedure which he considers expedient in the interest of justice: In other words, the, Controller is at liberty to follow any procedure that he may choose to evolve for himself so long as the said procedure is not arbitrary, is consistent with the rules of natural justice and does not contravene the positive provisions of law. When such a wide power exists in the Controller, then there will absolutely be no justification to restrict the exercise of that power on the ground that the Legislature impliedly intended to do so by .not applying all the provisions of the Code. In order to do justice and to achieve the purpose for which he was appointed by the Federal Government under subsection (1) of section 6 and it includes an Additional Controller, a Controller would have inherent powers to apply all or any of the provisions of the Code of Civil Procedure, on the principles of justice, equity and good conscience. It is not that such a situation has arisen under this Act only as even under Punjab Urban Rent Restriction Ordinance, 1959, and Sindh Rented Premises Ordinance, 1979 also, a question had arisen in P L D 1983 SC 155 as to what procedure is required to be followed by the Controller. The Hon'ble‑Supreme Court held that "although the Code of Civil Procedure was not applicable in terms to proceedings before the Rent Controller by its own force, the Rent Controller was free to follow the equitable principles contained in the Code of Civil Procedure." I am of the humble view that a Court of Law or a Controller possesses inherent powers to act ex debito justitiae, to do that real and substantial justice for the administration of which it alone exists or he alone is appointed and to do all things that are reasonably necessary for securing the ends of justice within the scope of his jurisdiction. (See D.N. Ray v. Nalin Behari Bose, (1918) Ind. Cases 621 and Hukumchand Boid v. Kamalchand Sing, (1906) ILR 33 Cal‑927, 931). It must, therefore, proceed on the assumption that every procedure is permissible unless it is shown to be prohibited by the law. (Narainsingh Das. v. Mangal Dubey, (1833) I L R 5 All 163 (F.B.). In respect of matters in regard to which the Code ‑of Civil Procedure has made no provision or has made insufficient provision, the Court hag inherent jurisdiction to do the justice between the parties which is warranted under the circumstances and which the necessities of the case require (Hukumchand Boid's case (Supra)). The powers exercised by an Administrative Tibunal are under still, for as pointed out by Sargent, C.J. in Ramchandra Narayan v. Draupadi, (1896) 1 L R 20 Bom. 281, 283), the conduct .of proceedings before a Special Judge who‑ is not regulated by any particular procedure must be deemed to be in his own discretion. After a careful consideration of the several authorities which I have referred hereinabove, I entertain no doubt in my mind that in the absence of a restraining provision a Rent Controller or an Appellate Court under the provisions of the Cantonments Rent Restriction Act, is at liberty to follow any procedure that he may choose to evolve himself so long as the said procedure is orderly and consistent with the rules of natural justice and so long it does not contravene the positive provisions of the law. The elementary and fundamental principles of a judicial inquiry should be observed but the more technical forms discarded. When a Controller acts as a Court and the proceedings before him closely resemble to the proceedings in a Civil Court then on the doctrine of implied power, it can reasonably be inferred that the Controller would have all powers which are reasonable and necessary to do that real and substantial justice for the administration of which he also is appointed and to do all things that are reasonably necessary for securing .the ends of justice within the scope of his jurisdiction. The power of granting permission to defend the eviction application or to permit the tenant to file written statement who was out of Pakistan, in my judgment can be regarded as inherent in all tribunals or authorities which are charged by law with the duty of inquiries with rights and liabilities of parties and/or of deciding their applications or disputes. Where pleadings play an important part in legal proceedings before tribunals or Controllers and other authorities and where they afford the basis of evidence to be called at the inquiry, the power to amend or to allow filing application or written statement must be necessarily attributed as an indispensable adjunct to their jurisdictions. Pleadings, after all, are matters of composition by literate people. Error cannot be completely avoided from any human endeavour much less in matters of writing fir drafting. Under sections 17 and 27 of the Act, the Controller is empowered to ' evolve his own procedure and for the purpose of dealing with an eviction application, he can resort to any provision of the Code of ,Civil Procedure on the principles of justice, equity and good conscience. In order to do real and substantial justice an order of the Controller which does not contravene the positive provisions of the law and is orderly and consistent with the rules, of natural justice, would certainly be legal. In this view of the matter, I hold that the respondent No.l has power to allow the respondent No.2 to defend the eviction application or to permit him to file written statement. After having arrived at the aforesaid conclusion, it has now to be seen as to what principles should be kept in mind by the Controller while allowing permission to defend and/or to file written statement. In my view this matter should not detain me much nor it is necessary to dilate upon it in depth as it would suffice to observe that while dealing with the question of permission to defend and/or to permit him or allow him to file amended application or written statement, the Controller should not ordinarily allow to amend the application or $ written statement as the case may be. But where an application is made, then the Controller must require the party asking for amendment or permission to defend the eviction application to show special circumstances or sufficient cause and in the event of being satisfied that special circumstances or sufficient cause exists, the Controller would be well within his jurisdiction to allow the amendment or to permit the tenant to file written statement. This brings me to the other contention i.e. whether after allowing written statement or amendment, would adduce additional evidence in order to meet the case set up by way of amendment or set up in the new written statement. It may be observed at the outset that when a pleading is allowed to be amended or substituted, an opportunity should generally be afforded to the opposite side to meet the new case by filing any additional statement or letting in such further evidence as may be necessary. I would now deal with the last contention, that is, the attorney admitted the relationship of landlady and tenant between the parties whereas the respondent No.2 pleaded that there existed no relationship of landlady and tenant between the parties. The learned counsel for the petitioner forcefully contended that the respondent No.2 had executed power of attorney in favour of Javed Iqbal in accordance with section 10 of the Powers of Attorney Act, 1971. It is well established that the power of attorney has to be strictly constituted. (See P L, D 1969 Karachi 123). A little analysis of terms of the power of attorney would show that it does not confer power on the attorney to admit the relationship of landlady and tenant when it does not exist, might have by mistake admitted the same or he might be under the wrong impression that there existed relationship of landlady and tenant between the parties. I have already observed that pleadings, after all, are matters of composition by literate people. Error cannot be completely avoided from any I human endeavour much less in matters of writing or drafting. Tribunals or Controllers or other professional advisers, are by no means to be regarded as perfectionists or their pleadings as always error proof. Amendment must not be as common and frequent as pleadings in civil suits. I think it shall not be just and appropriate to take up the question of relationship of landlady and tenant in this petition as the main case is still pending before the first respondent. Section 25 of the Act provides that an appeal against an interim/interlocutory order shall not lie, but it gave a right of appeal only against the final order which lay direct to High Court. Clear object underlying the above law, is that rent cases, unlike the civil suits, may be decided either accepting or rejecting the eviction application is yet to be made, it shall not be fair to cause interference at this stage. Petitioner is not without a remedy and that remedy is, that in case, decision in the eviction application finally goes against the petitioenr, it can be brought under challenge in first appeal before this Court. Piecemeal trial of the cases and decisions in installments besides causing delays, involve the parties in unnecessary expenses of litigation. Consequently, this petition fails and is dismissed in limine. However, the learned Additional Controller is directed to decide the eviction application in accordance with law within four months from receipt of this judgment. Office is directed to send the copy of this judgment forthwith to the learned Controller. In the circumstances of the case, the parties are directed to bear their own costs. AA./A‑734/K Petition dismissed.