1994 PLP 293 (MLD)

This judgment will dispose of Writ Petitions Nos. 803 and 804 of 1993 in which common questions of law and fact are involved.

2. The petitioner has challenged the legality of the order, dated 29-9-1992 passed by the Rent Controller whereby the petitioner's evidence was closed for non-payment of costs and the subsequent order, dated 20-10-1992, whereby his application for recalling the earlier order, dated 29-9-1992 was dismissed.

3. Briefly stated the facts of the case are that the petitioner/landlord filed a petition for ejectment of Anayat Ullah, respondent No.2 from a shop situated in Khasra Nos. 1734 and 1736 Outside Akbari Gate, Lahore. The shop was rented out to respondent No.1 at the monthly rent of Rs.800. The tenant allegedly committed default in payment of rent since May, 1988 whereupon the ejectment petition was filed against him. Respondent No.2 resisted the suit on various grounds including his plea that he was not a tenant under the petitioner and was a tenant under the Lahore Municipal Corporation. The petitioner produced his evidence and then made an application for production of some .documentary evidence which was allowed on 26-9-1992 subject to payment of Rs.1,000 as costs. On 29-9-1992, the petitioner's evidence was closed for non- payment of costs and the earlier order, dated 28-9-1992 was recalled. The petitioner immediately made an application for recalling the said order but his application was rejected on 20-10-1992. It may be mentioned that the petitioner had also filed a transfer application before the learned District Judge which was pending at the time when the impugned orders were passed.

4. The petitioner's learned counsel contends that the learned Rent Controller had no jurisdiction to impose costs while allowing his application for production of additional evidence. In this connection he places reliance on the cases of Abubakar v. Ch. Muhammad Abdullah (1986 MLD 227) and Ismaeel v. The Rent Controller, Shahdadpur and another (1983 CLC 2994). On the other hand, learned counsel for respondent No.2 urged that ejectment petition was filed by way of counterblast to respondent's application for cancellation of the T.O. issued in favour of the petitioner. He also pointed out that in the prayer part of the writ petition the impugned orders have been attacked as a whole, including the permission granted to the petitioner for production of additional evidence. He submits that the order, dated 26-9-1992 imposing costs has not been specifically challenged in this petition.

5. There is considerable force in the arguments raised by the petitioner's learned counsel. The Rent Controller is free to evolve his own procedure for disposal of the eviction petition and can follow the enabling provisions of the C.P.C. or the principles contained therein. However, being a persona designata governed by a special statute the Rent Controller had no jurisdiction to impose costs while allowing the petitioner's application for production of additional evidence. This part of the order, dated 26-9-1992 is clearly without jurisdiction and hence a nullity in the eye of law. Even for non-compliance of the order relating to payment of costs, the Rent Controller was not justified to deny an opportunity to the petitioner to produce the additional evidence. The above view fords support from the cases of Dawood v. Abdul Ghani (PLD 1980 Kar. 269), Ismaeel v. The Rent Controller, Shahdadpur and another (1983 CLC 2994) and Abubakar v. Ch. Muhammad Abdullah (1986 MLD 227). In the cases of Dawood and Ismaeel it was held that the Rent Controller was not empowered to award adjournment subject to payment of costs. In the case of Abubakar it was held that on restoration of an application dismissed for non -prosecution the Rent Controller had no jurisdiction to impose costs. Similarly while granting permission to produce additional evidence, the Rent Controller was not empowered to impose costs. Therefore, the petitioner could avail of the permission to produce additional evidence without payment of costs. The order, dated 29-9-1992 whereby the earlier order, dated 26-9-1992 permitting additional evidence was recalled and the petitioner's evidence closed for non- payment of costs is clearly without jurisdiction, without lawful authority and of no legal effect. The mere fact that the order, dated 26-9-1992 was not specifically challenged in the petition is of no avail to the respondent because the said order was collaterally challenged. The said order was partly in favour of the petitioner (regarding permission to produce the additional evidence) but the part relating to imposition of costs was collaterally challenged while attacking the order, dated 29-9-1992.

6. For the foregoing discussion, this petition is accepted, the impugned orders, dated 29-9-1992 and 20-10-1992 are declared to be without lawful authority and of no legal effect. The order, dated 26-9-1992 to the extent of the E permission granted to the petitioner for producing additional documentary evidence is restored but to the extent of imposition of costs of Rs.1,000 the same is declared to be without lawful authority and of no legal effect. AA./M-1263/L Order accordingly.