P L D 1980 Lahore 335_ (PLP)

Respondent No. 1 filed a petition for ejectment of the appellant and respondent No. 2 from the property in dispute on the ground of default in payment of rent. Only respondent No. 2 contested the petition. The appellant entered appearance before the learned Rent Controller, but was later on proceeded against ex parse. The learned Rent Controller by his order dated 9-2-1977 rejected the petition.

2. The unsuccessful landlord filed an appeal impleading both the respondent No. 2 as well as the appellant as respondents. Before the learned First Appellate Court respondent No. 2 was represented by a counsel, whereas the appellant was unrepresented. In pursuance of the summons served on him by the learned Appellate Court he put in appearance on 12-7-1977, but, thereafter abstained. The file does not indicate that any order for conducting ex parte proceedings against him was passed.

3. It appears that on 25-4-1978 when the appeal came up for hearing before the learned District Judge, respondent No. 2 made an offer to vacate the demised premises if two years' time limit was given to the tenants respondents. This offer was accepted by respondent No.

1. Accordingly, the learned District Judge recorded the statements of respondents Nos. 1 and 2; and on the same date passed an order in terms of the compromise reached between them, directing the tenants to hand over the possession of the property in dispute to respondent No. 1 within a period of two years. The validity of this order has been challenged by the appellant on the ground that he was arrayed as respondent in the first appeal; he was not party to the compromise and was condemned without having been given an opportunity of being heard.

4. The stand taken by the appellant is fully supported by the record. Learned counsel for respondent, however, contended that the appellant never contested the proceedings before the learned Rent Controller. He was not even in possession and was proceeded against ex parte. It was urged that even before the learned First Appellate Court he appeared once only; he was liable to be proceeded ex parte, but due to the omission of the Court .such. an order was not recorded on the file. In his submission, the ejectment order passed by the learned First Appellate Court on the basis of a compromise was binding on the appellant. 5. 1 have examined the record. It is difficult to agree with the respondents' learned counsel. Admittedly, the appellant was a party to the first appeal. The ejectment petition was dismissed by the learned Rent Controller. The appellant had a right to be heard in appeal. Undeniably was not a party to the compromise reached between respondents Nos. 1 and

2. He, therefore, cannot be bound thereby.

6. There is thus no alternative but to accept this appeal. It shall be open to respondent No. 1 to raise any plea before the learned First Appellate Court.

7. For the foregoing reasons this appeal is accepted, the impugned order set aside and the case is remanded to the learned District Judge, Jhang, who shall pass a fresh decision after hearing the appellant.

8. The parties are left to bear their own costs. M. Y. M. Appeal accepted.