1988 PLP 1186 (SCMR)

SHAFIUR RAHMAN, J.‑‑The petitioner, a tenant, seeks leave to appeal against the judgment of Peshawar High Court, Peshawar dated 14‑12‑1987 whereby his Constitutional Petition was dismissed.

2. The appellant was sued before the Controller for eviction from the urban property. He denied the existence of relationship of landlord and tenant. Evidence on this preliminary issue was being recorded and 13th of January, 1987 was fixed before the Controller for cross- examining witnesses produced by the landlord to establish the relationship of landlord and tenant. The following order was passed by the Controller on that date: "Petitioner present. Evidence of petitioner available. Case is called third time and it is 12.40 hrs. but Respondent is absent. Respondent appeared only on second call but failed to cross- examine the witnesses. Previous orders show that Respondent is misusing the process of Court. As a result, defence of Respondent is struck off. It is held that petitioner is landlord of Respondent and respondent's denial of title of petitioner is frivolous. In the light of above, ejectment order is passed against respondent. File be consigned to record room."

3. An appeal was taken to the Additional District Judge, Peshawar who dismissing the same on 2‑5‑1987 observed as follows:‑‑ "The appellant could not establish his title over the suit land through any documents etc. even in the appellate stage. The appellant is enjoying the occupation of the suit house without paying any rent to the respondent". The Constitutional Petition filed by the petitioner was also dismissed by the High Court observing as follows:‑‑ "We are, therefore, of the view that the Rent Controller, on the basis if the inquiry already conducted, the material available on the record, and the case set up by the tenant in view of his conduct before him rightly arrived at the conclusion that there existed relationship of landlord and tenant between the parties and the denial of landlord's title is frivolous. This finding has further been affirmed by the learned Additional District Judge, Peshawar.

4. The learned counsel for the petitioner pointed out that the petitioner could be proceeded ex parte, could be denied the further opportunity to cross‑examine the witnesses but his defence could not struck off. He could not be denied the right to produce evidence and the jurisdiction could not be assumed by the Controller without deciding expressly the question of existence of relationship of landlord and tenant.

5. Mr. M. Bilal, learned counsel appearing for the Caveator has conceded that though the conduct of the petitioner was most reprehensible, the defence could not be struck off without a specific decision on jurisdiction.

6. From the nature of the proceedings the challenge to the jurisdiction and the stage at which an order striking off the defence was passed there remains no doubt that it was done without lawful authority and jurisdiction. We convert this petition into an appeal, accept it, set aside the order of the Controller and those that followed it and remand the proceedings to the Controller for decision in accordance with law. The parties have been directed to appear before the Controller and be present before him on 12th March, 1988 for further proceedings which should be expedited in view of the delay, that has already taken place. No order as to costs.