P L D 2003 Supreme Court 625 (PLP)

FAQIR MUHAMMAD KHOKHAR, J.

This petition for leave to appeal is directed against judgment dated 24-2-2003 passed by a learned Division Bench of the Peshawar High Court in Writ Petition No.68 of 2003.

2. The petitioner filed an application under section 13 of the West Pakistan Rent Restriction Ordinance, 1959 before the Rent Controller, for eviction of respondent No.2 from the disputed shop. After publication of Notice in a daily newspaper, the Rent Controller passed an order dated 1-2-2002 for taking ex-parse proceedings in the case followed by ex parte evidence and order dated 8-2-2002 for the eviction of the respondent No.2 from the disputed shop the possession of the shop was delivered to the petitioner on 28-3-2002. Thereafter, the respondents Nos. 1 and 2 made an application before the Rent Controller under Order IX, Rule 13, C.P.C., for setting aside the ex-parse order/decree dated 8-2-2002 on the ground that in fact the respondent No. 1 was the tenant who had not been impleaded as a party in the ejectment application. The said application was dismissed by the Rent Controller, by order dated 1-7-2002, which was affirmed in appeal by the Additional District Judge, Peshawar, by judgment dated 25-11-2002. However, Writ Petition No. 68 of 2003 of the respondents Nos. 1 and 2 was allowed, by a learned Division Bench of the Peshawar High Court, by the impugned judgment dated 24-2-2003. Hence this petition for leave to appeal.

3. The learned counsel for the petitioner argued that the High Court was not expected to substitute findings of fact recorded by the Rent Controller and the appellate authority. It was further submitted that the application under Order IX, Rule 13, C.P.C was not competent before the Rent Controller. The learned counsel lastly submitted that the High Court ought not have set aside the ex purse decree and the Rent Controller could be asked to decide the application for setting aside the ex-parse order/decree on its merits after recording evidence of the parties.

4. On the other hand the learned counsel appearing for the respondents Nos. 1 and 2 argued that the High Court was justified in passing the impugned judgment of setting aside the ex-parse order/degree of ejectment passed by the Rent Controller with the direction to decide the ejectment application of the petitioner strictly in accordance with law by impleading respondent No. 1.

5. We have heard the learned counsel for the parties at length. We find that the High Court took a prima facie view on the basis of the documents produced by the respondents Nos. 1 and 2 for the limited purpose of deciding application for setting aside ex-parte order of ejectment. The Rent Controller yet to determine the real controversy between the parties as to the existence or otherwise of the relationship of landlord and tenant and the grounds on which the ejectment application is founded. It will be open to the Rent Controller to arrive at the same or a different conclusion in accordance with law. The law favours adjudication of a lis on merits rather than on sheer goes without, saying that, apart from the provisions of C.P.C, every administrative, judicial or quasi judicial Tribunal has the power to recall ex-parse orders in an appropriate case, in the interest of justice and for valid reasons. See the cases of Mian Manzar Bashiri v. M.A. Asghar and Company (PLD 1978 SC 231) and Muhammad Aslaml Mirza v. Mst. Khurshid Begum (PLD 1972 Lahore 603) (Full Bench). The impugned judgment of the High Court does not suffer from any infirmity so as to warrant interference by this Court.

6. We have also observed that one of the learned Judges of the Division Bench had recorded certain adverse remarks against the Rent Controller to be placed in his service record with the direction to the Registrar of the Peshawar High Court to bring the same to the notice of the Administration Committee of the said Court at the time of evaluating the annual performance of the officer. In our view, the orders passed by the Rent Controller did not smack any mala fide or abuse of power and the same were also affirmed by the appellate authority. In these circumstances, the adverse remarks by the learned Judge in Chambers of the Peshawar High Court against the Rent Controller were not called for. Therefore, the same are hereby expunged. 6-A. For the foregoing reasons, we do not find any merit in this petition and the same is dismissed accordingly with the above observations. M.B.A./M-837/S Petition dismissed.