P L D 1979 Karachi 238 (PLP)

"Whether the Rent Controller can set aside an ex parte order ?" The. conclusion according to the majority view on the review of case‑law was summarized by K. E. Chauhan, J. (as he then was), as follows "My study of the above case‑law, however, gave me an impression that where for example the defendant had no notice of the date of hearing or where he prayed for an adjournment which was refused and he was proceeded ex parte or where the record of the trial Court can itself show that there was no justification to proceed ex parse against the defendant or that there has taken place an error, defect or irregularity in the matter of proceeding ex parte against him or in the procedure of the trial in that behalf, there a defendant can always raise all these points in appeal, but in cases where this is not the situation, there the defendant‑appellant will be in a great disadvantageous position ; because the Court of appeal will not be in possession of the materials which prevented his appearance. In these cases, such grounds will not be available for being taken in appeal either. What then is to be done ? The only reasonable view, therefore, is to hold that the defendant will have a right to approach the original Court to claim an opportunity to show cause for his absence and demand a re‑trial of the matter." This view was taken upon the proposition that there always exists an implied and inherent power in every Tribunal to set aside orders passed in the default of appearance of party, although it .is now well settled upon high authority that a Rent Controller is not bound to follow the procedure laid down in the Code of Civil Procedure. Following an earlier case reported as Siraj Din v. Mst. Iqbal Begum (P L D 1968 Lab. 639) his Lordship summarised the final conclusion (the majority view) in the following words;

"Taking the same view, therefore, I hold that Civil Procedure Code, is not applicable to a Rent Controller for its own force and so also is not applicable Order IX, rule 13, C. P. C. and a view to the contrary in Syed Nafis Ahmed Zaidi v. S. M. Hussain is not correct only to this extent. But on general plan a Rent Controller is not precluded on the basis of natural justice to recall an Order made ex parse against the tenant on the ground that he was precluded on the relevant date from appearing due to a sufficient cause." There was unanimity in the opinion of all the learned members of the Bench that Article 164 of the Limitation Act was not applicable in a proceeding under the Ordinance and, therefore, the limitation provided therein would not apply to an application for setting aside an ex parte Order passed by the Controller. However, the Bench left the question open whether Article 181 of the Limitation Act would be applicable to such an application as on the facts of the case the question was not material.

5. On the authority of the aforesaid case, learned counsel contended that the application of the appellant was competent under the law and the learned Rent Controller ought to have considered the question whether the appellant was prevented from appearing in the case for sufficient cause.

6. Mr. Muhammad Sharif, learned counsel for the respondent, on the other hand, maintained that the case of Muhammad Aalam Mirza does not lay down the correct law and contended that as held in Hazoor Bux v. Muhammad Yakoob, the Rent Controller wail bound to follow the provisions of Article 164, Limitation Act as the provisions of Order IX, rule 13, C. P. C, apply to proceedings for setting aside ex parte Order under the Ordinance by analogy. So far as the case of Hazoor Bux is concerned, the learned Single Judge did not notice the Full Bench case referred to above and in taking the view as mentioned earlier, be followed Din Muhammad v. Abdul Aziz (P L D 1967 Lab. 653) but that case was duly noticed by the Full Bench and overruled on the ground that section 141, C. P. C. is not applicable to proceedings under the Ordinance. Learned counsel for the respondent, however, submitted that the Full Bench had assigned the following reasons for holding that Article 164, Limitation Act is not applicable to an application for setting aside ex parte Order under the Ordinance:

(i) Strictly this Article is applicable to "defendant" on his application to set aside a "decree" passed ex parte against him in a suit but the proceedings under the Ordinance are not the proceedings in a suit. (ii) The proceedings under the Ordinance are not judicial proceedings as the Rent Controller acts in the capacity of persona designata and, therefore, the proceedings are not governed by section 141, C. P. C. (iii) Section 2(10) ‑of the Limitation Act provides that the word "suit" does not include an appeal or an application and since the proceedings under the Ordinance commence with an application ex parte Order passed therein is not an ex parte decree. In regard to the first point, learned counsel argued that the assumption that Article 164 is attracted only to applications under the C. P. C. is untenable inasmuch as Article 164 does not refer to C. P. C. However, I find nothing in the judgment of the Full Bench to indicate that such an assumption was made. It was only held that this Article, by its terms, is applicable to an application to set aside a "decree" passed ex parte in a "suit" by a "defendant" and, therefore, Article 164 is not applicable to an application to set aside an ex parte Order made under the Ordinance. Article 164 was not made applicable further on the ground that section 141 of the Code of Civil Procedure is not at all applicable to proceedings before the Rent Controller. There cannot be any dispute in view of the authoritative announcement of the Supreme Court in Khadim Mohvuddln and another v. Ch. Rehmat Ali Nagra and another (P L D 1965 S C 459) that the Code of Civil Procedure is not applicable to proceedings under the Ordinance by its own force. Learned counsel, however, cited two old decisions reported in (1914) I L R 37 Mad. 462 and (1914) I L R 41 Cal. 819 and argued that Order IX, rule 13, C. P. C. was made applicable to orders passed in execution of a decree and to probate proceed ings. As far as the first case is concerned, the reason that prevailed with the learned Judges was that Orders passed in execution proceedings under section 47, C. P. C. are decrees as defined in section 2 of the Code and hence ex parte orders passed in execution are ex parte decrees to which Order IX, rule 13 would be attracted. Obviously this line of reasoning cannot be extended to an ex pane Order passed under the Ordinance as such an Order is' not an Order in execution of a decree and the definition of the word "decree" in section 2(2) of the C. P. C. does not govern such Orders. In any case the section 2(2), C. P. C. stood amended at the relevant time whereby the definition of "decree" no longer included an Order passed in execution under section 47, C. P. C. (vide Law Reforms Ordinance XII of 1972). The second case cited by the counsel does not seem to support his submission as the question of applicability of Article 164, Limitation Act to probate proceedings was left open and the application for setting aside ex parte Order granting probate was dismissed on the ground that the applicant was not a "defendant" in the case within the meaning of Article

164. For reasons already mentioned the contention of the learned counsel that the definition of the word "suit" in section 2(10) of the Limitation Act excluding, inter alia, an application does not apply to proceedings in the nature o B suit as are the proceedings under section 13 of the Ordinance, is also untenable in view of the fact that the Code of Civil Procedure is not applicable proceedings under the Ordinance by virtue of its section 141.

7. It was then argued by the learned counsel for the respondent that section 3 of the Limitation Act is applicable to proceedings under the Ordinance and consequently Article 164 will be attracted in case of an application for setting aside an ex parte ejectment Order. Apart from what has been stated above, his contention is devoid of substance. Reliance in this behalf was placed on a case reported in A I R 1946 Mad. 351 which does not appear to be relevant to the point under consideration. Reliance was also placed on Imperial Bucket Company v. Sint. Bhagwati Basak (A I R 1954 Cal. 520) where it was held that the words "suit, appeal or application" occurring in section 29(2)(a), Limitation Act cannot be construed to refer only to suit or appeal filed in a Court but must be extended even to suit or appeal before a persona designata. Even .if this interpretation is accepted, it does not advance the case of the respondent. I might here refer to a recent decision of the Supreme Court reported as M. Imamuddin v. Thai Development Authority (P L D 1972 S C 123) wherein it was held that Article 181, Limitation Act, which is in the nature of residuary Article, must necessarily be extended to all kinds of applications for which no specific period of limitation has been provided for either in the First Schedule to the said Act or in any other statute. Thus their Lordships repelled the contention that the Articles contained in the Third Division of the First Schedule to the Limitation Act apply only to applications under the Code of Civil Procedure. Therefore, even if the Third Division of the Schedule is applicable to an application for setting aside ex parte Order of ejectment, Article 164 does not in terms apply to such an application and at best Article 181 ‑ may be attracted which prescribes a period of 3 years for the making of application.

8. For all the aforesaid reasons I find no substance in the arguments of Mr. Muhammad Sharif that the case of Muhammad Aslam Mirza does not lay down the correct law. The position has now been finally settled by the latest pronouncement of the Supreme Court in Manzar Bashir v. M. A. Asghar & Co. (P L D 1978 S C 231) where their Lordships have laid down that in a case where the Rent Controller passed an ex pane order against the tenant when in fact he was not duly served, the Order would be illegal being in violation of the principles of natural justice and will be liable to be set aside by the Controller in exercise of his inherent power, for, in law such' a power is possessed by every Tribunal. In this case their Lordships noticed the case of Muhammad Aslam Mirza and approved the majority view as to the powers of the Rent Controller to set aside the Order of ejectment in exercise of his inherent power. Respectfully, following the view, held in the case of Muhammad Aslam Mirza, I hold that Article 164 of the Limitation Act was not attracted to the application of the appellant for setting aside the ex part C Order and the learned Additional District Judge was, therefore, in error in dismissing the application on the ground of limitation.

9. In the result, I allow this appeal and set aside the Orders of the learned Additional District Judge and the Rent Controller in appeal before me. However, since the learned Rent Controller did not advert to the merits of the case as to whether sufficient cause was established for setting aside the ex parte Order, I would remand the case for decision on merits to him. The records of this case shall be forwarded to the Court of III Rent Controller, Karachi where the case shall be registered under the same number and disposed of according to law. In the circumstances of the case, there will be no order as to costs. S. Q. Appeal allowed.