1988 PLP 633 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.--This appeal by leave arises out of order dated 24th April, 1985, whereby a learned Single Judge of the Sind High Court, Sukkur Bench, dismissed in limine the appeal filed by the appellant herein against the order of eviction passed by the Rent Controller.

2. The Rent Controller, Ghotki, passed an order of ejectment ex parte against the appellant, who is a tenant of the respondent in a shop, on the application filed by the respondent. On appeal preferred by the appellant, a learned Single Judge of the Sind High Court set aside the ex parte order of eviction and remanded the case for a fresh decision by his judgment dated 21st March, 1984. The directions given by the learned Judge in the last paragraph of his judgment are material for the present purposes which may be reproduced as under:

"As this appeal is being allowed on a technical plea raised by the appellant it .is necessary to ensure that minimum prejudice should be caused to the respondent and no further delay should occur causing prejudice to the interest of the respondent. I direct the parties to appear before the learned Rent Controller on 30th April, 1984, on which date the appellant .will file his written statement. No notice will be issued by the Rent Controller for this date as order is being announced in the presence of the counsel for both the parties. After the written statement is filed the Rent Controller will proceed to dispose of the case on merits allowing no adjournment and finalize the proceedings within a short time as far as possible not exceeding six months." It seems that when the case was taken up on 30th April, 1984, none of the parties or their counsel were present, with the result that no written statement was submitted by the appellant. However, as the Presiding Officer of the Court was also on casual leave, the case was put off for the appearance of the parties to another date. It seems on 16th June, 1984, both parties appeared before the Court and as the appellant had not filed written statement by the 30th April, 1984, in accordance with the directions given in the remand order by the High Court, the respondent moved an application for striking off his defence. Eventually on 15th September, 1984, the appellant filed his written statement, but the learned Rent Controller by order of the same date struck off his defence on the ground that he had failed to file written statement, on 30th April, 1984, as directed by the High Court. Thereafter, the learned Rent Controller once again passed an ex parte order of eviction against the appellant on 21st January, 1985.

3. As already observed the appeal filed by the appellant against the said order was dismissed in limine by the impugned judgment.

4. Leave was granted to consider the contention of the appellant that he had no notice of the direction given by the learned Single Judge while remanding the cape to the Rent Controller as reproduced above, and, therefore, the absence of the appellant on 30th April, 1984, to file the written statement was not deliberate or contumacious to entail the striking off of his defence. In this connection certain facts which were not brought to the notice of the learned Single Judge who passed the impugned order were pointed out. These facts are that the detailed reasons were written by the learned Judge in the High Court on the earlier occasion when the remand order was passed, subsequently but on the date of the announcement of the decision in appeal, a short order was passed dated 21st March, 1984, which reads as follows:- "The appeal was heard and judgment was announced in Court. The detailed judgment has however dictated in chamber after Court - hours. The Deputy Registrar, before sending the case .... R & P to the Rent Controller, should issue notice to the parties and inform them of the date of appearance before the Rent Controller which has been fixed as 30th April, 1984. Advocate's signatures noting the date of hearing before the R.C. should be obtained and to ensure their appearance before the R.C." It was asserted that the Deputy Registrar of the Court did not issue any notice to the appellant informing him about the date of his appearance before the Rent Controller, which was. fixed by the Court in the short order. It was submitted that the short order as well as the detailed reasons in support thereof were recorded by the learned Single Judge in Chambers and not in the presence of the parties.

5. In support of this appeal learned counsel for the appellant has urged the same contention and has argued that in the circumstances the learned Judge in the High Court was not justified in holding that the order in the previously decided appeal was passed in presence of both counsel of the parties and as such the appellant was fully aware of the directions given by the learned Judge and similarly the Rent Controller was also not justified in proceeding ex parte against the appellant.

6. Learned counsel for the respondent did not controvert the facts herein above mentioned, and therefore, it seems to us that if these facts had been brought to the notice of the learned Judge who passed the impugned order, he would not have rejected the plea of the appellant that his absence before the Rent Controller was not in violation of the directions of the High Court. Counsel, however, contended that notwithstanding the fact that the appellant was not aware of the date of hearing fixed by the High Court for appearance of parties before the Rent Controller on 30th April, 1984, nevertheless when he subsequently appeared before the Rent Controller he must have been aware of the directions, and therefore, ought to have filed a written statement as soon as he acquired such knowledge. But admittedly the appellant sought adjournments and filed a written statement long afterwards on 15th September, 1984. On these facts learned counsel emphatically contended that the appellant was clearly guilty of negligence and in terms of section 19(2) of the Sind Rented Premises Ordinance, 1979, the Rent Controller was justified to make an ex parte order and pass the eviction order on the evidence of the respondent. We find no substance in this contention. In the first place, the respondent is not entitled to support the order of the Rent Controller on an entirely new basis other than the one on which he proceeded. It is clear from the order of the Rent Controller dated 15th September, 1984 that the only question considered by him was whether the appellant had failed to appear before him on 30th April, 1984, deliberately and willfully and had thus failed to file his written statement as per directions of the High Court. In the concluding part of the order the learned Rent Controller stated as under:- "As per diary of the Court dated 16-6-1984, the opponent has appeared in Court without any notice. It shows that the opponent had knowledge of his case and order of Hon'ble High Court, therefore, it cannot be believed that the opponent has not deliberately complied with the order and 'has remained absent." From the order of the Rent Controller also it is clear that he was under the impression that the short order as well as the detailed reasons were dictated in the presence of the counsel for the parties, which is admittedly not the case. Therefore, the decision of the Rent Controller was not founded upon facts which have been placed before us. Nowhere in the order the Rent Controller has given a finding that the appellant was negligent in submitting his written statement subsequent to his appearance before the Rent Controller. Secondly we feel that the reliance on section 19(2) is misconceived in so far as the same is a part of the procedural provisions which is normally attracted on the institution of the proceedings in the first instance. Therefore, the punitive provisions contained in section 19(2) would apply when notice of the institution of ejectment proceedings is served upon the respondent but he fails to file his reply "without any reasonable excuse". In this case as held by the High Court in the first round of litigation the respondent was not served and therefore the question of his not filing written statement at that time does not arise. The proceedings before the Rent Controller after the order of remand were governed by the directions contained in the remand order, but on the admitted facts, since the Deputy Registrar did not issue notice to the parties as directed, it was impossible for the appellant to appear and file his written statement on 30th April, 1984.. In any case these facts constitute a reasonable excuse for his failure, to do so.

7. For the foregoing reasons this appeal is allowed with no order as to costs and the case is remanded to the Rent Controller for fresh decision on merits on the basis of the pleadings of the parties already on record. The Advocates for the parties who are present have been informed and directed that the parties now must appear before the Rent Controller on 10-2-1988 and in case of non-appearance would suffer the legal consequences arising there from. The Rent Controller is further directed to dispose of the case expeditiously. S.Q.IA-176/S????????????????????????????????????????????????????????????????????????????????????? Case remanded.