Haji ABDUL JALIL vs JAVID AHMAD

ASLAM RIAZ HUSSAIN, J.-The facts giving rise to this petition are, briefly, that Kazi Abdul Hakim father of Ch. Abdul Jalil appellant was, transferred a sarai and the P. T. D. Was issued to him in July, 1963, On his death the property vested in the appellant. He filed an. Application under Rent Restriction Ordinance for ejectment of Javaid Ahmad, respondent who was residing in the premises in question. But during the pendency of the ejectment application the transfer of the sarai in favour of Abdul Hakim was cancelled. The appellant, therefore, requested the learned Rent Controller to adjourn his ejectment application. The Rent Controller thereupon adjourned the same sine die, on 30-1-1974. Abdul Jalil appellant thereafter pursued the case of transfer of property before the Settlement Authorities, which was ultimately restored to him and the order of cancellation of transfer from his name was set aside. Thereafter he applied to the learned Rent Controller for restoration of his ejectment application. This was opposed by the tenant-respondent, but the learned Rent Controller restored the ejectment application by his order dated 26-4-1975 and 2-11-1976 was fixed for production of evidence.

Respondent, however, submitted an application to the Rent Controller requesting him to review his order dated 26-4-1974, but the same was dismissed on 14-10-1976.

2. Javaid Ahmad tenant-respondent filed an appeal against the above-- noted order before the District Judge, Peshawar. Alongwith this appeal he also submitted an application for staying the proceedings in the Court of the Rent Controller. His appeal as well as the miscellaneous application came up for hearing before the learned District Judge, Peshawar on 2-11-1976, i. e. On the same day on which the case was fixed for recording of evidence before the learned Rent Controller. The learned District Judge, admitted his appeal for full hearing and also ordered that proceedings in the Court of the Rent Controller be stayed till further orders. On the other hand, since Javaid Ahmad respondent did not appear before the Rent Controller, he passed an ex pate order of his ejectment on the same day (i. e. On 2-11-1976).

3. The respondent applied for setting aside the ex parte order in 1978, after the same was sought to be executed by the appellant. The learned Rent Controller however, dismissed it on 31-7-1978.

Javaid Ahmad respon--dent then filed an appeal against this Order before the learned Additional District Judge which, too, was dismissed.

Feeling aggrieved Javaid Ahmad respondent filed an S. A. O. In the High Court inter alia on the ground, that the order of his eviction had been passed by the Rent Controller when the learned District Judge, Peshawar, had already issued an order staying proceedings before him (i. e. Before the Rent Controller). After hearing the learned counsel for the respondent, the learned Judge in Chamber formulated three questions for decision, the first one of which was:- "Whether in view of the stay order issued by the appellate Court on 2-11-1976, an ex parte order .Passed by the trial Court on 2-I1-1976 has any legal effect."

The learned Judge in Chamber relying inter alia on Supreme Court judgment, held that as far as this point was concerned the law on the subject was quite clear namely that a stay order becomes operative from the time it is passed not from the time it is communicated to the trial Court. He, therefore, accepted the appeal and reversed the order of the learned Additional Judge as well as that of the Rent Controller.

The appellant filed a petition for leave to appeal before this Court and leave was granted to him on 5-2-1980, in the following words:- "The learned counsel for the petitioner has contended that not disputing the principle upheld by the Supreme Court and enunciated earlier in Karam A.I's case, the moot question requiring determination was whether where the two orders were passed on the same day whether the order of stay passed by the first appellate authority could take effect without showing that it was passed before the Rent Controller passed the order of eviction. There was no evidence according to the learned counsel for, the petitioner to suggest that the appellate authority had passed the order before the Controller passed the eviction order, admitting that both the orders were passed the same day.

The contention raised in this petition is one of law and of general applicability to a number of similar situation, therefore, leave to appeal is granted."

4. The appeal came up for hearing firstly on 25-6-1983. Neither the respondent nor his counsel appeared. The case was adjourned to 27-6-1983.

Even today (27-6-1983) the respondent is absent and no one has appeared on his behalf to contest the appeal. We made an inquiry from the Office as to whether notice was served on him.

On checking the record we found that notice had been issued by the Office to the respondent at Peshawar on 22-5-1983, which we assume must have reached him. Mr. Manzoor Elahi, Deputy Registrar (Judicial) of this Court informed that as a matter of abundant caution a notice was sent to the respondent directly but the Cause List of the cases fixed for hearing this week was affixed on the notice board at Peshawar Registry of this Court, and that Mr. Sharif Khan, Incharge Branch Registry Peshawar also served notice upon Mr. Wazir Muhammad, A. O. R. For the respondent on 26- 6-1983, informing him that the Appeal will come up for hearing on 27-6-1983.

We, therefore, feel that the respondent has been duly served. As such we proceed to hear and decide the appeal in his absence.

5. There is no dispute with the principle that stay order takes effect from the time it is passed irrespective of the fact whether or not it has been served on the person concerned. But the question in this case is whether the stay order dated 2-11-1976 was passed by the learned District Judge, Peshawar, prior to the passing of the ex parte order of ejectment by the Rent Controller on 2-11-1976. Since it is the respondent who alleges that the stay order was already operative when the learned Rent Controller passed the ex parte order of his eviction, the onus of proving that it had been passed earlier in time, lies on him. But as already mentioned above, he has not cared to turn up despite service of notice. Nor has he made any arrangement for his being represented through a counsel to contest the appeal- As such in the absence of any material on the record to that the stay order had been passed prior to the passing of the order of respondent's eviction, we are unable to hold that the order of eviction dated 2-11-1976 had been passed during the existence of the stay order.

The appeal is, therefore, allowed, and the impugned judgment is set aside, with the result that the ex-parte order of respondents eviction stands revived' There shall, however, be no order as to costs.