HAZOOR BUX Versus MUHAMMAD YAKOOB

This appeal is directed against the orders dated 22‑12‑1971, 16‑2‑1972 and 14‑3‑1973 passed by the learned Civil Judge and Rent Controller, Sibi, who, vide first order declared the appellant ex parte, vide second order awarded ex parte decree to the respondent and vide third order refused to set aside the ex parte decree. This appeal is also directed against the order dated 9‑5‑1973 whereby the learned District Judge, Quetta refused to set aside the above mentioned orders of the learned Civil Judge and Rent Controller, Sibi.

2. The facts forming background of this case are that shop No. 464 situated in Sibi Town, belongs to the respondent who leased out the same to the appellant several years back at a monthly rent of Rs.

20. The appellant allegedly failed to pay or tender rent for the period from July, 1968 to June, 1971, thereupon an application for his ejectment from the shop was filed by the respondent on 10.6‑1971 before the learned Rent Controller, Sibi on the ground of default in payment of rent and bona fide personal requirement. In the written statement filed by the appellant both the grounds of ejectment were denied. It was contended that the rate of rent was Rs. 10 per month and that at one stage the entire outstanding rent was sent to the respondent by money‑order and on his refusal to accept the money order, entire rent was deposited in the Court. It was also contended that the shop was not required for bona ride personal use by the respondent as he was already in occupation of a shop in Sibi Town. The learned Rent Controller should have passed an order within the meaning of section 13(6) of West Pakistan Urban Rent Restriction Ordinance VI of 1959 (hereinafter referred to as the "Ordinance") before framing the issues at least for the deposit of future rent in case the arrears of rent had already been deposited in the Court by the appellant but for reasons best known to him he did not do so and proceeded to frame the issues on the points on which the parties were at variance. The issues framed by him are as under:‑----

"(1) Whether the rate of rent was agreed Rs. 20 per month between the parties?

(2) Whether the appellant has committed wilful default in payment of rent from July, 1968 to June, 1971 ?

(3) Whether the respondent needs the premises in dispute for his personal bona fide use?"

On 26‑11‑1971, the learned Rent Controller examined two witnesses of the respondent while on 22‑12‑1971, on which date the appellant remained absent, he passed an ex parte order against him and recorded the statements of the remaining two witnesses including the statement of the respondent. The case was next adjourned to 16‑2‑1972 on which date ex parte decree for the ejectment of appellant was awarded to the respondent.

3. The appellant submitted an application for setting aside the ex parte decree on 10‑5‑1972 and as this application was moved beyond the period of 30 days, therefore, it was supported with an application under section 5 of Limitation Act and an affidavit in which it was deposed that the appellant fell ill on 15‑2‑1972 and he was under the treatment of a private medical practi tioner who advised him ten days' rest in the first instance and subsequently advised him to proceed to Quetta for treatment. The appellant remained at Quetta for some time as a result of which he could not deposit the rent as well as he could not file the application for setting aside the ex parte decree in time. In this affidavit the space provided for mentioning the number of days during which he remained under treatment, has been left blank and therefore the affidavit is completely silent about the period which elapsed between the date he fell ill and the date on which he made application for setting aside ex parte decree. Be as it may, the notice of this application was given to the respondent but as a consequence of his non‑appearance an order was made which is ambiguous in nature and does not disclose if ex parte proceedings were ordered against the respondent. However, his non appearance on 13‑6‑1972 was noted down in the order sheet and the case was adjourned to 26‑9‑1972 for the evidence of the appellant. On 26‑9‑1972 the respondent appeared and filed a rejoinder which was entertained. Although an ex parte order was not made in specific terms against the respondent yet on 26‑9‑1972 the learned Rent Controller proceeded to declare that the order of the ex parte proceedings passed against the respondent was set aside. As the evidence of appellant was not present on that date therefore, the case was adjourned to 24‑10‑1972. After that several dates were given in the case and finally on 14‑3‑1973 the application for setting aside the ex parte decree was dismissed.

4. It was against the order dated 14‑3‑1973 whereby the learned Rent Controller bad refused to set aside the ex parte decree as well as against two earlier orders i.e. order dated 22‑12‑1971 whereby ex parte proceedings were ordered against the appellant and the order dated 16‑2‑1972 whereby ex parte decree was granted to the respondent that an appeal was filed to the District Judge and controlling authority under the Ordinance. The learned District Judge dismissed the appeal mainly on two grounds. The first ground being that the order whereby the setting aside of the ex parte decree was refused was not an order within the meaning of section 4, 10, 12 or 13 of the Ordinance and therefore an appeal was not competent against that order. The second ground was that the provisions of section 5 of the Limitation Act, 1908 were not applicable to the proceedings under Order IX, C. P. C. therefore the learned Rent Controller was justified in refusing to condone the delay caused in making the application for setting aside the ex parte decree.

5. The learned counsel firstly argued that the order of the Civil Judge and Rent Controller whereby he refused to set aside ex parte decree was an order within the meaning of section 13 of the Ordinance and the finding of the learned District Judge on this point was erroneous. This contention is perfectly justified in law and the opposite counsel has also conceded that the order of the learned District Judge was illegal to the extent of his finding on this point. I would therefore hold that the finding in question was erroneous and the order refusing to set aside an ex parte decree is an order within the meaning of section 13 of the Ordinance. This point would need no further discussion.

The learned counsel for the appellant next argued that the appeal against the order dated 14‑3‑1973 whereby the learned Civil Judge and Rent Controller had refused to set aside the ex parte decree was not time‑barred as the earlier ex paste order dated 22‑12‑1971 and ex parte decree dated 16‑2‑1972 had merged into the order dated 14‑3‑1973 whereby setting aside of ex parte decree was refused as such the appeal could not have been treated as time‑barred as it was perfectly within time as far as the order dated 14‑3‑1973 was concerned. He also contended that the learned Rent Controller was competent to review or recall any order passed by him within the meaning of section 13 of the Ordinance including an order granting ex paste decree. He further contended that as no period of limitation was prescribed for making an application for recalling or reviewing an order passed within the meaning of section 13 of Ordinance therefore the learned District Judge as well as Rent Controller, Sibi wrongly held that application for setting aside ex paste decree should have been made within 30 days from the date of the passing of the ex parte decree. He has tried to derive support for his contention from the case reported as N. Q. Industries v. Mrs. Bapai Katkhusro (P L D 1968 Kar. 589) wherein his Lordship Mr. Justice Noorul Arfin has held that :‑--

"In this view of the matter, though Order IX, rule 13, C. P. C. may not be available for setting aside the ex paste orders of the Controller, the power to make an order under the Ordinance includes the power to recall such order, or vary or alter it, or add thereto. Consequently, the appellant's application, though not maintainable under Order IX, rule 13, C. P. C. could be made under the Ordinance itself and the Controller was competent to review and recall his earlier ex parte order of eviction."

The learned counsel for the appellant has also argued that no case for ejectment was made out by the ex parte evidence led by the respondent and on this score as well the order of the learned Rent Controller directing ejectment of the appellant was not legally sustainable. Stretching this argument further, he submitted that one of the ingredients for establishing a case of bona fide personal use was that the applicant applying for ejectment of a tenant on this ground was required by law to prove that he had not vacated any premises suitable for his needs and situated in the same locality since the commencement of the Ordinance and that he was not already occupying in the same urban area a premises suitable for his requirements in which such building was situated. According to him this necessary ingredient had not been proved by the respondent, therefore, appellant's ejectment could not be ordered at least on this ground. About the other ground of non‑payment of rent he has argued that the rent had been deposited in Court and therefore the question of default did not arise.

6. On the other hand the learned counsel for the respondent has contended that section 5 of the Limitation Act having not been made applicable either to the provisions of the Ordinance or to the proceeding under Order IX, C. P. C., the application made under section 5 of the Limitation Act for the condonation of delay could not be favourably considered. He has also contended that the application for setting aside ex parte decree filed on 10‑5‑1972 was barred by three months as far as the ex paste decree passed on 16‑2‑72 was concerned and barred by about five months as far as the ex paste order dated 22‑12:1972 was concerned and as section 5 of the Limitation Act did not apply to the case as discussed above, the learned Rent Controller, was justified in dismissing the application on the short ground of limitation which was raised before him by the respondent vide his rejoinder dated 13‑6‑72. It was specifically stated in the rejoinder that the application being time‑barred, the same was not maintainable under Order IX, rule 13, C. P. C. which contention was rightly accepted by the learned Rent Controller.

As far as the third ground raised by the appellant is concerned, he has argued that there was sufficient evidence on record to show that the respondent had been able to substantiate both the grounds on which he had sought ejectment of the appellant and there being no evidence in rebuttal, the respondent's evidence was rightly accepted by the learned Rent Controller.

6. I will deal with the contentions raised by the learned counsel for the appellant one by one. As far as his first contention is concerned I am unable to agree with him that the ex parse order dated 22‑12‑1971 and the ex paste decree dated 16‑2‑1972 merged into the order dated 14‑3‑1973 whereby the learned Rent Controller had refused to set aside the ex parte decree. The question of merger of these two orders into the order dated 14‑3‑1973 does not arise at all as the ex paste decree was independently passed under section 13 of the Ordinance while the proceedings initiated on the basis of the application dated 10‑5‑1972 seeking setting aside the ex paste decree were separate pro ceedings and the orders passed therein were not in continuation of the earlier order i.e. ex paste order dated 22‑12‑1971 and ex paste decree dated 16‑2‑1972. This contention has no force and is therefore repelled.

The second contention of the learned counsel that the learned Rent Controller was competent to review, alter or set aside the ex parte order and the subsequent ex parte decree as the same were passed within the meaning of section 13 of the Ordinance which enabled him to review his orders has sufficient force. He has argued next that as no period of limitation was prescribed for reviewing or setting aside the ex parte decree therefore, even if the application was made beyond the period of 30 days, the same could be accepted by him does not seem to have force. As mentioned earlier, he has tried to derive support for this argument from the reported case already referred by me. I am afraid his contention cannot be accepted as in that case the question of limitation was not involved and therefore this point was not examined. The pure and simple question which eras involved in that case was whether for setting aside ex paste proceedings in the rent cases the provisions of Order IX, C. P. C. were available or that the Rent Controller was competent under section 13 of the Ordinance to review his own order and thus recall the ex parte order. His Lordship has held that even if the provisions of Order IX, C. P. C. were not specifically available for setting aide the ex parte order, the Rent Controller could competently make an order recalling ex paste order under the powers enjoyed by him by virtue of section 13 of the Ordinance. I have already reproduced the relevant portion of his Lordship's observations in the foregoing paragraph. It would be worth mentioning here that when the Rent Controller will proceed to recall, or set aside an ex parte decree be would be clearly exercising powers which would have been mailable to him under Order IX, rule 13, C. P. C., if all the provisions of C. P. C. had been made expressly applicable to the proceeding a under the Ordinance. He would in any case be acting on the analogy of Order IX, rule 13, C. P. C. and therefore be would be bound to follow the provisions of Article 164 of the Limitation Act also which prescribed 30 days' period for making an application for setting aside ex parte decree. As the provisions of Order IX, rule 13, go side by side with Article 164 of the Limita tion Act therefore one cannot be allowed to adopt one provision of law more favourable to him and to leave the other which is restrictive in nature. Even otherwise if there is no period of limitation for getting an ex parte decree set aside a confusion is bound to be created and the same would not clearly serve the purpose of law. I may further mention that the question regarding setting aside the ex parti decree had also come up for consideration in Din Mohammad v. Abdul Aziz (P L D 1967 Lah. 653), wherein it was held as under :‑----

". . . In that case their Lordships had come to the conclusion that proceedings under Article 98 were not in pari materia with suit and that therefore the provisions of Order XXII, rule 9 of the Code of Civil Procedure did not apply to the petition. There is no doubt about the fact of application for ejectment of tenant under section 13 of Ordi nance VI of 1959 is not a suit and there is equally no doubt that these proceedings are in pari materia with suits. Order IX, rule 13, C. P. C. is therefore applicable to these proceedings as being an enabling provision and the time prescribed by Article 164 of the Limitation Act would be similarly attracted."

It seems that this case which is earlier in point of time to the ruling cited by the learned counsel for the appellant had not been placed before his Lord ship. In view of the ruling cited by me above it stands well established that the proceedings under section 13 of the Ordinance are in pari materia with a suit and provisions of Order IX, rule 13, C. P. C. which is an enabling provision, as well as the provisions of Article 164, C. P. C. would apply to the proceedings for setting aside ex parte decree taken under the Ordinance. Since section 5 of Limitation Act has not been made specifically applicable to the proceedings under Order IX, rule 13, C. P. C., therefore, application for seeking setting aside the ex parte decree would lie within 30 days from the F date of knowledge about the ex parte decree within the meaning of Article 164 of the Limitation Act. The argument of the learned counsel that the learned Rent Controller was competent to condone the delay caused in making the application for setting aside ex parte decree had no force in view of the provisions of section 5 of the Limitation Act. The provisions of this section make it crystal clear that it would not apply automatically to any statute unless it is made specifically applicable. I may reproduce below the relevant portion of section 5 of the Limitation Act for convenience of reference:

"5. Extension of period in certain cases.‑---Any appeal or application for (a revision or a review of judgment or for leave to appeal or any other application to which this section may be made applicable (by or under any enactment) for the time being in force may be admitted after the period of limitation prescribed therefore, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period."

In view of the above discussion it is manifest that the application made by the appellant for setting aside ex parte decree dated 10‑3‑1972 was barred by time by about five months as far as the ex parte order dated 22‑12‑1971 is concerned and by about three months as far as the decree for ejectment dated 16‑2‑197 2 is concerned. The learned Rent Controller therefore acted legally in rejecting the same and refusing to press into service the provisions of section 5 of Limitation Act. Similarly, the learned District Judge justified in holding that the application seeking setting aside the ex parte decree was time‑barred when preferred before the Rent Controller.

8. The learned counsel for the appellant's last argument was that there was no sufficient evidence on record to justify the passing of the decree on the grounds of bona fide personal use and wilful default in payment of the rent. As far as the ground of bona fide personal use is concerned, the evidence of A. W. 3 and A. W. 4 is sufficient to establish the plea of bona fide personal requirement. The other ground that the rent had been deposited by the appellant and prior to the depositing of the rent he had sent the same to the respondent by money‑order, I find that ther6 is no evidence on record to this effect. Naturally the proceedings against the appellant being ex parte, he had no opportunity to substantiate the same through evidence. The argument of the learned counsel that the learned Rent Controller should have taken judicial notice of the fact that all the outstanding rent had been deposited by the appellant in the Court at the rate of Rs. 10 also does not carry any weight. Even if it is undisputedly accepted for the sake of argument that the rate of tent was Rs. 10 per month and that the same had been deposited in Court of which judicial notice should have been taken by the Rent Controller, this fact cannot be set aside from consideration that this deposit was made as late as 1‑1‑1971 i.e. during the pendency of the ejectment application and only two days before filing of the written statement. This ground is likewise devoid of force and thus worthy of no consideration.

9. In view of the foregoing reasons I find no substance in this appeal which is hereby dismissed but with no orders as to costs. The appellant should put the respondent in vacant possession of the premises in question within two months from the date of the passing of this order.

S. A. H. Appeal dismissed.