USMAN Versus SHAFIUR REHMAN

1. The respondent filed application for ejectments against the appellant on the ground that he has defaulted in payment of rent from July 1980 to January 1987. Several attempts were made to serve the appellant but he remained unserved ultimately a notice was published in a newspaper for appearance on 24‑12‑1986. On this date the Controller postponed the hearing to 7‑1‑1987 for consideration of service. On 7‑1‑1987 according to the appellant his advocate appeared but as the case was not traceable nor it was in the cause list he was asked to appear the next day. When he appeared on the next day he found that ex parte order had been passed on 7‑1‑1987 and the matter was set on 14‑1‑1987 for ex parte proof. The appellant filed application for setting aside ex parte order on 10‑1‑1987 stating the facts about appearance on 7‑1‑1987 and also that the case was not traceable. The application was supported by the affidavit of the Advocate for the appellant and the appellant himself. No counter affidavit was filed by the respondent. The learned Controller by the impugned order dated 15‑7‑1987 dismissed the application and fixed the matter for ex parte proof. The respondent filed affidavit of ex parte proof on 14‑1‑1987. The matter kept on adjourning from time to time when the appellant also attended the Court. Finally on 22‑9‑1987 the ejectment order was passed.

2. Mr. Abdul Aziz Shaikh the learned counsel for the appellant has contended that order passed by the Controller is not legal and proper as the appellant should have been allowed 15 days time for filing written statement as provided by section 19(2) of Sind Rented Premises Ordinance. According to the learned counsel the appellant was served with a notice issued by registered post for appearance on 7‑1‑1987. In the record of the learned Controller the copy of this notice does not appear. However, the learned counsel for the appellant has produced the original notices in which 24‑12‑1986 has been changed to 7‑1‑1987 and it is duly signed by the Serishtedar and bears the stamp of the Court. The notice shown by the learned counsel for the appellant has been examined by Mr. Mirza Advocate as well. In the record there is a copy of notice for 24‑12‑1986 and it seems that the original after changing the date was sent by registered post. The appellant therefore appeared on 7‑1‑1987. From the record it seems that no appearance was made by the appellant on 24‑12‑1986 although he was served by publication as stated in the order. Section 19(1) provides that where an application for ejectment other than under section 14 is filed the Controller shall issue a notice to the respondent to file written reply within a period not exceeding 15 days of the receipt of the notice and if on the date fixed in the notice for filing written reply the opponent fails to submit without any reasonable excuse the matter may proceed ex parte. The learned counsel for the appellant has pointed out that the notice published‑in the newspaper for 24‑12‑1987 and the notice served by registered post were only for appearance and in both these notices no time for filing written statement was fixed. However, after the notice was served by publi cation, on 24‑12‑1987 the Controller did not fix a date for filing written statement, instead he adjourned the matter to 7‑1‑1987 for consideration of service. On 7‑1‑1987 he declared the appellant ex parte and fixed the matter for ex parte proof. The Controller is required to fix a time for filing written statement in the notice and if this has not been done then upon service of notice if the parties appear such date should be fixed. In view of the language of section 19(1) where no date for filing written statement is fixed in the notice then on the first date of hearing the Controller should fix such date whether the opponent appears or not. If on this date written statement is not filed or appearance is not made the Controller can proceed ex parte. In the present case no date for filing written statement was fixed and the matter was not set for ex parte proof. Therefore, the order suffers from illegality and the appellant was shut out from making his defence. This legal position stands even if the averments and allegations made by the appellant in the affidavit are not treated to be correct.

3. From the entire record it seems that the Controller had not considered nor tried to even ascertain the correctness of the facts in the affidavit of the appellant and his Advocate which had not been controverted by the respondent. It was the duty of the Controller to have ascertained from the cause list of 7‑1‑1987 whether on that date the case had been fixed or not. The allegations made by the appellant were serious in nature reflecting upon the integrity and administration of the Court. Such allegations unless baseless and false should be examined by the Presiding Officer so that proper justice is done and ones faith in the administration of justice is not shaken.

4. Another aspect of the case is that even if the appellant was declared ex parte he could not be debarred from taking part in the proceeding. He had been debarred from filing written statement. After the respondent had filed ex parte proof as the appellant and his Advocate were present they should have been allowed the opportunity to cross‑examine the witnesses, which opportunity was not given to them. Without giving such opportunity to the appellant the Controller should not have reserved the matter for orders. If the appellant and D his Advocate would have remained absent when the affidavit of proof was filed the Controller would have been justified in reserving or pronouncing the order. The impugned order is therefore set aside. The appellant is allowed to file written statement within three weeks.

5. The matter will be sent back to II Contoller (South) Karachi and the parties are directed to appear before him on 11‑5‑1988 for which date no notice shall be issued to them.

6. A.A./‑U‑30/K Case remanded.