RUKHSANA SHAHEEN Versus MEHMOOD ZAFAR MALIK

1. This appeal is directed against the impugned judgment dated 27‑7‑1993, delivered by 1st Senior Civil Judge/Rent Controller, Karachi (Central), whereby appellant was directed to hand over vacant possession of the demised premises to the respondent within 60 days of the date of judgment.

2. Briefly stated the facts are that the application for ejectment was filed by the respondent on 12‑11‑1992, and notice was issued to the appellant for 9‑12‑1992. However on that date written statement could not be filed by the appellant and the matter was adjourned to 23‑12‑1992, and then to 11‑1‑1993, for filing of the written statement. However even on 11‑1‑1993 the written statement could not be filed, adjournment application moved by the learned counsel for the appellant/opponent was rejected, and it was ordered by the learned Rent Controller that the matter should proceed ex parte as against the appellant/opponent. On 31‑1‑1993, an application was moved by the learned counsel for the appellant/opponent for recalling the ex parte order dated 11‑1‑1993. The aforesaid application was accompanied by an affidavit filed by the learned counsel for the applicant/opponent to the effect that, due to rush of work the file of this case was misplaced, as such the written statement could not be submitted within stipulated time. No counter‑affidavit was filed on behalf of the landlord to rebut averments made in the affidavit of the learned counsel for the appellant. However, the aforesaid application was dismissed by the learned Rent Controller. Thereafter ex parte evidence was taken and the impugned judgment was passed on 27‑7‑1993.

3. Mr. Naqshbandi, learned counsel for the appellant contended that on 31‑1‑1993, he moved an application for setting aside the order dated 11‑1‑1993, whereby ex parte proceedings as against the appellant/opponent were ordered by the learned Rent Controller. The learned counsel further submitted that the aforesaid application was accompanied by an affidavit of his junior Advocate to the effect that due to rush of work the file was misplaced, as such the written statement could not be filed within time. It is pointed out by Mr. Naqshbandi that no counter‑affidavit was filed by the other side, as such the averments made by the junior Advocate went unchallenged. Thus reasonable cause was shown by the counsel for the appellant/opponent for not submitting written statement within time and, in the absence of counter‑affidavit, the learned Rent Controller was not justified in refusing to recall ex parte order passed on 11‑1‑1993. He placed reliance on Muhammad Rafiq Gazdar v. Additional Commissioner, Karachi PLD 1972 Karachi 119, and Jamal Shah v. Azad Government of Jummu and Kashmir 1991 MLD 1243 to support his contention that in the absence of denial, the facts mentioned in the pleadings are deemed to have been admitted.

4. Mr. Naqshbandi further contended that the learned Rent Controller had the power to recall the ex parte order dated 11‑1‑1993, and the provisions of section 19(2) of the Sindh Rented Premises Ordinance 1979, do not take away the jurisdiction of the Rent Controller from rescinding his previous order of proceeding ex parte, provided that reasonable cause is shown for not submitting the written statement within the stipulated time. Reliance is placed on Mashlakhuddin v. Syed Ali Haider 1982 CLC 644, Wasi Haidbr v. Qamar Muhammad Khan 1984 CLC 1755 and Mir Zaman Khan v. Muhammad Yaqoob and others 1986 CLC 2471.

5. On the other hand Mr. K.A. Wahab, learned counsel for the respondent submitted that in view of the embargo imposed by section 19(2) of the Sindh Rented Premises Ordinance, 1979, the Rent Controller had no power to re‑call order dated 11‑1‑1993, whereby ex parte proceedings were ordered against the appellant/opponent. He contended that notice was properly served on the appellant/opponent, as such the authorities cited by Mr. Naqshbandi were not applicable. He placed reliance on Muhammad Shafi v. M/s. Bambino Limited and another 1983 CLC 985, Muhammad Jahangir v. Choudhary Muhammad Niazuddin and another 1984 CLC 2114 and M/s. Siddiq Tailors v. State Life Insurance Corporation 1988 CLC 2332 .

6. Section 19(2) of the Sindh Rented Premises Ordinance, 1979, runs as under:‑‑ '

7. "Where on the day fixed in the notice for the respondent to file written reply, it is found that the notice has been served but the respondent has failed to file his reply without any reasonable excuse, the Controller may proceed to make an ex parte order and after such order has been made the Controller shall have no power to rescind such order."

8. After perusing the case‑law cited by both the learned counsel, I find myself in agreement with the view expressed by my brother Munawar Ali Khan, J, reported as (Mir Zaman Khan v. Muhammad Yaqoob and others 1986 CLC 2471). The learned Judge observed as under:‑‑

9. "No doubt, the learned Rent Controller has erred in holding that his jurisdiction is barred once ex parte order is passed. It may be observed that the language of subsection (2) of section 19 of the Sindh Rented Premises Ordinance, 1979 has been examined in several cases and it is held that itf view of the words `it is found' and `without any reasonable excuse' used in the said subsection the Rent Controller is not prohibited from reviewing his earlier ex parte order if he comes to the conclusion that notice has not been served on the respondent or that he had reasonable excuse for his failure to file his reply. Accordingly, the argument of the learned counsel on the question of jurisdiction of the Rent Controller is unexceptionable."

10. Thus an ex parte order passed by the Rent Controller can be recalled, if it is found that notice was not properly served on the respondent, or he could not file written statement because of some plausible ground. In the present case unrebutted affidavit was filed to the effect that the file of the case was misplaced by the‑learned Advocate, as such the written statement could not be submitted within time. The application moved on that ground on 31‑3‑1983, was accompanied by the proposed written statement which is still available on A the record of the learned trial Court. Under the circumstances, on the basis of the unrebutted affidavit the learned Rent Controller ought to have allowed the appellant/opponent to file his written statement. Even otherwise equity and natural justice demands that no one should be condemned unheard.

11. This appeal, therefore, stands allowed. The impugned judgment is set aside, and the case is remanded to the Court of Ist Senior Civil Judge/Rent Controller, Karachi (Central) for proceeding on merits on the basis of the pleadings of the parties.

12. H.B.T./R‑269/K Appeal allowed.