ALLIED BANK OF PAKISTAN Ltd. Versus Mst. HASAN JEHAN BEGUM
1. This‑ First Rent Appeal is directed against the order dated 8‑5‑1985, of VIth Senior Civil Judge, Karachi, whereby the Rent Application No.368 of 1985 of respondent was allowed as appellants were declared ex parte.
2. Mst. Hassan Jahan Begum is landlady of the premises No.156, PIB Colony, Karachi, while appellants, M/s. Allied Bank of Pakistan Ltd. are tenants. The rent case was riled on the ground of default.
3. Mr.A.Saeed Khan Gliori appearing for appellants submitted that ex parte order passed against the appellants is contrary to the provisions of law as due to some un-avoid‑able circumstances, can the first date of hearing after service, there was no appearance from the appellants' side and subsequently an application was moved which was dismissed and ejectment order has been passed. It is argued that the explanation for not appearing is a reasonable one. He has referred to the case reported in 1982 C L C 6.14.
4. Mr.Zafar Hadi Shah submitted that after the service of the notice it is incumbent upon the parties to appear and File written statement which has not been done, therefore, the ex parte order s proper one. The other point raised by Mr.Zafar Hadi is that appeal is barred by limitation. It is argued that appellants cannot get the benefit of vacation after he had chosen to file the appeal during the vacation. He has referred to the case reported in P L D 1977 Kar. 567; and 1986 C L C 2552.
5. After the service, the first date of hearing was fixed on 13th February, 1985, before the Rent Controller and on that day nobody appeared on behalf of the appellants and Rent Controller ordered ex parte proceedings and adjourned the case to 23‑2‑1985. w‑lien bout tile parties were present and copy of application filed by the appellants under Order IX, Rule 9, C.P.C., was supplied to the respondent and matter was fixed on 9‑3‑19`5, and finally Rent Controller by an order dated 13‑5‑1985, dismissed the application and ex parte order was not set aside and by the impugned order the eviction order has been passed. From the appellants' side, one Sarkar Rara Khan, Principal Officer of Allied Bank of Pakistan Ltd., P.I.B. Branch, Karachi, filed his affidavit in which he stated that he could not put appearance on 13‑2‑1985, in the above rent case as matter was referred to the Law Division and the Law Officer had met with a car accident and was not attending the office. Due to this reason permission to engage an Advocate was conveyed on 18‑2‑1985. This affidavit was tiled on 21‑2‑1985, alongwith an application. The counter‑affidavit was filed by the attorney of the respondent in which it was stated that Law Officer had not met an accident and no such affidavit was filed. In rejoinder Syed Nasim Rizvi, Principal Law Officer filed his own affidavit and stated that in the months of January and February, due to car accident, he was not discharging his duties.
6. According to Section 19(2) of the Sind Rented Ordinance, 1979, after the l service of notice, the other party has to file a written reply and in case the same is not filed without any reasonable excuse, the Rent Controller may proceed to make an ex parte order and after such order has been passed, the Rent Controller has no power to rescind the same. In this case, I feel that appellants had made out a case for reasonable excuse. Even otherwise, the Rent Controller waited for three months and dismissed the application on 13‑5‑1985, as parties filed affidavits, counter‑affidavits and rejoinders. In the interest of justice, the parties should be given fair chance to contest the case on merits. In case of Mashlaka Din v. Sycd Ali Haide, reported in 1982 C L C 644, it has been held that Rent Controller can set aside the ex part,: order. Keeping in view the principles of natural justice, I am of the view that ex parte order needs interference. Now I come to the point of limitation raised by Mr..Zafar Hadi[ Shah first time before this Court. It is relevant to mention that there was no office objection and before admitting the First Rent Appeal, pre‑admission notice was given to the other party and Mr.Zafar Hadi Shah, the learned counsel in pursuance of the pre‑admission notice appeared on 20‑8‑1985, and no such point of limitation was taken and appeal was admitted. This point has been raised first time during the course of arguments and the main contention is that if appeal is filed during vacation, the party cannot get the benefit and limitation starts from the date of filing of the appeal. On the other hand, it is argued by Mr.Saeed Khan that appellants were allowed two months' time for ejectment therefore, he filed an appeal during vacation as without stay, he could have been vacated. The order was passed by the Rent Controller on 28‑5‑1985. Appellants applied for the copies on 16‑6‑1985, and copies were supplied to them on 29‑6‑1985, and appeal was filed on 16‑7‑1985, thereby according to Mr.Zafar Hadi Shah, appeal is barred by four days. The Rent Controller in the impugned order allowed only two months' time to the appellants to hand over the vacant possession. This time was to expire on 27‑7‑1985, i.e. during the vacation, therefore, the appellants had not other alternative but to file appeal during vacation. Such circumstances arose in F.RA. 417 of 1981, and office objection was over‑ruled by this Court and in the! order the case of Fazal Karim and others v. Ghulam Jilani, reported in 1975 B S C M R 452, was considered and it has been held as under:‑
7. "Mr.Khalilur Rehman, learned counsel for the appellant has referred to the case of Fazal Karim and others v. Ghulam Jilani reported in 1975 S C M R 452 in which in similar circumstances a petition which was filed during the vacation was resisted on the reopening day of the Court but not earlier, therefore, it was time barred. The Supreme Court repelled the contention and held that the word office of the Court is not synonymous with the word 'Court' and observed that while the office of the Court may remain open during vacation for reception and institution for the purpose of section 4 of the Limitation Act the Court held that though the petition was filed during vacation and the period of limitation expired earlier to its filing in the Court, it was within time in view of the fact that the party had the right to rile the petition on the re‑opening day of the Court:'
8. I am also of the same view that this appeal is not barred by limitation. For the reasons stated above, the ex parte order of the Rent Controller is set aside and the case is remanded back with the direction that both the parties be, given an opportunity to lead the evidence and Rent Controller should decide they' rent case on merits and law.
9. M.Y.H./A‑320/K Case remanded.