Mst. RAFIQUNNISA Versus WAHABUDDIN

This appeal at .the instance of tenant is directed against the order of the learned VII Senior Civil Judge/ASJ & Rent Controller, Karachi, dated 19-9-1984 passed in Rent Case No. 2195 of 1982 whereby the application for evictions moved by the respondent on the grounds of default in payment of rent and personal bona fide requirement of the premises has been allowed.

2. The respondent presented an application for eviction of the appellant under section 15 of the Sind Rented Premises Ordinance, 1979 (hereinafter called "the Ordinance") on 5-5-1982 on the grounds of default in payment of rent from December 1977 onwards and also for personal bona fide need. The premises in question is quarter No. 9, Block-148, 5-D, New Karachi, which was allegedly let out to the appellant at the rate of Rs. 300 per month. The notice of hearing was served upon the appellant through substituted service, namely, by publication in "Leader" dated 12-9-1983. The case was fixed for hearing as per notice published in press on 27-9-1983. The learned Rent Controller passed an order for ex parte proceedings against the appellant on 23-10-1983. The affidavit as ex parte proof was filed by the respondent on 8-9-1983. In the meanwhile the appellant came to know of the pendency of the rent case against her and accordingly on 12-9-1983 she presented an application under Order 9 Rule 7, C.P.C. read with Section 19(4) of the Ordinance. The learned Rent Controller vide his order dated 6th December, 1983 dismissed the said application with an observation that the grounds raised therein, to the effect that the respondent had no legal status to file the ejectment application against her in 82 when the rent application was presented as the Letter of Administration was granted in his favour later on can be urged at the time of arguments. The case was ultimately decided by the Rent Controller vide his impugned order dated 13-9-1984 whereby he has on the basis of the affidavit-in-evidence filed in ex parte proof allowed the application on both the grounds.

3. None appears for the respondent although it is 12 noon now. Mr. Muhammad Ali Shaikh, learned counsel for the appellant, states that since the respondent has obtained the possession of the demised premises in execution of the order of eviction passed on the ground of personal need of the respondent in another Rent Case bearing No. 1975 of 1985 from the Court of 2nd Senior Civil Judge and Rent Controller, Karachi, he does not appear to be interested in pursuing this appeal. He also drew my attention to the fact that the F.RA. 861/87 has been filed by the appellant above named against the aforesaid order of eviction and the said appeal is still pending disposal.

4. I have heard Mr. Muhammad Ali Shaikh, learned Counsel for the appellant, and have perused the record of the trial Court. What I find from the record is that although the notice for appearance of the appellant was published in Leader dated 12-9-1983 for appearance on 27-9-1983, yet on the date o appearance the Presiding Officer was busy in election work and hence the case could not proceed. There is no entry on the order sheet of that date with regard to the appearance or absence of the parties. It was on 23-10-1983 that the Rent Controller passed order for ex parte proceeding against the appellant. Later on, the case proceeded as stated above and ultimately the impugned order has been passed. What I find is that the Rent Controller acted illegally in passing an order of ex parte proof on 23-10-1983 when even the absence of the applicant was not recorded on 27-9-1983 for which date the notice was published in Press. It was, therefore, expected of the Rent Controller to have issued fresh notice to the appellant instead of ordering ex parte proceedings against her. Moreover, when A the appellant had appeared before the Rent Controller on 12-9-1983 and had drawn his attention to the effect that the respondent did not have a legal title to present the application for ejectment on 9-5-1982, the Rent Controller was expected to have taken note of that fact and ascertained it whether the respondent was legally entitled to present the rent application out of which this appeal has arisen. He did not do so as is evident from the impugned order. Notwithstanding the fact that the ex parte proceedings have been adopted and an order on the basis of affidavit filed in ex parte proof has been passed yet the Rent Controller was not absolved of his responsibility to see the maintainability of the application when it was specifically brought to his notice by the appellant above named.

5. For the foregoing reasons I hold that the impugned order is bad in law and cannot be sustained. 1, therefore, allow the appeal, set aside the order and remit the case to the Rent Controller for fresh proceedings in accordance with B law after notice to the appellant. The parties shall, however, bear their own costs.

M.Y.H./R-50/K ??????????

Appeal allowed.