MASHLAKHUDDIN Versus ALI HAIDER

1. On reading of the impugned order it appears to me that the learned Rent Controller was of the view that be has absolutely no powers to set aside an ex parte order. I am unable .to agree with such stringent interpretation of subsection (2) of section 19 of the Sind Rented Premises Ordinance, 1979. This provision reads as follows :‑

2. "(2) 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 parse order and after such order has been made the Controller shall have no power to rescined such order."

3. I find on a plain reading of this provision that in cases of this nature the Rent Controllers have to keep two facts in mind and give a finding on the same. This subsection states that it should be found that the notice has been served and further that the default in filing of reply is without reasonable excuse. The use of the word "found" and the word "without any reasonable excuse" clearly mean and imply ‑that the Rent Controller has to record a finding that a notice has been served and further that the default in making reply was without any reasonable excuse. Unless findings on these two facts are recorded, the controller cannot give full effect to sub section (2) of section 19 of the Sind Rented Premises Ordinance. My attention has also been drawn to the Division Bench Judgment in the case of Agha Brothers v. Tharparkar District T. B. Association (1979 C L C 831). I was a member of that Bench which delivered the judgment in that case. In addition this view would appear to be supported by the judgment of the Supreme Court in the case of Chief Settlement Commissioner, Lahore v. Raja Mohomed Fazal Khan (P L D 1975 S C 331). In any case the principles of natural justice which are deeply embedded in the substratum of legislation in spite of not being vividly expressed, would also support tithe proposition that before a person lose his right to defend a cause, it is to be shown that he has notice about the pendency of a cause in a competent Tribunal.

4. On being pointed out both Mr. Naimur Rehman and Mr. A. Mirza have sought the following consent order:

5. The impugned order passed by Mr. Ali Saindino on 24‑9‑1980 in the Rent Case No. 2711/79 (Execution No. 63/1979) is: hereby set aside and the case is remanded to the Rent Controller having jurisdiction. The Rent Controller shall proceed with this case expeditiously and dispose of the same before 30/9/1931. Compliance to be reported to this Court.

6. Appeal allowed.