MASJID INTIZAMIA COMMITTEE Versus ANJUMAN-E- FALAH-O-BAHBOOD

ORDER

MAMOON KAZI, J. ---The petitioners ejectment application against the respondents was accepted by the Rent Controller ex parte on 27-2-1998. Application for setting aside the ex parte order was dismissed for non-prosecution on 20-7-1998 and application filed for restoration of the same was also dismissed vide order dated 16-10-1998. On appeal filed by the respondent before the Additional District Judge the order of ejectment was set aside as the case had been transferred from the Court of one Rent Controller to another who had then passed the order of ejectment, but no notice in this regard had been served on the respondent. Therefore, the case was remanded to the Rent Controller for hearing afresh.

2. Feeling aggrieved by such order, the petitioners filed appeal before the High Court, but the order of the Additional District Judge has been upheld, and hence this petition for leave to appeal.

3. Malik Muhammad Nawaz, learned counsel for the petitioners has assailed the order of the learned Judge of the High Court on the ground that in view of section 24-A of the Civil Procedure Code, no fresh notice was required to be sent to the respondents by the transferee Court. Further, according to the learned counsel, the case had already proceeded ex parte after due service on the respondents. Reliance has been placed by the learned counsel upon S. Irshad Hussain v. Azizullah Khan (1987 SCMR 150), wherein, while interpreting the provisions of section 24-A, C.P.C., it was held by this Court that the purpose which is sought to be achieved by subsection (2) of section 24-A is to make it obligatory on the parties to get themselves informed of the future date of hearing and the Court where the case has been transferred and the only duty placed on the Court is to inform them when they approached it for that purpose. This Court also did not agree with the reasoning of the High Court that because an ex parte defendant has a right to appear at any stage and join the proceedings prospectively, he must be informed of the transfer of the case.

4. No doubt, the judgment of the High Court in this case does not appear to be in consonance with the rule laid down in the aforesaid case, but the observations made in Irshad Hussain's case (supra) related to a suit. In the present case although the respondents were being proceeded against ex parte, but the proceedings arose from an ejectment application and not a suit. Therefore, in our opinion, the provisions of section 24-A invoked by the learned counsel for the petitioners are not applicable in the present case. Learned counsel for the petitioners, however, argued that where the Rent Ordinance is silent the provisions of C.P.C. can be invoked. Reliance in this regard has been placed on the case of Mst. Fehmida Begum v. Muhammad Khalid (1992 SCMR 1908), where it was observed that the Rent Controller, as a Tribunal of limited jurisdiction, could invoke equitable principles of Civil Procedure Code, 1908 and in this case the provisions of section 12(2), C.P.C. were held to be applicable as the Rent Controller was required to set aside an order which had been secured by practising fraud or misrepresentation. But reference to the observations made in this judgment appears to be clearly misplaced as only equitable principles of C.P.C. can be invoked, if need arises in certain cases, but not every provision thereof. We are, therefore, inclined to agree with the observations made by the learned Judge in the High Court that proceedings held by the transferee Rent Controller against the respondent without notice suffered from infirmity as the same were opposed to the principles of natural justice. Therefore, interference with the judgment of the High Court is not called for.

5. In the result, the petition is dismissed and leave is refused.

M.B.A./M-7/S Petition dismissed.