ABDUL MAJ1D vs Syed AZHAR ALI SHAH AND OTHERS

ORDER

1. ' NASIM HASAN SHAH, J.-This petition is directed against the judgment and order, dated 9-12-1984 passed by a Division Bench of the High Court in Writ Petition No, 225 of 1984.

2. ' The relevant facts are that one Wajahat Ali Shah Kazmi, predecessor in-interest of respondents Nos. 1 to 3, had filed an application in the Court of the Rent Controller, Peshawar, for ejectment of Abdul Majid, petitioner herein, from House No, 2c45, Mohallah Merviha, Peshawar City and an ex parte order of ejectment was passed against him on 18-9-1981. On the same day, shortly after the aforesaid order was passed, Mr. Burhanuddin Khattak, Advocate moved an application before the Rent Controller for setting aside of the ex parte order. Along with this application he filed a memorandum of appearance but not a proper power-of-attorney executed by Abdul Majid in his favour.

3. ' The last-mentioned application was contested by the landlord and, ultimately, dismissed by the Rent Controller vide his order, dated 12-11-1983 on the short ground that the counsel for the tenant had failed to file a duly accepted power-of-attorney on his behalf and that, therefore, the application was not competent and maintainable.

4. ' Dissatisfied, the tenant filed an appeal before the Additional District Judge, Peshawar, which was accepted by him on 15-3-1984. He observed that the counsel for the tenant Mr. Burhanuddin Khattak had prosecuted the case before the lower Court for about two years and during the said period nobody objected to his authority to appear and act on behalf of the petitioner. Furthermore, Mr. Burhanuddin Khattak had filed an affidavit before the Additional District Judge that he was duly appointed as a counsel for the tenant, the contents of which affidavit were duly supported by the tenant. He, therefore, held that the application filed on behalf of the tenant by Mr. Burhanuddin Khattak for setting aside ex parte order dated 17-9-1981 was properly presented and was clearly maintainable and it was, therefore, wrongly and illegally rejected by the Rent Controller. The appeal was, accordingly, accepted and the order of the Rent Controller passed by him on 17-9-1981 was set aside and the application remanded back to him for decision on the merits in accordance with law.

5. ' The landlord feeling aggrieved by the order of the Additional District Judge filed a writ petition before the High Court which was surprisingly accepted by a Division Bench of the said Court vide their judgment, dated 12-9-1984 on the ground that the failure to tile a duly executed power of attorney was against the mandatory provision of Order III, rule 4 of the Civil Procedure Code which lays down that :- "No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognised agent or by some other person duly authorised by or under a power-of-attorney to make such appointment."

6. ' Their conclusion was expressed thus :- ``Consequently, we have arrived at the conclusion that the impugned judgment made by the learned Additional District Judge was completely against law because the respondent had not complied with the mandatory provisions of Order III of the Civil Procedure Code, and an illegality of grave nature was committed by him in accepting the appeal."

7. ' This petition for leave to appeal is directed against the aforesaid judgment. The Court has repeatedly pointed out that neither the Civil Procedure Code nor the Evidence Act are in terms applicable to the proceedings A under the Rent Restriction Ordinance. The earliest decision on this point)) was by the Full Court in the case of Khadini Alohyuddin and another v. Ch. Rehmat Ali Nagra and another (1), wherein it was observed :- "Though under section 16, West Pakistan Urban Rent Restriction Ordinance, 1959, the 'Controller' has been given powers 'of summoning and enforcing the attendance of witnesses and compelling the production of evidence', he is not bound in every case to follow the procedure as laid down in the Code of Civil Procedure. He has been given powers under sections 4, 10(3) and 12 to make orders after

(1) PLD 1965 SC 459 holding such inquiry as he thinks fit. In such eases the question of nature of enquiry is left to him.

8. That means that in such enquiries the parties have no right to insist on production of such evidence as they desire to adduce in support of their case. In short these inquiries may be such as are conducted by an executive officer." (Underlining is ours).

9. In subsequent eases it was further explained by this Court that proceedings before the Rent Controller are not to be frustrated by mere formalism because in deciding such cases the only requirement for him is to ensure that no party should be prejudiced by the procedure adopted by him and that each party is afforded a fair opportunity to present his point of view. In this case, Sardar Akhtar Ali, learned counsel for the respondents, who appeared in support of the caveat filed on their behalf, conceded that though Mr. Burhanuddin Khattak could have "appeared" before the Rent Controller on the basis of the memorandum of appearance filed by him but he could not have "acted" on his behalf and, therefore, could not have filed an application for setting aside the ex parte proceedings, because this was not permitted by rule (4) of Order Ill of the Civil Procedure Code.

10. We feel that there could hardly be a clearer case of a technicality being invoked to thwart the decision of a case on tire merits than the one invoked herein. The tenant had given authority to Mr. Burhanuddin Khattak to appear on his behalf and thereafter he also filed an affidavit to certify that he was fully authorised to prosecute the case on his behalf. Nevertheless C his right to have the ex parte order of ejectment has not been attended to on the merits simply because he had not tiled a proper power-of-attorney and the whole proceedings, lasting for some two years, were held to be bad on this short ground. This is exactly the situation which this law intended to avoid.

11. ' We may, however, point out that Sardar Akhtar Ali also relied upon Section 22 of the Legal Practitioners and Bar Councils Act, 1973, especially subsection (3) thereof which lays down that :- "No Advocate shall appear or act for any person in any Court or Tribunal unless he has been appointed for the purpose by such person by a document in writing signed by such person But apart from the fact that the proceedings before the Rent Controller are such as are conducted by an executive officer, as pointed out in Khadirn Mohyuddin's case, this was not at all a fit case in which the High Court should have exercised i:s writ jurisdiction, to set aside the appellate order of the Additional District Judge, in which a fair and just view had been taken of the situation.

12. ' We would, therefore, convert this petition into an appeal and allow it. The judgment and order, dated 12-9-1984 passed by the High Court is hereby set aside and that of the Additional District Judge. Dated 15-3-1983 restored. The result will be that the matter will go back to the Rent Controller for decision of the application filed by the appellant before him for setting aside the ex parte order, dated 17-9-1981 in accordance with law.

13. ' The appeal is allowed, leaving the parties to bear their own costs.