SH. HAKIM ALI, J.- Mushtaq A. ; Khawaja, respondent No. 3 filed an ejectment application alongwith the prayer for fixation of fair rent from July, 2003 uptill eviction of Muzammal Abdullah, the tenant, with regard to half portion of property No. 42/C, situate in Mandi Chishtian, District Bahawalnagar, before the learned Rent Controller, Chishtian in the year 2003. Muzammal Abdullah filed reply to it and contested it. During the continuance of proceedings, upon the ejectment application, on 21.2.2004, the learned Rent Controller not only closed the evidence of the applicant/respondent No. 3 but also dismissed the aforesaid ejectment application due to default in the production of witnesses by the applicant. To get this order set aside, Mushtaq A. Khawaja, respondent No. 3 filed an application before the learned Rent Controller for recalling of its order dated 21.2.2004, and for restoration of the ejectment application and hearing the same on merits. The application was contested and reply was filed by the writ petitioner. On 16.4.2004, the learned Rent Controller recalled his earlier order dated 21.2.2004 and summoned the original file from r the record room for proceeding on the ejectment application on merits. A revision petition was filed by Muzammal Abdullah against the order dated 16.4.2004, which was dismissed by the learned Additional District Judge, Chishtian on 15.5.2004, holding it to be incompetent. Hence, the present writ petition.
2. Learned counsel appearing on behalf of the writ petition has challenged the soundness of the recall order dated 16.4.2004, passed by the learned Rent Controller. According to the learned counsel, after dismissal of the ejectment application, the learned Rent Controller had become functus officio, and could not act as an Appellate Court to sit upon its on order so as to recall it. He was not conferred with any power to recall his order, which order was passed on merits by him. It has further been submitted by the learned counsel that the appeal was competent under Section 15 of the Urban Rent Restriction Ordinance, 1959 before the learned District Judge, against the final order dated 21.2.2004. So, the application could not competently be filed by respondent No. 3 and entertained by the learned Rent Controller. To support his contentions, the learned counsel has relied upon AIR 1959 Patna 121 (Doma Choudhary and others v. Ram Naresh Lai and others), 1998 CLC 298 (Syed Nasir AH Shah and another v. Mst. Bashiran Bibi and 2 others, PLD 1977 SC 599 (Messrs Conforce Ltd. v. Syed Ali Shah, etc.) 2002 PLR (D.I. Khran) 814 (Muhammad Shafiullah v.
Government of Pakistan through Secretary, Parliamentary Affairs Division, Pak. Secretariat, Islamabad and 5 others), 2002 CLR (Sukkur) 1761 (Hafeezullah and others v. Abdul Latif and others) and PLD 2002 Lah. 217 (Munir Ahmad v. Province of Punjab).
3. Opposing the arguments, learned counsel appearing on behalf of respondent No. 3, Mushtaq A.
Khawaja, has argued that learned counsel, who was representing Mushtaq A. Khawaja, namely, Mr. Bashir Ahmad Javed Chaudhry, Advocate, had gone to attend an urgent piece of work for one hour and had got adjournment for that purpose from the learned Rent Controller also. But after his return, he was apprised of by the Reader of the learned Rent Controller that his case was dismissed in default of production of evidence. According to the learned counsel, in reply to this application, Muzammal Abdullah had answered the factual aspect by stating that the learned counsel had not appeared on the aforesaid date when the case was called twice, so the order was passed.
According to the learned counsel, as the case was wrongly taken-up and dismissed in default, so the recall order passed by the learned Rent Controller was valid. As per learned counsel, the learned Rent Controller had the power to recall his earlier order under Section 14 of the Urban Rent Restriction Ordinance, 1959 as the decision had not become a final one and could be taken-up again by the aforesaid learned Rent Controller. He has laid main stress on the point that it was a case of dismissal in default, so the learned Rent Controller had not become functus officio and restoration application was rightly filed. To support his contentions, he has referred to PLD 1972 Lah.
603 (Muhammad Aslam Mirza v Mst. Khurshid Begum), PLD 1978 SC 185 (Mian Manzar Bashir and others v. M.A. Asghar and Co.), PLD 1980 Lah. 414 (Mistri Abdul Ghafoor v. Mst. Meh raj Begum), 1982 SCMR 33 (Muhammad Sa/eh v. Muhammad Shafi) and 1996 SCMR 97 (Taj Muhammad Abbasi through Legal Heirs v. M/s. Ferozesons, Rawalpindi (Pvt.) Limited, Rawalpindi through Managing Director), It has further been stated by the learned counsel that it is settled law that no one should be penalized by the act of the Court. For that proposition, he has referred to 1998 CLC 298 (Syed Nasir AH Shah and another v. Mst. Bashiran Bibi and 2 others). According to the teamed counsel, this writ petition is not competent. For that he has referred to PLD 1976 Lah. 99 (Khushi Muhammad v. Khadeja Hakeem and another).
4. I have considered the arguments of both the learned counsels and have consulted the record with their valuable assistance.
5. In the order dated 21.2.2004, the presence of both the learned counsels for the parties has been recorded and the learned Rent Controller had dismissed the ejectment application on the basis of non- production of evidence of the applicant. This order was final as regards the learned Rent Controller was concerned, It must be noted with concern that it was not a simple and pure. case of dismissal of default in appearance, for which the remedies of recalling/restoration could be availed of before the learned Rent Controller, who had dismissed the is, To consider and compare it with that of a case of civil suit, then we find that provisions of Order XVII, Rule 3, CPC would be applicable to such a case. The suit, which was dismissed under Order XVII, Rule 3-, CPC due to non- production of evidence or non-compliance of an order of the Court, for which time was granted to a party, the remedy does not lie before that Court. An appeal/revision before the next higher forum/Court was to be filed.
6. There is no cavil to the proposition that no procedure has been laid down by the Urban Rent Restriction Ordinance, 1959 for the Conduct and trial 'of ejectment application before the learned Rent Controller. But the question arises' under what provision of law, the learned Rent Controller had passed the order dated 21.2.2004. As there is no provision in the Urban Rent Restriction Ordinance, so it would be presumed that the learned Rent Controller had borrowed the provisions of Order XVIH, Rule 3, CPC and had applied it while dismissing the ejectment application. When the learned Rent Controller had adopted such course and procedure and had borrowed the powers from the provisions of Civil Procedure Code, then for setting aside/recalling/restoration purposes, the provisions and the procedure prescribed by the aforesaid Civil Procedure Code had to be applied, which provided the remedy of appeal/revision to the higher Court against a decree or an order, passed under Order XVII, Rule 3 of the CPC. Therefore, the order dated 16.4.2004 was not a valid order. I am fortified for this view by the authoritative judgment of this Court pronounced by a Full Bench in case reported in PLD 1972 Lah. 603 (Muhammad Aslam Mirza v. Mst. Khurshid Begum). The above-noted principle was settled in that judgment.
7. A case dismissed in default or a case decided ex parte, must be differentiated from a case dismissed for non-production of evidence, the cases noted in the former category can be resorted or the ex parte order set aside through an application to the same Court but in the latter case no such course is open to a party because the law treats the latter order to be an order passed on merits. Therefore, it has to be set aside from the higher Court and the Court or the authority passing the latter order becomes functus officio and order of that Court/authority becomes a final order or decree as the case may be unless permitted otherwise by any provision of law. Taken from this view, the impugned order dated 21.2.2004 could not be recalled by the learned Rent Controller.
8. In the order dated 16.4.2004, no legal ground w noted by the learned Rent Controller for recalling its on order. The vague and general reference to the principle of law could not permit the learned Rent Controller to recall its on earlier order of dismissal of the ejectment application.
9. In the order dated 21.2.2004, the presence of learned counsels for the parties was marked. The application for recalling the order was not filed on the same date when the order was passed by the learned Rent Controller. If the contents of the application were true and correct and against the apparent tenor of the order, then the application must have been moved on the same day or at the most on the next date. Why three days were allowed to elapse?
10. It may be pointed out that the contents of an application or bald assertion contained in it cannot smash the presumption of correctness, granted to a judicial order. There must be sound ground and cogent proof to hold the order of a Court to be recorded against the occurred facts as recorded by the aforesaid learned Court. Therefore, in the order dated 21.2.2004 the fact of presence of counsels has to be given preference over the bold and bald assertion contained in an application without strong proof of it. Therefore, by accepting the writ petition, the order dated 16.4.2004 passed by the learned Rent Controller for recalling its on final order dated 21.2:2004 is declared illegal and unlawful. Consequently, the subsequent proceedings commenced or initiated and conducted by the learned Rent Controller on the basis of illegal order dated 16.4.2004 are also set aside.