' QAZI EHSANULAH QURESHI, J.--Muhammad Hussain, landlord-respondent No,1 herein filed an ejectment petition against Mohibullah (respondent No,2 herein) in respect of the suit shop situated at Muhammad Hussain Market near Mursalin Plaza New Rampura Gate, Peshawar City, on the ground of default in payment of monthly rent. He also prayed for the recovery of Rs,1,20,000 as arrears of rent from April, 2000 to November, 2001 and also future rent till the delivery of possession of the shop in question.
2. Muhibullah respondent No,2 was summoned by the trial Court but he did not appear and was proceeded against ex parte. After recording the ex parte evidence of landlord-respondent No,1 the trial Court (respondent No,3) vide judgment/order dated 8-2-2002 passed an ejectment order against respondent No,2 with the direction to hand over the vacant possession of the shop in dispute within one month. The landlord/respondent No,1 filed execution petition and during the said proceedings taken over the possession of the shop in dispute vide order dated 30-3-2002.
3. On 5-4-2002 Ziaullah, petitioner herein and Muhibullah, respondent No,2 submitted an application for setting aside the ex parte order dated 8-2-2002 which was dismissed by the learned trial Court (respondent No,3) vide order dated 1-7-2002. Feeling aggrieved of the above order, the petitioner and respondent No,2 preferred an appeal before the Appellate Court which was also dismissed by the learned ADJ-V, Peshawar (respondent No,4) vide his, judgment/order dated 25-11-2002. Hence the instant Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for setting aside and declaring the impugned orders passed by the Courts below (respondents Nos.3 and 4) to be without lawful authority and of no legal effect with a further prayer for restoration of possession of the shop in dispute to the petitioner.
4. Learned counsel for the petitioner advanced that the ejectment application filed against Mohibullah father of the petitioner intentionally in order to manoeuvre ejectment order and possession on their back. In fact the petitioner occupied the shop in question from landlord/ respondent No,1 which fact is substantiated through documentary evidence placed on file, Annexure 'A' to Annexure 'F-2' (pages 11 to 45) which envisage the rent receipts, teleihone connection papers/bills etc., papers regarding electricity connection/bills, affidavits from the landlord Muhammad Hussain permitting the petitioner to obtain the supply of electricity for the shop in dispute, Corporation receipts survey of business form for N.T.N; that the record also reveals that respondent No,2 was not even served personally as he resides at Dir and he was not available on the given address. However, it appears from the record that proclamation is made in the 'Daily Jehad', Peshawar but that too has no wide-spread circulation in the Province so respondent No,2 father of the petitioner who is also illiterate could not be informed about the eviction application preferred before the Rent Controller; that the demeanour of the Rent Controller is worth-seeing; that the application for ejectment was moved on 5-1-2002 and ex parte decree was passed on 8- 2-2002 and all exercise of possession etc. Was ordered on 19-3-2002. The Rent Controller was in no hurry and crazy that he forgot to observe the legal formalities for the service purpose in the larger interest of justice that nobody should be condemned unheard. The learned counsel further submitted that the execution proceedings were also completed in one month without notice to respondent No,2 and direct warrant of possession was issued which was returned unserved but the Executing Court observing that the warrant of possession since returned refused, forcible warrant of possession was issued with the help of the police and breaking the locks of the suit shop. The application for setting aside the ex parte decree/order was also maltreated and without affording opportunity to the petitioner to prove his stance, dismissed the same on misconceived grounds against the record. Similarly the Additional District Judge on appeal also treated the appeal in cursory manner and without appreciating the facts on record dealt it off-handedly and dismissed the same. He lastly argued that the learned subordinate Courts had acted illegally and did not exercise the powers vested in them.
5. On the other hand the learned counsel for landlord/respondent No,1 while resisting the contentions put forward by the learned counsel fir the petitioner submitted that the petitioner knew the whole proceedings before the Rent Controller and the Executing Court intentionally avoided to appear before the Court and when the execution proceedings were satisfied, possession was taken over, thereafter, jumped after quite long time and moved the application for setting aside the ex parte order dated 8-2-2002.
6. We have heard the learned counsel for the parties and have gone through the record of the case with their able assistance.
7. Muhammad Hussain, landlord/respondent No,1 moved an eviction petition against Muhibullah, tenant/respondent. No,2 on the ground of default on 5-1-2002. After substituted service and proclamation in the 'Daily Jehad', Peshawar ,respondent No,2 was proceeded against ex parte followed by ex parte evidence and ejectment order vide 8-2-2002. The landlord/respondent No,1 consequent upon ex I arte order/decree filed an execution petition for possession of the suit shop which execution was processed and the possession of the shop in question was delivered to him despite of the fact that no personal service was effected on respondent No,2, or the petitioner. The notice was returned unserved even then the Executing Court issued warrant of possession on which the Bailiff submitted a report that respondent No,2 refused to accept the notice and is not ready to hand over the vacant possession of the shop in dispute to the landlord/respondent No,l.
There is no witness cited on the warrant that in whose present respondent No,2 refused to accept the notice. Still a forcible warrant of possession was ordered by breaking the locks and doors of the suit shop with the aid of the police. The whole exercise of ejectment application and possession order consumed about somehow two months.
8. Above all the Rent Controller while .Dealing with the application for setting aside the ex parte order also conducted in the manner not warranted under the law. The petitioner with his application for setting aside the ex parte order placed crucial documents substantiating the fact of his stand as to the tenancy rights. He has annexed with his application telephone connection application/bills, electricity supply forms/bills, Income Tax papers and Corporation receipts showing his occupancy in the suit premises. The statement of the landlord/respondent No,1 on file also reveals the fact that the petitioner used to remit monthly rent of the suit shop to him through money order which fact of controversy cannot be resolved without evidence. The Rent Controller culminated the matter just on presumption and probabilities and dismissed the application for setting aside the ex parte order with one stroke of pen "that in spite several mode of service the applicant failed to appear in the Court, no sufficient cause of non-appearance is shown and that the disputed property is already handed over to the decree-holder". Similarly the Appellate Court observing that "the execution is already satisfied, the possession is taken over by the landlord/respondent No,1, the appeal has become infructuous and now it is a matter of civil litigation" dismissed the appeal which observation of the Appellate Court as to the satisfaction of the execution is not only illegal but show the lack of legal knowledge on the part of the Presiding Officers of both the Courts below. The executing proceedings are governed under the Civil Procedure Code, so it is within the competence of civil Court to recall, review and cancel its order if subsequently found to be illegal, perverse or there is any error on the face of record. So in the case in hand in case the ex parte decree is set aside the Executing Court under section 144 of the Civil Procedure Code restitute the possession so taken in pursuance to execution, and no civil suit for possession lie in the circumstances of the case and such possession shall be restored in original conditions as existing at the time of taking the possession. Even if after possession the property is rented out to the other tenant, the person put into possession after dispossession of the original tenant also be liable to ejectment and possession shall have be restored to the original tenant.
Help in this regard is sought from "S.A. Latif v. J.B. Dubash and 5 others" PLD 1970 Kar. 220 and "Messrs Southern Commercial Corporation, Karachi v. Abdul Hussain and another" PLD 1976 Kar. 918, the relevant portions are reproduced as below:-- PLD 1970 Kar. 220 "(d) Civil Procedure Code (V of 1908), S.144 read with West Pakistan Urban Rent Restriction Ordinance (VI of 1959)--Tenancy---Protection of ejectment given by West Pakistan Urban Rent Restriction Ordinance, 1959---Applies only where relationship of landlord and tenant exists--- Appellant inducted as tenant by landlord on partial execution of ejectment decree against earlier tenant pending his appeal against order---Earlier tenant succeeding in appeal filing application for restitution under S.144---Appellant's plea for protection under provisions of West Pakistan Urban Rent Restriction Ordinance, in circumstances, rejected---Trial Court, held, had jurisdiction to dispossess appellant under S.144, C.P.C. (e) Civil Procedure Code (V of 1908), S.144---Restitution- Benefit of S.144 has reference to state of things obtaining before the change.
' The appellant was inducted as tenant on partial execution of ejectment decree against earlier tenant when earlier tenant's appeal was pending. The appeal of earlier tenant was accepted and his application for restitution under section 144, C.P.C. Was resisted by the appellant on the plea that restitution should not be ordered if it results in injustice; ' Held, in the instant case, the appellant cannot be said to be placed in the position of decree- holder. The benefit of section 144, C.P.C. Has reference to the state of things as obtaining before the change. The appellant cannot satisfy this requirement. If the appellant had expended money he must have done so at his own risk, for he should have known that the proceedings were then pending and he could be affected by result of it".
PLD 1976 Kar. 918 ----S.13---Landlord in pursuance of ex parte ejectment order obtaining possession of premises in execution proceedings and inducting another person as his tenant-Sum ex parte ejectment decree later set aside by Rent Controller on application of original tenant---Person put into possession by landlord---Held, also liable to be ejected from premises---Possession to be restored to original tenant".
' In this context guideline is also available in 1980 CLC 44.
9. In the wake of the above discussion and legal position the conduct of proceedings on the application for setting aside the ex parte order on the part of the Courts below was void, ab initio and illegal who have not taken the pain to proceed with the matter according to law. The subordinate Courts did not afford opportunity to the petitioner to prove his stance which is highly deplorable and amounts to condemning a party unheard and also tantamount to playing with the valuable rights of the affected party. We are, therefore, inclined to accept this writ petition, although the scope of writ petition is very meager in rent cases but due to unscrupulous exercise it warrants interference, as such the ex parte ejectment order dated 8-2-2002, order dated 1-7-2002 on the application for setting aside the ex parte ejectment order and the order dated 25-11-2002 of the Appellate Court are set aside. The ejectment petition is remanded to the learned Senior Civil Judge/Rent Controller, Peshawar to adjudicate upon the matter himself strictly according to law.
He is further directed that the possession of the shop in dispute shall be restored to the petitioner through the process of the Court forthwith under section 144 of the Civil Procedure Code in the position existing at the time of taking over the possession of the suit shop on 28-3-2002. Even if the shop in question is further rented out to a new tenant, the third party despite not party in the rent case is also liable to be ejected and to face the consequences arisen out of ex parte decree. The Rent Controller is further directed to array the petitioner as respondent No,2 in the ejectment application and proceed with the case on merits. The office is directed to send the record to the quarter concerned immediately.
' MALIK HAMID SAEED, J.--- I would like to add that as discussed in the judgment, the learned Rent Controller/Civil Judge has conducted the proceedings in a very irresponsible manner which fact cannot be ignored, therefore, this judgment be placed on the service record of the learned Judge with direction to the Registrar of this Court that this may be brought into the notice of the Administration Committee at the time of evaluating the annual performance of the Judge.