' ZUBDA-TUL-HUSSAIN, J.-This S.A.O. Is directed under section 15 of the Punjab Urban Rent Restriction Ordinance, 1959 against the order dated 9-1-2006, passed by the learned Additional District Judge, Lahore, whereby the ejectment order, dated 23-11-2004 passed by the learned Rent Controller was upheld.
2. The respondent, Khalid Iftikhar, being co-sharer in the disputed property Bled an ejectment petition against the appellants, on the grounds of default in payment of rent and personal need.
This ejectment petition was filed on 16-4-2003 and after taking certain proceedings the appellants were directed to file a written statement which they failed to Hie on the prescribed date because of which by the order dated 10-3-2008 the defence of the appellants was struck off. Consequently ex- parte proceedings were taken and ultimately and ejectment order dated 13-11-2004 was passed.
3. The contention of the appellants is that proper and fair opportunity of defence i.e, for filing written statement in the ejectment petition was denied to them and as such the impugned orders of ejectment are nullity in the eyes of law.
4. The learned counsel for the respondent has taken the court through the order-sheet of the learned Rent Controller which shows that after service of the appellants had been effected the proceedings were adjourned for filing of written statement, on 17-12-2003 the appellants requested for an adjournment which was allowed but on the subsequent date of hearing the learned Rent Controller being not available, the proceedings were adjourned to 16-2-2004. On that day the copy of the ejectment petition was thus provided to the appellants with a direction to file the written statement on 28-2-2004, which direction was not complied with and the petition was adjourned to 10-3-2004 as last opportunity for filing the written statement. As the written statement was not filed even on the day, the learned Rent Controller proceeded to strike off the defence of the appellants.
With reference to these proceedings, the learned counsel for the respondent has argued that numerous opportunities for filing written statement were provided to the appellants but they had been avoiding the filing of the written statement only to delay the proceedings. He, therefore, maintained that the appeal was liable* to be dismissed.
5. It is, of course, true that after the institution of the ejectment petition the proceedings continued for quite some time without any substantial progress but that alone cannot be a reason for penalizing any party unless such party is found responsible for it and its attitude is tainted with malice and contumacy. One factor which, however, cannot escape notice in this case is that the copy of the ejectment petition for the first time was provided to the appellant on 16-2-2004.
6. A party responsible to file a reply essentially is entitled to receive the copy of such petition which it has to meet with by means of a written statement and a party cannot be asked to file the written statement unless a copy of the plaint or petition has been supplied to it. Striking off the right of defence/written statement in a petition is certainly somewhat analogous to the penal provisions of Order VIII rule 10, C.P.C. Which provides that where any party from whom a written statement is required, fails to present the same within the time fixed by the Court, the Court may pronounce judgment against him or make such order in relation to the suit as it thinks fit. As already stated, the supply of copy of the plaint, and in the case of rent application, copy of the ejectment petition, is one of the basic responsibility of the plaintiff/ petitioner.
7. The right or the liability for filing written statement to the plaint or petition would, therefore, start from time when such copy is provided to the defendant/respondent. In the case of the Abdul Qudoos v. Abdul Rehman (PLD 1970 AJ&K 21) where the provisions of Order VIII, Rules 1 and 10, C.P.C.
Came under consideration in relation to the circumstances pertaining to the failure in filing the written statement, it was held that the defendant could not be directed to file the written statement unless supplied with a copy of the plaint and where he was not supplied such copy the judgment of the trial Court under rule 10 of Order VIII, C.P.C. Against the defendant for failure to file a written statement in the circumstances, constituted material irregularity. This principle is squarely applicable to the facts of the present appeal.
8. There is no doubt that the appellants had been given two opportunities after the supply of the copy of the petition which they could not avail of but this aspect has also twofold application.
Firstly, it has to be seen whether the opportunity was and could be termed as the fair opportunity for filing the written statement or it had put the time constraints on the shoulder of the appellants.
9. In view of the above, the impugned orders of the ejectment are not sustainable in law. The appeal is, therefore, allowed, the impugned order dated 23-11-2004, passed by the learned Rent Controller and the one dated 9-1-2006, passed in appeal by the learned Additional District Judge, Lahore, are set-aside and the ejectment petition is remanded to the learned Rent Controller for proceeding in accordance with law after providing an opportunity for filing the written reply to the appellants.
10. Before parting with the judgment it may also be mentioned that the appellants have also challenged the ejectment order, on the ground that the respondent/petitioner could not file the ejectment petition as a cosharer for personal need without impleading the other share-holders.
The circumstances and the point on which the appeal has been decided in the above do not warrant finding of this Court on this issue at the present stage. Hence, this controversy is left upon the decision by the learned Rent Controller.
' The parties are directed to appear before the learned Rent Controller on 15-11-2008.