' SAJJAD ALI SHAH, J.-This second appeal is filed against the impugned judgment dated 3-6-1978 of learned District Judge, Hyderabad whereby appeal filed against the order of eviction passed by the learned Rent Controller under section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter to be referred to as the said Ordinance) has been dismissed.
2. Briefly stated the facts are that the respondent/landlord filed an application for ejectment against appellants, namely Amarlal (tenant) and Permanand (alleged sublettee) on the grounds of non-payment of rent, subletting without consent or prior permission of the landlord and requirement of denied premises for personal use. The premises in question are two joint shops bearing City Survey Nos. 142 and 142 in Ward No, 2 of Jacobabad town let out at monthly rent of Rs, 75 per month. This application for ejectment was filed on 14-10-1975. Proceedings before the Rent Controller were contested by the present appellants who filed written objections raising a number of pleas and denying the allegations made in the application for the purpose of ejectment.
Thereafter issues were framed and evidence of the landlord and his two witnesses, namely Muhammad Saeed and Muhammad Rafiq was recorded. By statement dated 20-4-1977 the side of the landlord was closed and thereafter the matter was fixed before the Rent Controller for recording evidence of the present appellants. On 28-9-1977 when the case was fixed for recording of evidence of the appellants as stated above, an application was moved before the Rent Controller by the counsel for the present appellants for adjournment on the ground that he was busy in the High Court in cases fixed on 26-9-i977 and 29-9-1977 as such he was not in a position to attend the Court of Rent Controller at Jacobabad on 28-9-1977. Request in the application for adjournment was rejected by the Rent Controller, who also closed the side of the present appellants by not allowing them to have their evidence recorded and adjourned the case to 29-9- 1977 for arguments. On 29-9-1977 appellants moved an application for further time mentioning the facts as stated above that their Advocate was busy in the High Court at Karachi and could not attend the Court of the Rent Controller and further that one of the appellants was present outside the Court of Rent Controller but could not hear the call as such the closing of the side of the appellants was not proper. Subsequently Mr. Naraindas D. Kapoor, Advocate for the present appellants filed an application under Order XLII, rule 1 and section 151, C. P. C. Read with section 13 of the said Ordinance in the Court of Rent Controller for review and setting aside ex parte order dated 28-9-1977 with further prayer to allow the present appellants to lead evidence in the interest of justice. Notice of this application as well as previous application filed by one of the appellants was issued and after hearing the parties the learned Rent Controller dismissed these applications mainly for the reason that he has no jurisdiction or authority to review his own order passed on 28- 9-1977, whereby evidence of the present appellants was shut out. Subsequently the learned Rent Controller passed final order of ejectment by discussing the evidence produced by the respondent and concluding that this evidence stands unchallenged and un-rebutted as the present appellants have failed to produce any evidence and consequently allowed the application and ordered eviction of the present appellants. Against this order of ejectment the appellants filed an appeal before the learned District Judge and took up the plea that order passed ex parte by the learned Rent Controller on 28-9-1977 shutting out the evidence of the appellants was illegal and adjournment should have been granted as requested in the application but the learned District Judge could not accept the contention and dismissed the appeal.
3. Mr. Nooruddin Sarki, learned counsel for the appellants has raised two main contentions before me. Firstly that the final order of ejectment passed by the Rent Controller is not based on merits because of the evidence of the present appellants has been shut out improperly and that the Rent Controller had no justification for rejecting request for adjournment made in the application filed by the counsel for the present appellants on the ground that he was busy in the High Court and could not appear before the Rent Controller at Jacobabad on 28-9-1977. Secondly that the view taken by the Rent Controller that he has no jurisdiction or authority to review his own ex parte order is incorrect.
4. So far as the first contention as stated above is concerned, it appears from the final order of ejectment passed by the Rent Controller that there is no mention in it about the shutting out the evidence of the appellant and in the said order evidence of the respondent is discussed in detail and it is further stated that evidence of the respondent goes unchallenged and un-rebutted for the reason that the appellants have failed to produce any evidence. Probably this is so for the reason that previously the learned Rent Controller has dismissed the application filed on behalf of the appellants for review and setting aside ex parte order by his order dated 5-12-1977. I have read this order and it appears from this order that the learned Rent Controller has disposed of both applications one made by one of the appellants on 29-9-19/7 for extension of time and other made by the counsel for the appellants for review and setting aside the ex parte order passed on 28-9-1977. In the said order it is stated by the learned Rent Controller that the application made by one of the appellants on 29-9-1977, which is on record as Exh. 47 does not disclose that request was made for opening the side of the appellants, whose evidence was closed by order passed by him on 28-9-1977. This application made by the party is in Sindhi and I have read the contents which clearly indicate that it is stated therein by appellant No, 2 that on the previous day i,e, 28-9- 1977, his counsel could not be present because he had gone to Karachi and was appearing in the High Court at Karachi and secondly that he (appellant No, 2) was present outside the Court of the Rent Controller while the case was called out and could not hear the call and remained standing there when subsequently he was informed that because he was absent, his side of the evidence was closed and the case has been fixed for argument. The prayer is made in the application for further time. Although it is not clearly stated that prayer is made for reopening the side of evidence but the contents are clear that the application of the Advocate for adjournment was rejected and the side of the evidence was closed and the appellant was present outside the Court and could not hear the call. Another interesting feature of this application is that the learned Rent Controller has ordered issuance of notice to the other side and fixed the hearing of this application on 11-10-1977.
This order on the application is in the handwriting of the Rent Controller himself. It is clear from this order that the Rent Controller treated this application as an application for setting aside the ex parte order and reopening the side, otherwise if this application was deemed to be an application for just extension of time, there was no need to pass order on it for notice to the other side. The second reason given by the Rent Controller in his order dated 5-12-1977 is that the appellants were also not present neither the witnesses were present as such their side was closed. The case diary of 28-9-1977 shows that counsel for the applicant was present. Opponents and their counsel were called absent. Adjournment application sent by Mr. Naraindas through his clerk rejected. Order passed on the order sheet. Side of the opponents closed. This case diary does not appear to be consistent with the order passed by the learned Rent Controller on the application for adjournment sent by the counsel. The order on the application for adjournment made by the counsel, which is Exh. 46 on the record is as under :- "The Advocate for the opponents and opponents called absent. Application stands rejected and the side of the opponent stands closed. Further order on the order sheet."
5. It is not clear from the order of the Rent Controller on the application that this application was sent through the clerk of the Advocate. Secondly when the application is signed by the Advocate and request is made by him for adjournment on the ground that he is busy in the High Court at Karachi on 26-9-1977 and 29-9-1977 and cannot appear in the Court of the Rent Controller at Jacobabad on 28-9-1977, then how can the Advocate who is at Karachi can be called out in the Court of the Rent Controller at Jacobabad. It appears that the learned Rent Controller has not applied his mind while passing this order and there was no need to call the Advocate who was already at Karachi on the date when application was submitted in the Court of Rent Controller.
Thirdly case diary of 28-9-1977 shows that application for adjournment filed on behalf of the counsel has been rejected, side of the concerned party is closed and the case is adjourned to 29- 9-1977 for arguments i,e, the following day. It is not understandable as to why the learned Rent Controller had to adjourn the case to the following day after shutting out the evidence of the appellants, rejecting the request for adjournment of the counsel particularly, when in the application for adjournment it is clearly stated that the counsel is busy in the High Court at Karachi on 26-9-1977 and 29-9-1977. If the Rent Controller wanted to adjourn the case for arguments after shutting out the evidence of the party, at least he could have given a longer date so that the counsel for the appellants could appear on the next date and there was no justification at all for the Rent Controller to adjourn the case to the following day when it is clearly stated in the application that the counsel was busy before the High Court on 29-9-1977.
6. The learned Rent Controller vide his order dated 28-9-1977 has dismissed the application filed by the counsel of the appellants for review and setting aside ex parte order passed on 28-9-1977. The application for review and setting aside the ex parte order is supported by the affidavit of Permanand, appellant No, 2, who has stated therein that on 25-9-1977 his counsel Mr. Naraindas left for Karachi to appear in cases in the High Court. On 28-9-1977 Mr. Naraindas appeared in two Constitutional Petitions in High Court before the then Acting Chief Justice Mr. Justice Agha Ali Hyder and Mr. Justice S. A. Nusrat. The numbers of the Constitutional petitions are 574/77 and 575/77. He has further stated that the adjournment application was submitted and he was present in the Court premises but could not hear the call and in the meantime his side of evidence was closed. As against this application and affidavit, objections have been filed, which are on the record as Exh.
50. There is no denial in the objections that counsel Mr. Naraindas was not busy before the High Court on 28-9-1977 as asserted in the affidavit but only it is stated that on the said date opponent Permanand was not present in the Court and it was Munshi of the counsel who produced application for adjournment.
7. Now when this application for adjournment was filed in the Court of Rent Controller on 28-9-1977, praying therein that the case be adjourned for the reason that counsel was busy in the High Court on 26-9-1977 and 29-9-1977 as the counsel was appearing on these two days in criminal appeals fixed for regular hearing. It is further stated in the said application that apart from these two criminal appeals which are fixed for regular hearing on the dates mentioned above, the counsel had to file and pursue two writ petitions on urgent motion, hence he was not able to attend the Court of the Rent Controller on 28-9-1977. I think this request in the application for appearance in the High Court by the counsel was rejected in a hurry, unreasonably and without application of mind. It was physically impossible for the counsel to appear at Jacobabad on 28-9-1977, when he used to appear in the High Court at Karachi on 26-9-1977 and 29-9-1977. Furthermore for 28-8- 1977, when he could not appear before the Rent Controller at Jacobabad an affidavit was filed in support of application for setting aside ex parte order, which clearly states that Mr. Naraindas had appeared on 28-9-1977 in two constitutional petitions before the Division Bench in the High Court.
The number of the Constitutional Petitions are also given. There is no denial in the affidavit that the counsel did not appear in the High Court on these dates. In these circumstances, there was every justification for setting aside the ex parte order passed on 28-9-1977.
8. Although the learned Rent Controller has not given any valid reason for rejecting the application for adjournment on 28-9-1977, nor has he assigned any reason for rejection of the adjournment application in his order dated 5-12-1977 but the learned District Judge has stated in the impugned judgment that after the evidence of the respondent was closed on 20-4-1977 the case was adjourned on six occasions upto 28-7-1977 and as many as five adjournments were given on the applications filed by the appellants. It appears that view of the learned District Judge is that on the 6th occasion request for adjournment made by the appellants was not justified. I have carefully examined the case diary of the record of the learned Rent Controller. In between 20-4-1977 when the side of the respondent was closed after the evidence was recorded and 28-9-1977 when the application for adjournment by the counsel for the appellants was rejected and their evidence was shut out there are six adjournments granted by the Court. On 11-5-1977 Muhammad Saeed respondent was present and his counsel was absent. Mr. Naraindas counsel for the appellants was present. There was an application for adjournment on behalf of the respondent Muhammad Saeed which was granted. On the next date i,e, 2-5-1977 Mr. Sardar Khan counsel for the respondent was called absent. Mr. Naraindas, counsel for the present appellants was present. On the application of Muhammad Saeed adjournment was granted and it is wrongly stated in the case diary that adjournment was granted on the application of the opponents. On the next date i,e, 22-6-1977 Mr. Sardar Khan was present. Mr. Naraindas was present and adjournment was granted on the application filed on behalf of the opponents/respondents on the ground that the opponent was sick and on this application there is recorded no objection by the Advocate for the applicant/respondent. On 12-7-1977 adjournment was granted on the application of Mr. Naraindas on the ground that some witnesses had gone out of station. On this application there is order of the Rent Controller that the adjournment is granted for the last time. On 27-7-1977 both the learned counsel for the parties were present and application for adjournment was made by Mr. Naraindas on the ground that he was going out of station to attend to some urgent work. There is recorded no objection on this application by the Advocate for the other side. On 18-9-1977 both the learned counsel for the parties were present and adjournment was granted on the application filed by Mr. Naraindas on the ground that witnesses were out of station. The learned Rent Controller has granted this application and further stated in the order that no further adjournment will be given.
On 28-9-1977 the application was filed for adjournment by Mr. Naraindas on the ground that he was busy in the High Court at Karachi. It appears that from the last date i,e, 28-9-1977, on for occasions adjournment was sought on behalf of the present appellants and out of them on two occasions the dates were taken with no objection from the counsel of the other side and only on two other occasions adjournment was sought for the reasons stated in the applications which were accepted and the adjournments were granted. In these circumstances blame cannot be thrown on the appellants that they were seeking adjournments without valid grounds or to delay the progress of the proceedings.
9. Now the question arises whether the adjournment should have been granted by the Rent Controller on 28-9-1977 when application for adjournment was filed before him that counsel was busy in the High Court. It is well settled that the Court in which the adjournment is being sought has to see whether there is sufficient cause preventing counsel for the party from attending the Court. If there is sufficient cause the adjournment is to be granted and if there is not sufficient cause the adjournment can be refused. What is sufficient cause is the discretion of that Court to decide where application for adjournment is made. "Sufficient Cause" depends on the facts and circumstances of each case and no hard and fast rule can be laid down to define it. It is held in the case of Baboo Jan Muhammad v. Abdul Ghafoor (1), that determination of "sufficient cause" is a matter within discretion of the Court to be exercised judicially in relation to all circumstances of the case. In that case counsel arrived in the Court of the Civil Judge late as he was busy in the High Court and in the meantime his case was dismissed. It was held that in these circumstances of the case there was sufficient cause for restoration. In the case of Salamat Bibi and others v. Settlement and Rehabilitation Commissioner, Multan (2), the counsel could not appear in the High Court as he was busy in the Supreme Court and the High Court was informed by one Advocate and a request was made for adjournment on that ground which was turned down and the case was dismissed in default. Application for restoration of appeal was also dismissed. Supreme Court held that the counsel was busy before the Supreme Court and as such could not appear before the High Court and there was sufficient cause and the appeal was restored. The following portion from the judgment of the Supreme Court which is pertinent is reproduced below :- "Order XLI, rule 19 of the Code of Civil Procedure gives the requisite power to the appellate Court to readmit an appeal dismissed for default where it is proved that he (the appellant) was prevented by sufficient cause from appearing when the appeal was called on for hearing'. As to what is or is not sufficient cause for the purposes of this rule must necessarily depend upon the facts and circumstances of each case, for as explained by the Federal Court in the case of Malik Mumtaz Ahmad and others v. Umtul Habib and others these words are not susceptible of an exact definition and no hard and fast rule can be laid down to cover all possible cases. Each case must be judged upon its merits and its peculiar circumstances. While it {{FOOT NOTE}}
(1) PLD 1966 SC 461 (2) PLD 1966 SC 467 {{FOOT NOTE}} ' cannot be tolerated that the counsel should be remiss, in the discharge of their duties and leave the Court waiting for them, it is equally desirable, and even necessary, that the case should be heard and decided on merits, and where the non-appearance was not intentional and the counsel or his client had made genuine efforts in taking reasonable precautions to be present at the hearing, a very strict view as to 'sufficient cause' should not put him out of the Court."
10. In view of the legal position enunciated above it is clear that in the circumstances of this case as discussed above there was sufficient cause which prevented Mr. Naraindas counsel for the appellants from appearing in the Court of Rent Controller on 28-9-1977 as he was busy in the High Court, the request for adjournment should have been granted and the order passed on that day shutting out evidence of the appellants is not proper and is liable to set aside.
11. The other Contention raised by the counsel is that the learned Rent Controller dismissed the application for review and setting aside ex parte order on the ground that he had no jurisdiction and authority to review his own order. This view is not correct for the reason that although there is no specific provision in the said Ordinance for such review and setting aside ex parte order, it has been decided and on good authority that the Rent Controller, under the West Pakistan Urban Rent Restriction Ordinance, 1959, can set aside the ex parte order, where the opponent shows that he was precluded from attending Court on the relevant date of hearing on account of a sufficient cause. It is held by majority view in the case of Muhammad Aslam Mirza v. Mst. Khurshid Begum (1) as under :- "The Legislature is supposed to know the rules of natural justice and where no contrary procedure is prescribed, it is to be assumed that the Legislature intended that the procedure of natural justice is to be followed. Proceeding in this way, it is to be noticed that in the West Pakistan Urban Restriction Ordinance VI of 1959 (hereinafter called the Ordinance) there is no indication as to what procedure is to be followed by a Rent Controller in concluding the proceedings and deciding the matters and cases coming up before him. The rules of Civil Procedure Code do not apply per force of any statute to a Rent Controller, though it is open to him to follow them. Since the Legislature has not prescribed any particular procedure to be followed by a Rent Controller, it is, therefore, to be assumed *and held that the Legislature intended that he was to follow the procedure and rules of natural justice.
' A distinction is to be maintained (a) in filing an application for claiming a rehearing of a case, ex parte decided on the one hand, and (b) filing an application for review or setting aside the ex parte judgment itself on the other hand. The points of distinction are that (I) in the former type of proceedings the defendant-petitioner claims a re-hearing on the ground (to put it broadly) that he was prevented, by some sufficient cause from appearing on the relevant date of hearing and taking part in the proceedings of the case, while in the latter types of cases, he challenges the ex parte decree itself on its own merits including the errors of procedure in the trial of the case, (ii) in the former case, the merits of the ex parte decision {{FOOT NOTE}}
(1) PLD 1972 Lah. 603 {{FOOT NOTE}} ' or judgment are not to be taken into consideration: The latter type of cases partakes some of the character of a review while the applications for claiming a rehearing on the ground of earlier absence due to some sufficient cause are not in nature of a review.
' The obvious effect of these points of difference is that whereas a review may not be available unless so provided for in statute, an application to claim a rehearing being in the nature of a prayer to claim natural justice will always be available."
12. This view is reiterated in the case of Abdul Majeed v. Ibrahim (1), and the relevant observations are on page 241 where it is held that on general plane a Rent Controller is not precluded on the basis of natural justice to recall an order made ex parte against the tenant on the ground that he was precluded on the relevant date from appearing due to a sufficient cause."
13. In these circumstances and for the reasons mentioned above I have come to the conclusion that the Rent Controller was competent to recall the order passed by him on 28-9-1977 as sufficient cause was shown for non-appearance of the counsel in his Court on that day as he was busy in the High Court at Karachi and there was no justification for shutting out the evidence of the appellants, as such I set aside the impugned judgment of the District Judge and the final order of the ejectment passed by the Rent Controller in this case and remand the case back to the Rent Controller with the direction that he should record the evidence of the appellants and give his decision on merits after evaluation of the evidence of both the parties. As the case is old I direct the Rent Controller to record the evidence and finalise the proceedings within a period of two months from the date of this judgment. Appeal is allowed in the terms stated above and there will be no order as to costs. {{FOOT NOTE}}
(1) PLD 1975 Kar. 338 {{FOOT NOTE}}