' The respondent, Haji Ghulam Mahmood filed an application against the petitioner, Said Ahmed, for his ejectment from certain premises. On 8th June, 1978 the petitioner did not appear before the Rent Controller, who was seized of the ejectment matter, and, therefore, he was proceeded against ex parte. On the same day, the learned Rent Controller directed the respondent to produce evidence, in support of his application, on the 8th July, 1978. In the meantime, on 20th June, 1978, the petitioner made an application for setting aside the ex parte proceedings and notice of that application was ordered to be issued to the respondent for 5th June, 1978. On 25th June, 1978, the peti. Tioner did not appear to prosecute his application and, therefore, it was dismissed in default.
On 8th July, 1978 also, when the case came up before the learned Rent Controller for respondent's evidence, the petitioner was not present. The respondent, however, entered appearance on that date and after examining himself as his own witnees closed his case. The learned Rent Controller, then adjourned the case to 17th July, 1978 for orders. Subsequently, the petitioner made several applications for setting aside the ex parte proceedings but in vain. Ultimately, on 28th January, 1980 the learned Rent Controller passed an ejectment order against the petitioner on the basis of the respondent's statement recorded on 8th July, 1978. That order was challenged by the petitioner by means of an appeal before an Additional District Judge but without success. He has, therefore, filed this writ petition.
2. It was contended by learned counsel for the petitioner that since the petitioner had joined proceedings before the learned Rent Controller after the respondent's evidence had been recorded; the learned Rent Controller ought to have allowed an opportunity to the petitioner to produce his evidence in rebuttal. Since the ex parte proceedings ordered against the petitioner were not set aside he could not participate in the proceedings which had taken place after he had been proceeded against ex parte. On 8th July, 1978 there were ex parte proceedings against the petitioner and be was also not present when the respondent's evidence was recorded and the case was adjourned for orders. Thus, the stage of evidence had passed when the petitioner had entered appearance before the learned Rent Controller. He was, therefore, not entitled to an opportunity to produce evidence in rebuttal. In this view of the matter, I am unable to agree with the learned counsel and that despite having been proceeded against ex parte the petitioner was entitled to produce evidence in rebuttal of the evidence led by the respondent.
3. Another plea raised by the learned counsel was that there was no evidence to sustain the order of ejectment inasmuch as the statement made by the respondent was simply to the effect that whatever had been stated in the ejectment application was correct. It is true that in his statement the respondent had not repeated what he had alleged in the ejectment application but he did state on oath that averments made in the application were true. This statement of the respondent, to my mind, did constitute evidence and since it had gone un-rebutted, the learned Rent Controller could order eviction of the petitioner on the basis thereof. Even if his statement was not evidence as contemplated by the Evidence Act, 1872, it would make little difference because the said Act is not strictly applicable to proceedings before the Rent Controller. After the recording of the respondents statement, the learned Rent Controller was satisfied, within the meanings of subsection (2) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, hereinafter referred to as the said Ordinance, that the petitioner was a defaulter and he was, therefore, justified in ordering his ejectment. The manner in which the respondent had made his statement is, therefore, of no avail to the petitioner.
4. In the present case, the respondent's plea was that the rate of monthly rental was Rs, 225 but the petitioner's contention was that it was Rs, 25 only. The learned Rent Controller had, while ordering deposit of rent, under the first part of subsection (6) of section 13 of the said Ordinance, tentatively fixed the rate of rent at Rs,
25. He, however, did not make final determination of the rent payable to the respondent while ordering eviction of the petitioner. In view of this lapse of the learned Rent Controller, it was urged by learned counsel for the petitioner that the concluding portion of subsection (6) of section 13 of the said Ordinance obliged the learned Rent Controller to finally determine the amount of rent due from the petitioner but as he had failed to do so, his order relating to ejectment of the petitioner was open to interference by this Court.
5. It is true that according to the concluding portion of subsection (6) of section 13 of the said Ordinance the learned Rent Controller was required to make final determination of the amount of rent payable to the respondent but C his omission to do so at the time of making the ejectment order does not invalidate, the order of eviction. Subsection (8) of section 13 of the said Ordinance also makes a mention of the final determination of rent due to the landlord but, as already held by me in Ali Hassan and another v. Sheikh Bashir Ahmad and another (1) the determination contemplated by subsections (6) and (8) of section 13 of the said Ordinance can be separately made by the learned Rent Controller even after the making of an ejectment order. I am, therefore, unable to agree with the, learned counsel that the mere fact that the learned Rent Controller had not made the determination in question while ordering ejectment of the petitioner would justify interference with the order of ejectment made by him.
6. There is no merit in this petition. It is dismissed in limine.
(1) 1979 CLC 159