1. ' This order will dispose of Writ Petitions Nos. 2795 and 2824 of 1979 as both the writ petitions raise a common question of law though the facts are slightly different.
2. In Writ Petition No, 2795 of 1979 the facts are that the respondent No, 3, Mst. Saeeda Masud Bi, had filed an application for eviction under section 17 of the Cantonment Rent Restriction Act, 1963 (hereinafter called the Act) against the petitioners. The respondent No, 3, in House No, 1431/A.
2. Baghwan Das Building. Delhi Road, Sada'. Bazar, Lahore Cantt. Which belonged to her was running an educational institution by the name of M. B. English Junior Model School. Lahore. On the promulgation of M. L. R. 118 the relationship of landlord and tenant came into existence and the Government became the tenant in respect of the premises under respondent No,
3. In the proceedings the petitioners in spite of service failed to appear on 12th July. 1978, when the Rent Controller. Lahore Cantt struck off the defence of the present petitioners and passed the order of eviction on the same date. It was observed that the respondents had been given opportunities to file written statement three or for times but they did not avail of it and reliance was placed on a judgment of the Supreme Court reported as Qazi Ahmad Khan v. Mrs. S. Henry La! And another (1).
3. The petitioners were allowed thirty days' time to deliver the vacant possession to respondent No, 3.
4. The petitioners filed an appeal and the order of the learned Rent Controller was upheld by the learned District Judge, Lahore vide his order dated the 14th February, 1979. The aforesaid orders of the Rent Controller and District Judge have been impugned in the aforesaid Writ Petition No, 2795 of 1979.
5. W. P. No, 2824 of 1979 ' The facts of this case are that the petitioner who was a tenant in respect of Shop No, 427/7, R. A.
6. Bazar, Lahore Cantt., Lahore under respondent No. 1. In February, 1976, respondent No. 1 filed an application for the eviction of the petitioner under section 17 of the Cantonments Rent Restriction Act, 1963, for his eviction from the said shop on the ground of default in the payment of rent, damage and bona fide personal need. The petitioner was served through affixation. The petitioner appeared before the Rent Controller on 7th of July, 1976, and the case was adjourned to 8th September, 1976, for the filing of the reply to the petition for eviction. According to the petitioner there was a direction from the learned Rent Controller to the respondent No. 1 that he should deliver a copy of the petition for eviction to the petitioner but this direction was not complied with. The case having been adjourned from time to time but on 6th of April, 1977, the learned Rent Controller struck off the defence of the petitioner and ordered his eviction forthwith on the same date. The petitioner filed an appeal which was also dismissed by the learned District judge, Lahore vide his order dated the 30th April, 1979, and the learned Appellate Court also placed reliance on Qazi Ahmad Khan v. Mrs. S. Henry La! And another.
7. ' Both the learned counsel for the petitioners have argued that the provisions of subsection (1) of section 27 of the Act are mandatory and {{FOOT NOTE}}
(1) 1976 SC M K 515 {{FOOT NOTE}} ' the Rent Controller is bound to hold an inquiry. It is argued that there was no similar provision in the Rent Restriction Ordinance, 1959. And therefore, the decision reported as Qazi .4hmad Khan v.
8. Mrs. S. Henry Lal and another, was not applicable to the facts of the present case. It was further argued that there was no provision in the Cantonments Rent Restriction Act, 1963, permitting the Rent Controller to strike of defence except when a default is committed in not complying with the orders passed under subsection (8) of section 17 of the Act. This was precisely the contention on which his Lordship Mr. Justice Muhammad Afzal Zullah (as his Lordship then was) had admitted the writ petitions for regular hearing. ' would, therefore. He proper to reproduce section 27 of the Act.
9. '27. Procedure and power of Controller.-(1) No order under section 7, 8, 13, 15, 17 or 19 of this Act shall be made by the Controller except after holding an inquiry.
(2) For the purposes of holding an inquiry under this Act, the Controller and the Appellate Court shall have the same powers as are vested in a Court under the Code of Civil Procedure, 1908. (Act V of 1908) when trying a suit in respect of the following matters, namely:-
(a) Summoning and enforcing attendance of any person and examining him on oath;
(b) compelling the discovery and production of any document and other material evidence; and (c)issuing a commission for the examination of witnesses.
(3) The proceedings of every inquiry shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Pakistan Penal Code (Act XLV of 1860).
(4) The Controller shall be deemed to be a Court for the purposes of sections 480 and 482 of the Code of Criminal Procedure. 1898 (Act V of 1898).
10. ' Section 16 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter called the Ordinance deals with the identical subject-matter. Whereas section 27 also prescribes a procedure and also lays down the powers of the Controller, section 16 of the Ordinance only provides for the power of Controller to summon and enforcing attendance of witnesses, etc. And does not regulate the procedure. Section 16 reads as follows:- "16. Power to summon at4 enforce attendance of witnesses, etc.-(1) For the purposes of this Ordinance an Appellate Authority or a Controller appointed under this Ordinance shall have the same powers of summoning and enforcing the attendance of witnesses and compelling the production of evidence as are vested in a Court under the Code of Civil Procedure, 1908 ;
(2) The Controller shall for the purpose of section 480 of the Code of Criminal Procedure, 1898 are deemed to be a Court."
11. ' It would also be pertinent to point out that under section 13 of the Ordinance of 1959, there is no obligation on the part of the Rent Controller to hold an inquiry or under any other provision of Ordinance of 1959. The only power for striking off the defence of the tenant is under subsection (9) when the tenant fails to deposit the amount of rent in pursuance of the order passed under subsection (8) of section 17 of the Act. Section 16 of the Ordinance was interpreted by the learned Supreme Court in a case reported as Khadim Mohyuddin and another v. Ch. Rehmat Ali Nagra and another (1) It has been observed by the learned Judges of the Supreme Court that the Controller has been given powers of summoning and enforcing the attendance of witnesses and compelling the production of evidence and he is not bound in every case to follow the procedure as laid down in the Code of Civil Procedure. He has been given powers under sections 4, 10 (5) and 12 to make orders after holding such inquiry as he thinks fit. This was further considered to mean that in such enquiries the parties had no right to insist on production of such evidence as they desire to adduce in support of their case. In short their Lordships were pleased to hold that these enquiries may be such as are conducted by an Executive Officer. The provisions of these sections were compared by their Lordships of the Supreme Court with subsection (3) of section 13 of the Ordinance where it has been provided that before putting the landlord in possession of the tenanted premises rite Controller should be satisfied that the claim of the landlord is bona fide. It was further observed that the word 'satisfied' even if imported the necessity of an inquiry, even then it could not be said that in holding such inquiry he will be bound by any particular procedure.
12. ' This judgment has been cited by the learned counsel for the respondents to show that the learned Rent Controller, Lahore Cantt. Is not bound to follow any procedure in an inquiry.
13. ' In a recent case reported as Abdul Khaliq Qureshi v. Saeed Hassan Shah and S others (2), it was held that definition of 'issue' in Order XIV, rule 1, C. L. C. Was not applicable to the Ordinance, 1959 but the use of word 'issue' proves that it is in the ordinary sense that it had been used in section 13(6). From this it was concluded that where no issue arises, the matter could be decided on admission whether express or implied. It would, therefore, follow that if any matter is admitted no issue would be required to be framed on that matter. In this connection it was observed as follows :- "Though the term 'issue' is not defined in the Ordinance of 1959, but it arises (Vide Order XIV, rule 1, C.
14. P. C.) when a material proposition of fact and law is affirmed by one party and denied by the other.
15. If there is no denial, no issue would arise. Though the definition of 'issue in Order XIV, rule 1, C. P. C. Is not applicable to the Ordinance of 1959 but the use of the word 'issue' proves that it is in the ordinary sense that it has been used in section 13(6). Thus where no issue arises, the matter can be decided on admission whether express or implied. It would, therefore, follow that if any matter is admitted no issue would require to be framed on that matter." {{FOOT NOTE}}
(1) PLD 1965 SC 459 (2) 1979 CLC 118 {{FOOT NOTE}} ' This authority has also been cited by the learned counsel for the respondent for the proposition that since no written statement had been filed by the respondents, therefore, the learned Rent Controller was not bound to hold an enquiry in the matter and the averments contained in the petition shall be deemed to be admitted.
16. ' It would be appropriate to examine the case reported as Qazi Ahmed Khan v. Mrs. S. Henry Lal and another which has been relied upon by the learned Rent Controller and the Appellate Court in order to justify the action taken against the respondents. In this case certain observations were made by their Lordships of the Supreme Court justifying the action of the Rent Controller exercising powers under the Ordinance when of non-filing of the amended written statement the Rent Controller was held justified in striking off the defence of the petitioner. The relevant observations of their Lordships are quoted below :- "We have gone into merits of the case and have come to the conclusion that this is not a lit case for interference. The petitioner was granted several adjournments for filing the amended written statement. He failed to do so and in or opinion, he was thereby prolonging the litigation. In these circumstances, the learned Rent Controller was perfectly justified in striking off the defence of the petitioner. There is no ground to interfere. The petition is dismissed."
17. ' The learned counsel for the parties have not cited any judgment directly dealing with the subsection (I) of section 27 of the Act. After examining the relevant case law it would not be difficult to formulate the conclusions :-
(a) That subsection (1) of section 27 makes it mandatory for the Rent Controller exercising powers under the Act to hold an inquiry and this is evident from the reading of the section 27 of the Act A and section 16 of the Ordinance :
(b) that there are no similar provisions in the Ordinance 1959 except the provisions of sections 4, 10
(3) and 12 ;
(c) that there is no law by which the Rent Container is compelled' to hold an inquiry in a particular way as has been held by the a Lordships in Khadim Mohyuddin and another v. Ch. Rehmat Ali Nagra etc. PLD 1965 SC 459.
(d) that there is no provision of striking off the defence by the Rent Controller in the Act except where there is a non-compliance of C the order passed under subsection (8) of section 17 of the Act.
18. ' However, the question arises is whether the provision of Order VIII, rule 0 of the Civil Procedure Code will be applicable and in case the written azement is not filed the Court is bound to strike off the defence and in my humble view since there is a mandatory provision in subsection (1) f section 27 of the Cantonments Act it would not be possible in roceedings under the said Act. What would be the nature of the inquiry fter the written statement is not filed will depend upon the discretion of the Rent Controller but definitely he could not strike off the defence. The facts of the case reported as Qazi Ahmed Khan v. Mrs. S. Henry Lal and another were examined under the Rent Restriction Ordinance and not with relation of subsection (1) of section 27 of the AO-, and therefore, the observation of their Lordships are not applicable to the faces of the present case and the Rent Controller may follow the provisions of Civil Procedure Code. But nowhere there is a special procedure laid down under a special law. As already stated above section 27 has laid down the principal procedure to be followed by the Controller.
19. ' In view of the matter it is, therefore, held that the order dated 6th April, 1977 in Writ Petition No, 2824 of 1979, passed by the Rent Controller was without lawful authority after the written statement was not forthcoming, the learned Rent Controller was bound to hold some inquiry before passing of the order of eviction and not simply striking of the defence of the petitioners. For the same reasons the order passed in appeal by the learned District Judge dated 30th April, 1979 is hereby declared to be without lawful authority. In view of the above discussion the order of the learned Rent Controller dated 12th July, 1978 and that of the learned District Judge dated 14th February, 1979 in Writ Petition No, 2795 are also declared to be without lawful authority. The Rent Controller shall proceed from the same stage and pass orders in accordance with law. However, in the circumstances of the case there will be no order as to costs.