--This second appeal is directed against an order of ejectment whtazby the appellant, Zaka-ud- Dm alias Billa, had been directed to vacate a strop owned by the respondent, Muhammad Ismail.
2. The respondent had sought eviction of the appellant, inter alia, on the ground of default. It was alleged by him that the appellant was liable to pay rent at the rate of Rs. 250 per mensem for the shop in dispute, but he had failed to pay the same since July 1976. The ejectment application was filed on 22nd October 1977. While resisting the said application it was averred by the appellant that the rate of rent was Rs. 150 per mensem and that he had been paying the same to the respondent regularly. On 28th January, 1978 when the Rent Controller, before whom the ejectment matter was pending, proceeded to make an order under subsection (6) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, hereinafter referred to as the said Ordinance; the appellant and the counsel made an offer to the respondent's counsel that if the respondent would state by taking oath on the Holy Qur'an that the rate of rent was Rs. 250 per mensem and the same -had, not been paid since July 1976, he (appellant) would pay all the arrears of rent and would also be liable to be ejected from the shop forthwith. This offer was accepted by learned counsel for the respondent by saying that the respondent, who was not then present before the learned Rent Controller, would make the proposed oath on the next date It was also undertaken by the respondent's counsel that if the respondent did not make the above oath, he would withdraw the ejectment application. And forego the amount of rent due to him. In view of the aforesaid statements, the learned Rent Controller did not make an order for deposit of rent adjourned the case to 2nd February, 1978 for the making of oath by the, respondent. On Ind February 1978, although the respondent was present in person and the appellant was represented by his counsel yet the learned Rent Controller adjourned the case to 7th February 1978 for further proceedings. On 7th February 1978, the appellant's counsel withdrew from the ejectment proceedings with the permission of the learned Rent Controller and another counsel appeared to assist the appellant.
Before the respondent could make the oath on the said date the appellant submitted an application praying that the ejectment application may be decided on merits. In that application it was stated by the appellant drat as he was illiterate and simpleton .He had agreed to the oath proceedings due to misunderstandingand want of requisite knowledge. The respondent's counsel got a copy of the said application and submitted that there was no need of filing a reply thereto.
He also represented that his client was ready to make the desired oath. The learned Rent Controller heard arguments on the said application and rejected the same. He then directed the respondent to make the prescribed oath which was actually done by him. Thereafter, in . The light of the "above developments, the learned Rent Controller passed the order of ejectment against the appellant.
3. The order of the learned Rent Controller was challenged by the appellant by means of an appeal before an Additional District Judge, but without success. He has, therefore, come up in second appeal to this Court.
4. Khawaja Muhammad Tufail, learned counsel for the appellant, raised the following. Contentions with a view to avoiding the order of eviction made against the appellant :
(1) 71 he ejectment., of the appellant was ordered by the learned Rent Controller on the basis of the provisions of sections 8, 9, 10 and 11 of the Oaths Act. 1873, hereinafter referred to as the said.- Act, which were not available to the Rent Controller as he did not hear the ejectment matter as a Court.
(2) Even if the aforementioned provisions could be made use of by the learned Rent Controller, his order was liable to be set aside for the following reasons :
(a) There was no valid acceptance of the appellant's offer to settle the dispute by special oath inasmuch as his offer was accepted by his learned counsel and not by the respondent himself.
(b) The appellant had sought permission to retract from the agreement relating to oath proceedings, before the respondent had made the proposed oath but the learned Rent Controller had refused the desired permission without holding an inquiry into the facts and circumstances in which he had made the offer of oath.
(3) According to section 13 of the said Ordinance the Rent Controller could not order ejectment of the appellant without holding usual inquiry into the allegations made by the respondent for seeking his ejectment and since he had not conducted any such inquiry the order of ejectment made .By him was not sustainable.
5. In reply, it was submitted by Syed Iqbal Haider Zaidi, learned counsel for the respondent, that the said Act was available to the Rent Controller also and since the offer made by the appellant was accepted by the learned counsel for the respondent it was a valid acceptance of the offer. As regards the application of the appellant resiling from the offer, it was urged by him that as the reasons given by him in support of his application were not cogent ones the learned Rent Controller was justified in not allowing him to withdraw the offer. While dealing with the plea of the learned counsel for the appellant that the learned Rent Controller was bound to hold usual inquiry into the plea advanced by the respondent for seeking ejectment of the appellant, it was argued by the learned counsel for the respondent that since the appellant had himself agreed to the disposal of the ejectment matter on the basis of oath it was not necessary for the Rent Controller to decide the ejectment application on merits.
6. Elaborating his contention relating to the applicability of sections 8, 9, 10 and 11 of the said Act to proceedings before the Rent Controller, learned counsel for the appellant contended that the said provisions could be made use of by a Court only and as it has been well settled by now that a Rent Controller is not a Court but a persona designate those provisions were not available to him for deciding the rent case on the basis of special oath. Similar argument was advanced in Jamal Din v. Haji Mohammad Aslam (PLD 1965 Lah. 503) and it was held by a Division Bench of the erstwhile High Court of West Pakistan that if a Rent Controller administers oath to a witness and bases his decision on the deposition of such witness pursuant to affirmation and agreement of parties that they would be bound by his statement, the proceedings held by the Rent Controller would be valid and not without jurisdiction. No authority to the contrary was cited by the learned counsel for the appellant. I therefore, with respect, follow the view expressed in the case of Jamal Din and hold that the learned Rent Controller could decide the ejectment application on the basis of special oath prescribed by the appellant.
7. As regards the submission of the learned counsel for the appellant that since the offer of special oath was not accepted by the respondent himself but by his counsel it was not a valid acceptance of the said offer, learned counsel did not refer to any authority in, support of the argument advanced by him. I have, however, laid hands on two cases reported as Hem Lara v. Jamboo Prasad and others ( AIR 1959 ALL. 382 ) and Mathura Prasad and others v. Sita Ram and others (AIR 1940 Oudh 314) in which it was held that the counsel of a party has 'power to consent to settlement by oath. I have also gone through the power of attorney (vakalatnama) given by the respondent to his counsel by which he had expressly authorised him (counsel) to agree to the disposal of the case on the basis of an oath. The acceptance given by his counsel was subsequently ratified by the respondent by actually making the oath proposed by the appellant. I am, therefore, unable to agree with the learned counsel for the appellant that there was no valid acceptance of the appellant's offer to abide by the special oath
8. As for the withdrawal of his offer by the appellant, it is not disputed that a Court can, for sufficient reasons, allow a party to retract from agreement: to settle any dispute on the basis of .Special oath.
What is required to beseen in the present case is whether the cause shown by the appellant for resiling from the offer was such as to justify its withdrawal. As indicated above, the only reason given by the appellant to retract from the agreement to resolve the dispute by oath was that he was illiterate and simpleton and that he misunderstood the whole affair for want of requisite knowledge. He was assisted by a counsel when the offer of special oath was made and it is beyond my comprehension that his counsel had not explained to him the implications of the offer before the same had been jointly made by him and his counsel. It is not the case of the appellant that his counsel had let him down at the fateful moment. The withdrawal of his counsel from the case at a subsequent, stage is of little consequence because, to my mind, the appellant had decided to part with him with a view to gaining a ground for wriggling out of the solemn commitment made by him (appellant). Prima facie, the plea raised by the appellant for retracting from the agreement was devoid of substance arid, therefore, it did not need any probe. The failure of the Rent Controller to hold an inquiry into the aforesaid plea, therefore, does not detract from the validity of the order by which he had dismissed his application for withdrawal of the offer in question. It was not disputed by the learned counsel for the appellant that the appellant could not withdraw his offer without the permission of the learned Rent Controller and since the order by which he hail refused such permission to the appellant is not open to any legitimate exception, the belated effort of the appellant to resile from the offer is of no avail to him.
9. What is now to be examined is the last submission of the learned counsel for the appellant that .The learned Rent: Controller could not order ejectment of the appellant without holding usual inquiry into the averments made by the respondent to secure his eviction. He relied on subsection
(1) of section 13 of the said Ordinance to contend that a tenant could not be ejected except in accordance with the provisions of.' section 13. He then invited my attention to clause (i) of subsection (2) of section 13 to maintain that despite the agreement to settle their dispute on the basis of special oath the Rent Controller was required to hold inquiry into the matter in dispute.
Elaborating his arguments, it was submitted by the learned counsel that while holding the inquiry the learned Rent Controller ought to have, after framing necessary issues, recorded the parties' evidence and heard their arguments as is usually done in such cases, but since he had failed to do so, the order of ejectment made by him was violative of the provisions of section 13 and, therefore, not sustainable.
10. Subsection (1) and clause i(i) of subsection (2) of section 13 of the said Ordinance made the following reading : "13.--(1) A tenant in possession. Of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Ordinance, or otherwise, and whether before or after the termination of the tenancy, except in accordance with provisions of this section.
(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that__
(i) the tenant has not paid or tendered rent due by him in respect of the building or rented land, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord, or in the absence of any such agreement within sixty. Days from the period for which the rent is payable."
11. The question whether the Rent Controller is bound to hold an inquiry ; and if so, of what nature, was considered by the Supreme-Court in Khadim Mohyuddin and another v. Rehmat A.I Kagra and another (PLD 1965 SC 459) and it was ruled that he is not obliged to conduct inquiry in every case and that even in the cases in which an inquiry is required to be held, its nature is left to be determined by him. In this connection, relevant observations of their Lordships of the Supreme Court are as follows :- "From the provisions of the Ordinance it appears that though under section 16 the 'Controller' has been given powers 'of summoning and enforcing the attendance of witnesses and compelling the production of evidence' he is neat 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 (3) and 12 to make orders after holding such enquiry as he thinks fit. In such cases the question of nature of enquiry is left to hire. That means that in such enquiring the parties have no right to insist on production of such evidence which they desire to adduce in support of their case. Therefore, no machinery is prescribed for summoning witnesses or compelling production of documents in such enquiries. In short these enquiries may be such as are conducted by act Executive Officer. Furthermore, the Controller has been given power to regulate the use by a landlord of his own property, inasmuch as within the Urban Area the landlord may not convert a residential building, into a non-residential building. The power thus conferred on the Controller would appear to be purely executive. Then subsection (3)1 of section 13 says that before putting the landlord in possession of-the tenanted premises the Controller should be "satisfied that the claim of the landlord is bona fide". But there is no express mention of any enquiry by the Controller. If the word 'satisfied' imports the necessity of an enquiry, even then it cannot be said that in holding such enquiry he will be bound by any particular procedure.
We, therefore, conclude from the foregoing examination on the relevant provisions of the Ordinance that though some of the functions of the Controller are judicial in character, but yet he is not required to act judicially in discharging many of his functions. In these circumstances it will be difficult to hold that the Controller while performing his functions under this Ordinance acts as a Court. At the most it may be said that he acts in a qua3i judicial capacity."
The view expressed in the case of Khadim Mohyuddin and another was reiterated by the Supreme Court in Ahsanul Haq etc. v. Abdul Rahfm (1979 SCMR 338).
12. According to subsection (2) of section 13 of the said Ordinance, before the Rent Controller orders the ejectment of a tenant he is required to give him a reasonable opportunity to show cause against the application for his ejectment and then satisfy himself that the tenant is liable to be evicted E from the disputed premises on one of the grounds enumerated therein. These grounds include default in the payment of rent . In the instant case reasonable opportunity was actually given to the appellant (tenant) to show cause against the ejectment proceedings launched by the respondent. By availing of that opportunity, the appellant filed his reply refuting the plea of default raised by the respondent. Thereafter, when the learned Rent Controller proceeded further with the hearing of the application in the usual manner, the appellant (tenant) himself offered to settle the dispute by a special oath. His offer in the matter was accepted by the opposite party, namely, the respondent (landlord), and the learned Rent Controller decided the dispute accordingly. Thus, the learned Rent Controller had secured compliance with the requirements of subsection (2) of section 13 of the said Ordinance inasmuch as he had offered a reasonable opportunity to the petitioner to defend the ejectment proceedings and, while inquiring into the dispute in the manner suggested by none other than the appellant and his counsel and also approved of by the respondent had satisfied himself that the appellant was liable to be ejected from the shop in question on the ground of non-payment of rent. If the plea raised by learned counsel for the appellant that despite the agreement of the parties to resolve their dispute on the basis of special oath the learned Rent Controller ought to have tried and disposed of the ejectment application in the usual manner is accepted it will oblige a Rent Controller to hold a full-fledged inquiry even if the tenant agrees to summary acceptance of the ejectment application made against him. This would, for obvious reasons, be opposed to the intention of the framers of the said Ordinance. It is also note worthy that by deciding the ejectment application of the respondent as aforesaid, the learned Rent Controller did not commit any error of procedure. In fact, as held in the case of Khadim Mohyuddi'n and another, no particular procedure has been laid-down for the holding of an inquiry by the Rent Controller. The procedure adopted by the Rent Controller for deciding the case of Jamal D?n referred to earlier, was also similar to the one observed in the instant case but the order of ejectment made in Jamal Din's case was not taken exception to by the High Court on the ground that'it was not in consonance with the provisions of subsection (2) of section 13 of the said Ordinance. I am, therefore, unable to accept the contention of learned' counsel for the appellant that the order of the learned Rent Controller in the! Case in hand was not in accordance with the provisions of section 13
12. The upshot of the whole discussion is that the order of ejectment passed against the appellant does not suffer from any legal infirmity. It is, therefore, upheld and the appeal is dismissed with costs. The appellant is, however, allowed four months' time to vacate the shop in dispute.