1. ' B. G. N. KAZI, J.-The petitioner who is tenant of House No, 123 (S. No, 41/43) on Gul Baz Road, Cantonments Hyderabad, in MC instant petition, seeks to challenge the following orders as illegal and ultra vires:-
(1) Order dated 10th July, 1969 of the Controller of Rents Cantonment Area Hyderabad ordering him to hand over vacant possession of the said house to owner applicant who had filed application for ejection under section 17 (2) (1) of the Cantonments Rent Restriction Act, 1963 (hereinafter referred to as the Act).
(2) Order of the Rent Controller dismissing his application under Order IX, rule 13, C. P. C. Dated 9-8- 1969.
(3) Order of the Additional District Judge Hyderabad on his appeal dismissing it, and
(4) The order of the District Judge Hyderabad dated 20-9.1972 dismissing the appeal after remand.
2. ' The facts briefly stated are as under :- ' The respondents (including the predecessor in interest of L. Rs, now brought on record filed application under section 17 of the Act against the petitioner in respect of the house in question which he had taken on rent of Rs, 50 per month from 1st July, 1965 and had executed a rent deed dated 17-6-1965 in favour of deceased Agha Noor Ahmed, on the ground that he was a persistent defaulter who had compromised a previous rent application on 13-9-1966 assuring that he would be regular in the payment of rent, but had again committed default after October, 1967. The petitioner was served with notice and, although it is his case, as made out in the petition that he was attending the Court of the Rent Controller on every hearing, on 10th July, 1969 the learned Rent Controller passed the order that he should give vacant possession to the applicants. The order mentioned that the opponent (petitioner herein) although served with notice, had not filed any objections and had besides remained absent on two consecutive dates of hearing. The learned Rent Controller also mentioned in the impugned order that the applicants (respondent herein) had recorded their statements and filed compromise order previously passed along with affidavit. The petitioner then fi!Ed application under Order IX, rule 13, C. P. C. Affirming that he was present on all hearings. The learned Controller by short order dismissed the application on 9-9-1969.
3. ' The petitioner filed an appeal against the aforesaid order of the Rent Controller rejecting the application under Order IX, rule 13, C.P.C. For setting aside ex parte order before the District Judge Hyderabad under section 24 of the Act which was incidentally dismissed by the Ilnd Additional District Judge, Hyderabad to whom it had been transferred for disposal by the District Judge. The appeal was dismissed on 18-4-1970 and petitioner filed Constitutional Petition No, 287 of 1970 in this Court on the ground inter alia that the Additional District Judge had no jurisdiction to decide the appeal. The petition was allowed by the High Court on 14-4-1971 and the appeal was remanded, to be treated as pending and to be heard by the District Judge, Hyderabad. The appeal was heard and dismissed by the District Judge, Hyderabad on 20-9-1972.
4. ' Mr. Abdul Fateh Memon, the learned Advocate for the petitioner has contended that since the petitioner was not initially heard by the learned Rent Controller and further since due to that fact his case only with regard to his right for setting aside the ex parte order alone was considered, in the appeal before the learned District Judge, Hyderabad, there was no point in filing second appeal, and the only legal remedy was to seek quashment of the impugned orders by filing the instant petition.
5. ' The main contentions on behalf of the petitioner are as under :-
(1) that the order of the learned Rent Controller allowing the application of the respondents under section 17 of the Act is illegal, ultra vires and inoperative in law as it is in contravention of the mandatory provision of section 27 of the Act.
(2) that the order of the learned District Judge too is illegal in that he considered the application of the petitioner for setting aside the ex parte order of eviction as an application for review and did not give any finding as to whether appeal lay against the ex parte order.
(3) That the impugned order of the District Judge, Hyderabad does not show that he applied his mind to the allegation that the orders passed by the learned Rent Controller was mala fide due to his relation with the family of late Mr. Noor Mohomed who was legal adviser of his father who was Vice Chairman of the Cantonment Board.
6. ' With regard to contention No, 1 it is evident from the impugned order dated 10th July, 1969 of the learned Rent Controller that the petitioner was served with notice of the proceedings in relation to the appliction filed by the owners under section 17 (2) (0 of the Act. The order as already stated mentioned that notice was served on the petitioner but he failed to file objection and for two consecutive hearings before 10th July, 1969 he had not attended the Court. There is no cavil with regard to the service of notice on the petitioner and about the fact that he had knowledge about the proceedings; it is on the contrary the case of the petitioner that he was, attending all the hearings and that even on the date the impugned order was passed he was present but he was not called by the Rent Controller and was not given an opportunity of being heard. If the version of the petitioner that he was present on the day that the impugned order was passed is accepted, it cannot be said that there was occasion for him to file application for setting aside the ex parte Order under Order IX, rule .13, C. P. C.
7. ' The order of the learned Rent Controller however explicitly mentions that he did not file objection nor did he attend the Court "Since two hearings". The learned District Judge Hyderabad in his judgment in appeal has also given a finding. Obviously based on the record of the Rent Controller that the petitioner was duly served with notice but he did not file any objections nor did he attend the Court on the two subsequent hearings. Thus there is concurrent finding of fact by the lower Courts that the notice was duly served upon the petitioner who failed to file objections and to attend the Court of the Rent Controller., ' If the aforesaid concurrent finding of fact by the Tribunals is accepted the contention that there was contravention of section 27 of the Act cannot be accepted. The aforesaid section provides that no order inter alia under section 17 shall be made by the Controller except after holding an enquiry.
8. The Act does not provide for procedure in which the enquiry is to be made by the Controller In Mohomed Ashraf and 6 others v. Muhammad Abdullah Khan (1) the fact that the tenants were personally served with notice but did not enter appearance on the date fixed was considered to give the power to the Rent Controller to decide the matter and although the Rent Controller did not make a formal order proceeding ex parte against them, it was considered an omission of no consequence.
9. With regard to contention No, 2 it is apparent that since even-according to the petitioner himself he was present on the date that the impugned order was passed there could be no question of showing reasonable cause for his absence, the only contention being that although B he was present he was not given opportunity of being beard. The learned District Judge was right in presuming that the application before the Rent Controller was one for review of the order.
10. ' In any case, although it appears that there is some difference of opinion on the point whether once any ex parte order is passed, the Controller can set aside such order and take up the case for rehearing, whatever the view adopted in the instant case would not make' any difference in the decision. The aforementioned difference of opinion was laid to rest by a Full Bench of the Lahore High Court in Muhammad Aslam Mirza v. Mst. Khurshid Begum (2). In that decision, where order for ejectment of tenant was passed by Controller ex parte for default in appearance of tenant the question was whether Controller has power and can set aside ex parte order or can refuse to do so on ground that C. P. C. Being not applicable and there being no provision for the purpose in the Ordinance, finality attaches to such order and Controller becomes fuctus officio for all purpose after order passed. It was (per majority) held , that Controller can set aside an ex parte brder where party could show that it was precluded from making appearance On relevant date on account of sufficient cause. K. E. Chauhan, J. (as he then was) observed as under :- "My study of the above case-law, however, gives me an impression that where, for example, a defendant had no notice of the date of hearing or where he prayed for an adjournment which was refused and he was proceeded ex parte or where the record of the trial Court can itself show that there was no justification to proceed ex parte against the defendant or that there has been coercion, defect or irregularity in the matter of proceeding ex parte against him, or in the procedure of the trial in that behalf there a defendant can always raise all these points in the appeal, but in cases where this is not the situation, there the defendant/appellant will be in a great disadvantageous position, because the Court of Appeal will not be in possession of the material which prevented his appearance. In these cases, such grounds will not be available for being taken in appeal either. What then is to be
(1) PLD 1981 tab.
31. (2) PLD 1972 Lah. 603 ' done ? The only reasonable view, therefore, is to hold that the defendant will have a right to approach the original Court to claim an opportunity to show cause for his absence and demand a retrial of the matter.
11. ' The case of the petitioner is fully covered by the aforesaid obseivations in that it is stressed by Mr. Abdul Fateh Memon, the learned counsel for the petitioner not having been enabled to make his defence before the Controller, although he could take the point with regard to the order being passed ex parte before the Appellate. Court, he could not hope to get proper relief on the merits.
12. Whatever be the weight of such an argument, for reasons already given, the petitioner did have an opportunity and the Controller while providing that opportunity having acted on the evidence before him could be said to have made the circler after holding an enquiry. In the instant case, there was no question of showing cause for his absence, inasmuch as it is asserted by the petitioner that in fact he was present. The allegation on the part of the petitioner can, therefore, be considered only as that of mala fides.
13. ' It is well-settled legal position that plea of mala fides is to be specifically pleaded and affirmatively proved as fact and proof of mala fides, only of the kind, pleaded is allowed to be adduced. Further, the onus to prove an act to be mala fide lies on the person alleging the same, malo fides is also to be pleaded with particularity and cannot be proved by vague allegation.
14. ' From the impugned order of the learned Rent Controller dated 10th July, 1969, it is apparent that even if he was present in the Court or outside it he did not make application by way of allegation that he was being debarred from putting in his defence. Again from the impugned judgment of the learned District Judge, Hyderabad, it is apparent that even in the appellate Court the plea of mala fides was not specifically taken or pleaded. The appellate . Judgment, however, contains the observation that the petitioner contended that he was actually present in Court on 10.7-1969 when the said order was passed and by mistake he was shown asabsent when he was actually present.
15. If any specific allegation with regard to mala fides had even at that stage been made there would have been reference to the same in the appellate judgment. However, there are indications that the specific allegation, namely, that the learned Rent Controller had passed the order as Mr. Noor Mohomed, ancestor of opponents 3 to 7, was legal advisor and his father was Vice. Chairman of the Hyderabad Cantonment Board, were taken for the first time in the instant petition which was presented in this Court. In the original memo. Of petition the words "Due to his relationship with the opponents' family, late Mr. Noor Mohomed was legal advisor and his father was Vice President of the Cantonment" were added in handwriting with ink and similar words were added as paragraph 12-A in the affidavit filed in support of the petition, the only difference being that where as in the petition father of late Mr. Nbor Mohomed is stated to have been the Vice President of the Cantonment Board in the affidavit, it has been .Stated that he was Vice- Chairman of the Cantonment Board. Pausing with the specific reason of mala fides having presumably been supplied as an afterthought, it may here be further observed that since Mr. Agha Nur Ahmed and his father having died long before the impugned order was passed, and the further fact the Rent Controller, Cantonment is a public functionary liable to transfer, it is indeed a far fetched allegation of mala fides. Since there is nothing on record to show that the aforesaid specific allegation was made before the learned Rent Controller or in appeal before the learned District Judge Hyderabad, the plea of mala fides cannot be considered at the present stage.
16. ' Under the circumstances, it is apparent that no illegality on the part of the learned Rent Controller or the learned District Judge Hyderabad has been pointed out which can justify the intervention of this Court in exercise of constitutional authority. There is no weight in this petition which is accordingly dismissed with, however, no order as to costs.
17. ' NAIMUDDIN, ACTG. C J .-I agree.