This constitutional petition has arisen out of an ejectment application filed by respondent No. 3, Siraj Din, hereinafter referred to as the respon--dent, against one Sahib Dad Khan. The application was accepted by the Additional Rent Controller, Lahore Cantonment. His order was challenged by Sahib Dad Khan by filing an appeal. On 9th September 1980, however, the appeal was dismissed in default. It appears that after the dismissal of the appeal, Sahib Dad Khan had died and, therefore, his legal representatives, Muhammad Adalat Khan and others, hereinafter referred to as the petitioners, invoked the constitutional jurisdiction of this Court to challenge the order of the learned appellate authority.
2. One of the contentions raised in this petition was that the learned Additional Rent Controller had no jurisdiction to hear the ejectment applica--tion. At the stage of arguments, however, the said plea was given up bylearned counsel for the petitioners. It is, therefore, disposed of as having not been pressed.
3. The appeal was dismissed by an Additional District Judge of Lahore. It was argued by learned counsel for the petitioners that the learned Additional District Judge was not competent to hear the appeal because it was filed before the District Judge, Lahore, and, therefore, only the learned District Judge had the jurisdiction to hear the appeal. According to him, the learned District Judge could not entrust the appeal to the learned Additional District Judge for disposal. Similar plea was raised in Muhammad Umar v. Mst. Fatima Begum and 2 others (1), but was repelled by me. Nothing has been placed before me by learned counsel for the petitioners to enable me to take a different view in the instant case. I, therefore, reiterate the opinion expressed in the case of Muhammad Umar and hold that the learned Additional District Judge could hear and decide the appeal.
4. Another submission made by learned counsel for the petitioners was that the original record, which was summoned for 9th September, 1980, had not been received and, therefore, it was not a date of hearing of the appeal and as such the appeal could not be dismissed in default on the said date. For this proposition, he placed reliance on Messrs Ghulam Farid Muhammad Latif and others v. The Central Bank of India, Limited Lahore (2), Sh. Ghulam Mujtaba and others v. Noor Muhammad Khan (3), Rahim Bux and another v. Gul Muhammad and 2 others (4) and Manager, Jammu & Kashmir, State Property in Pakistan v. Khuda Yar and another (5).
5. In reply, it was urged by learned counsel for the respondent that the provisions of the Code of Civil Procedure did not apply to ejectment proceedings or the appeals arising out of those proceedings and, therefore, the authorities cited by the learned counsel were of no avail to him. In this connection, he invited my attention to Khadim Mohy-ud-Din and another v. Ch. Rehmat All Nagra and another (6). It was also maintained by him that the date on which the appeal was dismissed was the date of hearing of the appeal because notice thereof had been issued to the respondent.
6. The law governing the case in hand is contained in the Cantonments Rent Restriction Act, 1963, hereinafter referred to as the said Act. Provisions relating to appeal are embodied in section 24 of the- said Act, which reads as follows :- "24. Appeal.-(1) The Central Government may, for purposes of this Ordinance by a general or special order, notified in the Official Gazette, confer on a District Judge or an Additional District Judge, hereinafter referred to as appellate Court, the powers of an appellate Court, under the Code of Civil Procedure, 1908 in respect of a cantonment or cantonments as may be specified in the order.
(2) Any party aggrieved by an order passed by the Controller, may, within fifteen days following the date of such order, prefer an appeal to the appellate Court.
(1) PLD 1982 Lab. 47 (2) PLD 1954 Lab. 575
(3) PLD 1964 B J 8 (4) PLD 1971 Lab. 746
(5) P IL D 1975 SC 678 (6) PLD 1965 SC 459
(3) Subject to the provisions of this Act, an appeal under this section shall be heard and determined as an appeal from an original decree under section 96 of the Code of Civil Procedure, 1908 (Act V of 190&), and the provisions of Part VII and Order XLI of the First Schedule to the said Code shall, apply to such appeals Provided that the appellate Court may where it considers necessary make further inquiry either personally or otherwise, before determining the appeal.
(4) The decision of the appellate Court shall be final.
(5) No order of the Controller except by an appeal under this section, and no order of the appellate Court made under this Act shall be called in question in any Court by any suit, appeal or other legal proceedings."
In view of these provisions, the learned Additional District Judge was required to hear and determine the appeal preferred by the predecessor-in-interest of the petitioners by following the procedure laid in Order XLI of the First Schedule to the Code of Civil Procedure. Rule 17 of the Order XLI deals with the dismissal of appeals in default. That rule is to the following effect :- "17. Dismissal of appeal for appellant's default.-(1) Whether on the; day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.
(2) Hearing appeal ex parte.-Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte."
It is, therefore, evident from rule 17 that an appeal can be dismissed in default only when it is called on for hearing but the appellant is absent. This means that an appeal can be dismissed in default, only on the date fixed for its hearing and not on any other date. There is nothing in the said Act authorising the appellate authority to dismiss the appeal in default on a date other than the date of hearing. It would, therefore, follow that the learned Additional District Judge had jurisdiction to dismiss the appeal in default on 9th September, 1980, if the said date was the date of hearing of the appeal, but if the position was otherwise, he had no authority to dismiss the appeal on the above date.
7. As for the case of Khadim Mohy-ud-Din and another, cited by learned counsel for the respondent, it was ruled in that case that a Rent Controller is not a Court nor the District Judge or the Additional District Judge hearing an appeal against his order exercises his authority as Presiding Officer of the Principal Court in the District. It was also laid down in that case that the Rent Controller is not bound to follow the procedure contained in the Code of Civil Procedure. These observations were made by the Supreme Court in relation to the cited case which was under the Punjab Urban Rent Restriction Ordinance, 1959, hereinafter referred to as the said Ordinance.
Provisions contained in .The said Ordinance in respect of the appeal are quite different from those appearing in the said Act. As against section 24 of the Act, which has been reproduced above, the provisions of section 15 of the said Ordinance, relating to appeal, are as follows :- "15. Appeal.-(1) Any party aggrieved by an order of the Controller finally disposing of an application made under this Ordinance may, within thirty days of the date of such order, prefer an appeal in writing to the District Judge having Jurisdiction over the area where the building or rented land in relation to which the order is passed, is Provided that no appeal shall lie against an order made by a Controller under subsection (6) of section 13 determining approximately the amount of rent due or the rate of rent and directing the tenant to deposit all the rent due Provided further that no appeal shall lie from an interlocutory order passed by the Controller.
(2) On such appeal being preferred, the District Judge may hear it himself or refer it for disposal to an Additional District Judge having jurisdiction over the area where the building or rented land in relation to which the order is passed, is situated.
(3) The District Judge may recall an, appeal made over by him to an Additional District Judge and either hear it himself or refer it for disposal to another Additional District Judge having jurisdiction as provided in subsection (2).
(4) On such appeal being preferred. The appellate authority may stay the operation of the order appealed against.
(5) The appellate authority admitting an appeal for hearing shall have the same powers to direct the tenant to deposit the rent as are vested in the Controller under this Ordinance and, if the tenant makes default in compliance with such an order, then, if he is the appellant, his appeal shall be dismissed summarily and, if he is the respondent, his defence shall be struck off.
(6) The appellate authority shall decide the appeal after sending for the record of the case from the Controller and after giving the parties an opportunity of being heard and, if necessary, after making such further inquiry as it thinks fit, either personally or, through the Controller.
(7) The order of the Controller, subject to the result of appeal, if any, shall be final and shall not be called in question in any Court of law, including the High Court by suit, appeal or otherwise.
(8) The provision of subsection (7) shall apply to every application under the Ordinance irrespective of whether it was filed before or after, the commencement of the Punjab Urban Rent Restriction (Amendment) Ordinance, 1979 (IX of 1979) and all appeals filed in the -High Court from the orders of the District Judge or the Additional District Judge passed after the said commencement, shall stand abated; Provided that this provision shall not be deemed to invalidate the judgments already delivered by the High Court in any such appeals."
It would, therefore, be seen that whereas an appellate authority under they said Act is required to hear and determine an appeal as an appeal from an original decree under section 96 of the Code of Civil Procedure, 1908 (Act 5 of 1908) and according to the provisions of Order VII and Order XLI of the First Schedule of the said Code, the appellate authority under the said Ordinance is not obliged to do so. On the basis of observations made in the case of Khadim Mohy-ud-Din and another, therefore, it cannot be said that the appellate authority under the said Act is not required to follow the procedure set out in Order XLI of the Code of Civil Procedure. In this view of the matter, the case relied upon by learned counsel for the respondent is of no help to him.
8. It has already been found that in the instant case the learned Additional District Judge could dismiss the appeal in default on 9 September 1980 if that date was the date of hearing of the appeal. While adjourning the appeal to the said date, the learned Additional District Judge had passed the following order on 9th July, 1980 :-- "Contends that the impugned order of the learned Rent Controller is based on mere conjectures and surmises and is against all principles of law.
Notice and record for 9-9-1980. Operation of the impugned order is suspended till then.
The appellant is directed to deposit arrears of rent @Rs. 300 p .m. Within two weeks from today and to continue depositing further monthly rent @ Rs. 300 before the 15th of each month."
It is, therefore, plain that the appeal could be heard on 9th September, 1980, if the record had been received by that date. There is a report by the learned Additional District Judge to the effect that the record had not been received by the time the appeal was dismissed in default. In the case of Manager, Jammu & Kashmir, State Property in Pakistan, relied upon by learned counsel for the petitioners, it was ruled by the Supreme Court that the "expression `called on for hearing' as used in Order XLI, rule 17 obviously presumes the completion of all earlier steps envisaged by rules 11 to 16 of Order XLI". The record is to be made available to the appellate Court in pursuance of the provisions of rule 13 of Order XLI. This means that the step envisaged by rule 13 had not been completed by 9th September, 1980 and, therefore, the said date was not the date of hearing of the appeal.
9. - It has been ruled in the cases of Messrs Ghulam Farid Muhammad Latif and others, Manager, Jammu & Kashmir, State Property In Pakistan, Sh. Ghulam Mujtaba and others, and Rahim Bux and another, cited by learned counsel for the petitioners, that if a suit is dismissed in default on a date other than a date of hearing, the order is void ab initio and without jurisdic--tion. It is a nullity in the eye of law. Since the appeal filed by the predecessor-in-interest of the petitioners was dismissed on 9th September 1980, which was not a date of its hearing, the order of its dismissal was also without lawful authority.
10. In this view of the matter, I accept this writ petition and set aside the order of the learned Additional District Judge by which the petitioners' appeal was dismissed in default. The learned Additional District Judge shall now hear the appeal and decide it afresh in the light of the above observations and according to law. The parties shall appear before him on 12th April, 1982. There shall be no order as to costs.