This writ petition is directed against an Order of eviction passed against the petitioner, Muhammad Sharif, in consequence of an application made by respondent No. 1, Muhammad Hussain, hereinafter referred to as the respondent. It was an ex parte Order made by a Rent Controller which was affirmed by an Additional District Judge, in appeal. Feeling aggrieved by their Orders, the petitioner has filed this Constitutional petition.
2. It was urged by learned counsel for the petitioner that the petitioner had no intimation of the date on which he was proceeded against ex parse and, therefore, the Order passed against him was without lawful authority.
3. In reply, it was submitted by learned counsel for the respondent that before ex parte proceedings were Ordered against the petitioner notices were issued to him but he had evaded service. According to him, a telegram was also sent to him, but he had refused to receive the same.
He was therefore, of the view that there was nothing wrong with the ex pare proceedings Ordered by the learned Rent Controller.
4, Ex parte proceedings were Ordered against the petitioner on 12 December, 1978. Admittedly, no notice was issued to the petitioner for the said date. It is not the case of the respondent that the petitioner had appeared before the learned Rent Controller on some earlier date and that he wasth directed to re-appear before him on 12th December 1978. Before 12 December, 1978, it was on 5th December, 1978, that the case had come up before the learned Rent Controller and it was directed by him that notice shall issue to the petitioner for 10th December 1978 on the deposit of process fee by the respondent. No process fee was, however, deposited by him and, therefore, notice was not issued for 10th December 1978 either. 10 December 1978 was declared as holiday and, therefore, the case was adjourned to 12th December, 1978 when the petitioner was proceeded against ex parte As noted above, no notice was issued to the petitioner for 12th December, 1978 It is, therefore, evident that the petitioner had no intimation of the said -date, that is, 12th December, 1978 and, therefore, ex parte proceedings could not be Ordered against him.
5. As for the argument of learned counsel for the respondent that or the notices issued to the petitioner for earlier dates it had been reported that he was evading service and that he bad declined to receive the telegram sent to him, if the learned Rent Controller bad thought that the sail evasion or refusal of the petitioner amounted to his service he ought to have Ordered ex parte proceedings against him on the day in respect of which there was evasion of service on the part of the petitioner or on the day for which the telegram was sent. Since that was not done, the reports of evasion and refusal in regard to the dates earlier than the 12th December, 1978 could no be made use of for Ordering ex parte proceedings against the petitioner on 12th December, 1978 for which date no intimation was given to him in any manner.
6. In view of what has been said above, I hold that the learned Rent Controller had no jurisdiction to Order ex parte proceedings against the petitioner on 12th December 1978 and, therefore, the ex parte Order of eviction passed against him is without lawful authority. I, therefore, accept this petition, set aside the Orders of the two Tribunals blow and direct that the ejectment application shall be heard and decided afresh, by the learned Rent Controller, in the light of above observations and according to law. There shall be no Order as to the costs.