1. This second appeal is directed against the impugned judgment dated 13th February, 1979 of learned Additional District Judge Karachi, where--by appeal filed against the order of ejectment passed by the 1st Rent Controller has been dismissed.
2. Briefly stated the relevant facts are that respondent landlady filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 for eviction of appellant/tenant from demised premises i.e: Bungalow No. 36-J, Block No. 6, P. E. C. H. Society Karachi on the grounds of default in the payment of monthly rent, requirement of premises in question by the landlady of her personal, bona fide use and also on the ground of subletting. The allegations were denied in the written statement and in view of the pleadings of the parties, two issues were framed, one with regard to default and the other on the question of requirement of premises for personal use. By order dated 20th August, 1978 after assessing the evidence, the learned Rent Controller held that appellant has not committed default but granted ejectment on the ground that premises in dispute were required by the landlady for her personal use and for her family. Appeal filed against this order came to be dis--missed as stated above.
3. I have heard at great length Mr. Iqbal Haider, Advocate for the appellant and Mr. Abdul Sattar Pingar Advocate for the respondent. Both the learned counsel have ably argued their cases and have raised a number of contentions but it will not be necessary to go into them as one important point, which I propose to deal with now, will prove deci--sive. -It is contended by the learned Advocate for the appellant that against the order of ejectment, the present appellant filed appeal, which was decided on merits and dismissed vide impugned judgment, when the appellant was not present, and on this premise it is contended that during the absence of the appellant the appeal should have been dismiss--ed by learned Additional District Judge for non-prosecution and not on merits. This disposal of .Appeal on merits in the absence of appellant has caused him serious prejudice as he has been condemned unheard. It is further urged that had the appeal been dismissed for non-prosecution due to non-appearance of appellant, he would have applied for restora--tion and could have succeeded on showing sufficient cause for default and he has been deprived of this right because of disposal of appeal on merits inspite of the fact that appellant was not present as such the appel--late Court was not empowered to dismiss appeal on merits when there was default of appearance by the appellant. Reliance is placed on M/s. S. M. Abdullah & Sons v. M/s. Pakistan Mercantile Corporation (PLD 1976 Kar. 268). It is held in this reported case that in view of provisions contained in O. XLI, R. 17, read with Rules 11, 19, 2 and 30 of Civil Procedure Code, an appeal filed by an appellant cannot, at the hearing be dismissed for default of appearance by the appellant on merits. The appeal can be disposed of ex parte on merits only when the respondent is absent. In each case defaulting respondent can apply for rehearing of appeal and defaulting appellant can apply for restoration on showing sufficient cause. Final judgment can be passed by the Court after hearing both the parties under O. XLI, R. 30, C. P. C. Whereafter the appellate Court would become functus officio.
4. Mr. Abdul Sattar Pingar advocate for the respondent submitted that the principle of law enunciated in the reported case is not attracted to the present case for the reason that the proceedings in the instant case are governed under West Pakistan Urban Rent Restriction Ordinance, 1959 which bars the application of Civil Procedure Code before the Rent Controller as well as appellate authority. In this context, it would be necessary to examine the relevant provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter to be referred as the Ordi--nance). Controller is defined under section 2 (b), meaning a judicial officer who is appointed by the Provincial Government to perform the functions of a Controller under this Ordinance. There is also no dispute about the fact that the Rent Controller is not a Court within the meaning of Civil Procedure Code, therefore, provisions of Civil Procedure are not applic--able of their force but at the same time there is no bar that he cannot follow the provisions of civil procedure. It is within his discretion. Since no particular procedure is prescribed for the Rent Controller, it is for him to evolve his own procedure, which must not be contrary to the principles of natural justice. Now section 13 (2) of the Ordinance provides that 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 ........
5. The above provision clearly indicates that the Controller has to give the tenant reasonable opportunity of showing cause against the applica--tion, which manifestly includes the right of hearing of tenant and if for any reason proceedings are taken ex parte against the tenant then he can have the ex parte order set aside on showing good cause. It is held in Muhammad Aslam Mirza v. Mst. Khurshid Begum (PLD 1972 Lah. 603) as per majority view that a Rent Controller under West Pakistan Urban Rent Restriction Ordi--nance 1959, can set-aside ex parte order where a tenant shows that he was precluded from attending on the relevant date on account of a sufficient cause.
6. It is further held in that case that to deny the right to person to apply for restoration of a case dismissed in default or for setting aside an ex parte order on the ground that suit has ended and, therefore, the Court has become functus officio, for all purposes is not a correct view. It has been observed in this decision that there always exists an implied and inherent power in every tribunal to set-aside orders passed in default of appearance of the parties. It is not proper to take a different or narrow view as so to hold that Rent Controller has no jurisdiction to recall an ex parte order, where the party concerned can show a formidable cause for non-appearance on the relevant date. A perusal of the Ordinance will show that there is no provision in it any where for dismissing a matter in default or to proceed ex parte. If, therefore, any such recourse is adopt--ed by the Rent Controller, it is obvious that he adopts it by virtue of the inherent power vested in him to choose any procedure he likes. If once he has chosen such a procedure, then to carry the matter to its logical end, he must retain the power to recall or set aside orders passed ex parte or in default.
7. Keeping in view the principles enunciated in the reported decision mentioned above, let us now see as to what are the powers of the appel--late authority, and procedure laid down under the Ordinance for hear--ing appeals. Subsection (i) of section 15 of the Ordinance contemplates that any party aggrieved by an order made by the Controller under sections 4, 10, 12 or 13 may within 30 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 the rented land, in relation to which the order is passed, is situated. Subsection (1-A) further provides that the District Judge himself may hear the appeal or refer it to an Additional District Judge for disposal. Further subsection (1-B) gives powers to the District Judge to recall an appeal from an Additional District Judge for disposal. Both these subsections (1-A) and (1-B) have been added by West Pakistan Ordinance XXI of 1965 which show that appellate authority is no more persona designata. Any way subsection (3) which is more relevant for the present purpose provides that 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 mating such further inquiry as it thinks fit either personally or through the Controller. From the perusal of the provision reproduced above it appears clear that there are two pre-requisite con--ditions for disposal of appeal. Firstly that record from the Controller must be sent for and secondly, that the parties must be heard. This second condition that the parties must be heard is more prominently emphasized than the words used in section 13
(2) which are to the effect that "after giving the tenant, a reasonable opportunity of showing cause against, the application". The intention is manifest that for the hearing of appeal the words used in section 15 (2) are specific and categorical and stated in unequivocal terms "that after giving the parties an opportunity of being heard" which clearly establishes that hearing of both the parties is the quintessence of the procedure of appeal under the Ordinance. Hearing of the appeal is not complete if one party is not heard and the party not heard can apply for hearing on showing good and sufficient cause which precluded him from appearing. The same principles of law laid down in.
8. The reported Lahore Case stated above are applicable with full force to the proceedings in appeal under the Ordinance.
9. "This appeal was fixed on 7th February, 1979 for final hearing. However on this date none appeared on behalf of appellant though repeatedly called. I could have therefore, conveniently dismissed this appeal for non-prosecution but, in order to avoid future litigation in the matter, I prefer to dispose of this appeal on merits. 1 had accordingly beard Mr. Abdul Sattar Pingar Advocate for respondent and I have considered the evidence on the record."
10. On the other hand the order-sheet of the file of the appellate autho--rity shows that on 2nd December, 1978 application was made for adjourn--ment by the advocate for the respondent and the other side had no objec--tion, hence the case was adjourned to 23rd January, 1979. On this date advocate for appellant was absent and the advocate for respondent was present. Presiding Officer was on leave, case was adjourned to 7th Feb--ruary. 1979. On this date the diary reads that appellant and his advocate called absent. Advocate for respondent is present. Put of to 13th February, 1979 for judgment. It may be pointed out that in order-sheet of 7th February 1979 it is not mentioned that appellant and his counsel were repeatedly called and were found absent as is stated in para. Of impugned judgment reproduced above. It may further be pointed out that in the memo. Of appeal on the file of appellate authority it is stated appellant could not produce his evidence before the Rent Controller and only respondent brought her evidence on the record. In such circumst--ances the appellate authority could have extended opportunity to the appellant to be heard in appeal: On the preceding date the Presiding officer was on leave and on the next date, i.e. 7th February, 1979 the advocate for respondent was heard and the Advocate for appellant was found absent and the case was fixed for announcement of judgment on 13th February, 1979. This impugned judgment, which ispassed ex parte on merits in the absence of appellant is violative of the statutory provision as contained in section 15 (2) of the Ordinance and also principles of natural justice as stated above. If the statutory requirement of section 15 (2) could not be complied with and one of the two parties could not be heard for any reason then on equitable grounds and on the principles of natural justice, if the appellant is absent, the appeal in all fairness is to be dismissed for default of appearance and non-prosecution and if the respondent is absent then appeal be decided on merits ex parte but each party is to be conceded a right of rehearing on showing sufficient cause which precluded him from participating in the proceedings. This would meet adequately the requirement of natural justice that nobody should be condemned unheard "audi alleram parlem". There is no dispute about the fact that every tribunal has inherent power to set aside orders passed in 'default of appearance and an application for setting aside ex parte order is competent before the Rent Controller. Reliance is placed again on PLD 1972 Lahore 603.
11. Likewise such application is also competent before the appellate authority under the Ordinance as held by my learned brother Zaffar Hussain Mirza, J. In Abdul Majid v. Ibrahim (PLD 1.979 Kar. 238). It has been observed in this reported case that application for setting aside an ex parte order is competent before the District Judge and the same could not have been dismissed by him on the ground of limitation and Article 164 of Limitation Act is not attracted to sucb application.
12. After the dismissal of appeal on merits during the absence of appellant, by the learned Additional District Judge, an application was made by the appellant under O. XLI, R. 19 read with section 1519, C. P. C. For setting aside the ex parte judgment and this application was dismissed by the learned Additional District Judge vide his order dated 8th May, 1979, which is on the record of that Court. It is observed in the said order that the application for setting aside ex parte order is not maintainable for the reason that appeal has been disposed of on merits and the Court has become functus officio and even if mistake has been committed, the legality of the decision cannot be challenged in the same forum. This view is not correct for the reasons as stated above that the -- appellate authority would become functus officio only when appeal is decided on merits after hearing both the parties as required under the Statute and on principles of equity, till the final decision fulfilling the requirement of law, is given, the tribunal retains seizin of the case and ex parte order can be set aside. Secondly, the view if taken by learned Additional District judge that allowing application for setting aside ex parte order in the present circumstances would amount to review of the judgment, which is not permissible under the law and reliance for that proposition is placed on PLD 1973 Lahore 95. This decision in the reported case is given by a learned Single Judge Aftab Hussain, J. Of Lahore High Court in which it is held that power of review is vested in a Civil Court under section 114 and O. XLVII, R. 1, C. P. C. But there is no corresponding pro--vision in the West Pakistan Urban Rent Restriction Ordinance 1959 empowering any Rent Controller or the appellate authority to review its own orders. The facts in this reported case were that the landlord .Had applied for ejectment of the tenant on the grounds that the premises were required for his personal use and also there was an agreement between the parties to vacate the disputed house. After assessment of evidence and hearing the parties the application for ejectment was rejected, Against this order the landlord filed an appeal, which came to be beard before a learned Additional District Judge, who after hearing the parties dismissed the same. The landlord then filed an application for review before the same learned Additional District Judge, who allowed the same on the ground that application had force as the case was not argued on the relevant lines on behalf of the landlord at the time when the appeal was heard and decided. The points urged before the appellate authority related to service of notice under section 30 of the Displaced Persons Act and adequacy of posts services, which it is not necessary now to go into. In this decision also the case law is discussed at great length and reliance is placed on the Full Bench decision reported in PLD 1972 Lah. 603 and reference is made to the majority judgment written by IC. E. Cbauban, J. (as he then was) holding that on the basis of natural justice and the provisions under section 13 of the Ordinance the Controller can pass an order after giving the tenant a reasonable opportunity of showing cause against the. Application and further that the principles of natural justice will extend .Even to a case where a tenant is precluded by a sufficient cause from appearing before the Rent Controller on the rele--vant date when the ex parte order was passed and in such case the tenant would claim rehearing even in the absence of applicability of Order IX, C.P..C. And the Rent Controller can recall the ex parse order on account of inherent power vested in him to choose any procedure he likes. It is further held by Aftab Hussain, J. In his .Decision that the question whether Rent Controller can review his orders otherwise than by setting aside an ex parte order was not considered in the Full Bench case. The learned Single Judge made references to a number of other authorities in support of his conclusion that the Additional District Judge had no jurisdiction to review his own order passed by him in appeal. In that case order in appeal was passed after hearing both parties and was final. In the instant case the facts are different and in appeal the party was not heard E and application for setting aside an ex parse order in the appeal disposed of on merits in the absence of appellant does not amount to review. As has been incorrectly assumed by the learned Additional District Judge in his order.
13. There is one other angle for consideration of this point, which is to the effect that apart from the requirement under section 15 (3) of the said Ordinance making it mandatory for the appellate authority to give the parties an opportunity of being heard, as stated above, there is explana--tion after subsection (4) which clearly provides that an appeal under this subsection shall be heard and determined as an appeal from an original decree under section 96 of the Code-of Civil Procedure, if it is from an order of Controller and as an appeal from the appellate order under section 103 of the Code, if it is from an order of the appellate authority and the provisions of Part VII and of the First Schedule to the said Code relating to appeal shall with such modifications as .The context may require, apply to such proceedings. It is, therefore, clear that the appel--late authority under the Ordinance hears the appeal from the order of the Rent Controller as the first appeal as provided under section 96 of the Civil Procedure Code and same powers of the appellate Court, as are provided there, can be exercised by the appellate authority. Further more Part VII of the Civil Procedure Code which relates to appeals from the original decrees and appeals from the appellate decrees apply with full force. It is further provided in the explanation that First Schedule to the said Code shall also apply. First Schedule to the Code covers the procedure relating to the suits and appeals and includes O. XLI, C. P. C.
14. R. 17 (1) of this Order provides that when on the date fixed for hear--ing and the appellant does not appeal, the appeal is to be dismissed for default. Sub-rule (2) of rule 17 further provides that where the appel--lant appears and the respondent does not appear, the appeal shall be heard ex parte.
15. Rule 19 of the same Order provides for readmission of appeal dismissed for default, Rule 21 of this Order provides for rehear--ing on application of respondent against whom ex parte decree has been made. For these reasons the appellate authority should have followed this procedure as stated above and should not have resorted to dismiss--ing the appeal on merits when the appellant was absent. The procedure described above had to be followed by the appellate authority as is expressly provided under section 15 of the said Ordinance as stated above.
16. Lastly it may be pointed out that perusal of the order-sheet of the record of appellate authority shows that on 2nd December, 1978 the appeal was fixed for hearing when an application was moved by the advocate for the respondent for adjournment and the other side raised no objection hence the hearing was adjourned to 23rd January, 1979. On 23rd January, 1979 the order-sheet shows that appellant and his advocate were called absent and advocate for the respondent was present. Presiding Officer was on leave and the case was adjourned to 7th February, 1979 for hearing. This order is not signed by-the Presiding Officer obviously for the reason that he was on leave. It is also not signed by Link Officer. It is in fact not signed by anybody. The First Schedule to the Code of Civil Procedure, which has been made applicable to the proceedings before the appellate authority under the Ordinance includes O. XVII, C. P. C. R. 5 of this Order, which has been added by Ordinance XII of 1972 provides that when on any day the Presiding Officer of the Court is absent by reason of illness or any other cause, the parties to the suit or proceedings set down for that day shall appear' in the Court in the Court-house on that day and the Ministerial Officer of the Court authorised in that behalf shall hand over to the parties slips of papers specifying the other date fixed for proceeding with the suit and signed by him. It appears from this newly added provision that in such case when the Presiding Officer is absent the date can be given by the Ministerial Officer and the parties are supposed to attend the court on the date 'when the Presiding Officer is absent if that date is given by the Court. The order-sheet of this particu--lar date i.e. 23rd January, 1979 can be assailed on three grounds, firstly, that it has not been signed even by the Ministral Officer, secondly, it cannot be ascertained whether the person who has written this order was authorised in that behalf by the Court and thirdly, that when the proceedings were adjourned the time is also noted under the date as 9.55 a. m. It is not very clear whether the Ministerial Officer was sitting in the Court for the whole day till the court time was over or after noting the time of ad-- journments as has been done in the instant case, he had gone away. In these circumstances I feel disinclined to accept the proposition that on this date i. e. 23rd January, 1979 the case was validly adjourned. In any case on the next date, i. e. 7th February, 1979 which was given by the Ministerial Officer as stated above, the Presiding Officer heard the advocate for respondent while the appellant and his advocate were absent and put of the case for ex parte judgment.