1. This appeal under section 2(2) of the Military Court (Validation of Orders) Ordinance, 1980, has been filed by the appellant/tenant against the orders of Summary Military Court dated 25th of September, 1977, and the order of Martial Law Administrator Zone `C' dated 29-11-1977 passed under the provisions of M. L. O. 20 directing the ejectment of appellant from the premises in his occupation. The facts leading to the appeal are as follows: The respondent/landlady who is a widow applied to Martial Law Administrator Zone `C' under paragraph 2, sub-paragraph (b) of M. L. O. 20 for eviction of the appellant from House No. IV-F-5/7, Nazimabad, Karachi on the ground of personal and bona fide requirement. This application of res- -pondent according to the endorsement was received in the office of M. L. A. Zone `C' on 21-9-1977 and was. Forwarded to Summary Military Court No. D. The Summary Military Court No. D, issued notice to the appellant for appearance on 25-9-1977 at 9.00 a. m. And it appears that on the same day after hearing the parties it ordered eviction of the appellant from the premises and directed him to had over possession by 13-10-1977. The appellant immediately presented a revision application in terms of para--graph f3 of M. L. O. 20 to the Martial Law Administrator, Zone `C' against the above order. Simultaneously the petitioner also challenged the order of Summary Military Court No. D dated 25-9-1977 in Constitutional Petition No. 624/1977 which was admitted to regular hearing. While the above Constitution Petition was still pending; the order passed by the Summary Military Court on 25-9-1977 was set aside by the revisional authority on the revision petition which was filed by the appellant against that order. This fact was communicated to the appellant by Letter No. 146/6/ML/JAG dated 12-10-1977 and after receipt of this letter the petitioner withdrew his Petition No. 624/77 from this Court which was dismissed as withdrawn on 1-12-1977.
2. The order communicated to the appel--lant vide letter dated 12-I0-1977 setting aside the order of Summary Military Court dated 20-9-1977 was admittedly an ex parte order as neither the appellant nor respondent were aware of the same. However, it appears that respondent having come to know of the order dated 12-10-1977 made representation to the M. L. A. Zone 'C' pointing out that the said order was passed without hearing her and accordingly the M. L. A. Zone 'C' on reconsideration of the matter withdrew the order dated 12-10-1977 with the result the order dated 25-9-1977 stood revived. The withdrawal/ cancellation of the order dated 12-10-1977 was communicated to the appellant by Letter No. 146/l2/ML/A dated 29-11-1977. The appellant in these circumstances presented another Constitutional Petition No. 926/77 to this Court on 24-12-1977 challenging the order dated 25-9-1971 passed by Summary Military Court and the order dated 29-11-1977 of the Martial Law Administrator, Zone 'C'. This latter petition was also admitted by this Court to regular hearing and while it was still pending Military Courts (Validation of Orders) Ordinance, 1980 (Ordinance 5 of 1980) was promulgated on 19-1-1980. Subsection (1) of section 2 of Ordinance 1 of 1980 validated all orders passed on or after 16th day of August, 1977, under Martial Law Order No. 20 and an aggrieved person was given a right of appeal against such an order under subsection (2) of section 2 of the Ordinance to this Court. The appellant accordingly withdrew the Constitutional Petition No. 926/77 and filed the present appeal against the order dated 25-9-1977, and 29-11-1977 passed by Summary Military Court and Martial Law Adminis--trator Zone 'C' respectively.
3. I have heard Mr. Zia Pervez and Mr. Hassan A. Shaikh, the learned counsel for the appellant and respondent respectively in this appeal.
4. On 20th of August, 1981, while I was hearing this appeal after having heard it partly on 17-8-1981 Mr. Zia Pervez, the learned counsel for the appellant mainly urged before me that the order dated 25- 9-1977 passed by the Summary Military Court was an oral order and it did not give any reason. It was also contended that the appellant was not supplied copy of the order at any time. After hearing Mr. Zia Pervez, I passed the following order on that date: "Mr. Zia Pervez, M. Hassan A. Shaikh.
5. After I have heard further arguments it became obvious that the main ground of attack is that no order giving reason was passed. By "Summary Military Court" I will, therefore, like to see the record of proceedings before Summary Military Court, Call for R. & P. Hearing is adjourned to 27-8-1981."
6. In pursuance of my above order the R & P was called for from Summary Military Court No. D, relating to the case of respondent and on the adjourned dote of hearing I pointed out to the learned counsel for the appellant that the order passed by Summary Military Court No. D was not only a reasoned order but was also written one. The learned counsel then raised the following contentions before me:
(1) That the proceedings before the Summary Military Court were incompetent as before filing the application before the Summary Military Court, the respondent had already instituted a regular rent case under the provisions of Sind Urban Rent Restriction Ordinance, 1959, which was pending and, therefore, the jurisdiction of Summary Military Court was barred under M. L. O. 20.
(2) That the proceedings before Summary Military Court were held in violation of principles of natural justice as neither the appellant was given any opportunity of being heard nor any evidence way recorded in the Case.
(3) That the order passed by the Summary Military Court did not disclose any reasons for granting the application of the respondent.
7. Elaborating his first contention Mr. Zia Pervez, contend that prior to the filing of the application before the Summary Military Court under M. L. O. 20 she respondent had instituted Rent Case No. 1734/76 on 12-4-1976 before the Second Rent Controller, Karachi, which was pending. It is accordingly contended by the learned counsel that in view of the pendency of rent case before the Rent Controller, under paragraph 9 of M. L. O. 20 the Summary Military Court had no jurisdiction to entertain the application of respondent under M. L. O.
20. The admitted position in the case is that at the time application for ejectment under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, was filed by the respondent M. L. O. 20 was not in the field. M. L. O. 20 came into effect in or about 21st of August, 1977, and by virtue of its paragraph 2 certain specified class of persons who were given right to file application against their tenant on specified grounds under this provision of law. It is not disputed that the case of respondent was covered under sub- paragraph (b) of Paragraph 2 of M. L. O. 20 as she was a widow and required the premises in occupation of the appellant for her own use. The documents on the record do show that before filing the application before the Summary Military Court the appellant had filed an application before the IInd Rent Controller, Karachi, being Rent Case No. 1734/76 in April, 1976, which was pending but before presenting the application under M. L. O. 20, the respondent withdrew her case before the Rent Controller and the prayer for withdrawal of rent case was allowed by the Rent Controller on payment of Rs. 50 as cost to appellant. It is, therefore, not correct to argue that at the time the respondent filed the application before the Summary, Military Court the rent case was pending before the IInd Rent Controller, Karachi. Apart from it in my view paragraph 9 of M. L. O. 20 did not bar the jurisdiction of the Summary Military Court to entertain a case under M. L. O. 20 if the case was pending before the Rent Controller or the superior Court. It only saved the pending proceedings before the Rent Controller and the superior Court from the effect of M. L. O. 20.
8. Paragraph 9 of -M: L. O. 20 is a. Follows:- "9. This order will have no effect on the matters already pending in the Courts Rent Controller and the superior Court."
9. It is not necessary to examine in this case any further the effect of paragraph 9 of M. L. O. 20 as no proceedings were pending before Rent Controller when application under paragraph 2(b) of M. L.
10. O. 20 was filed by the respondent before the Summary Military Court and the matter was taken up for hearing on 25-9-1977.
11. The next contention of the learned counsel for the appellant is that no proper opportunity to defend the case was afforded to the appellant by the Summary Military Court before passing the order and no reasons were given by the Court for passing the order of eviction. A perusal of the revi--sion application submitted by the appellant before the Martial Law Adminis--trator Zone 'C' against the order of eviction passed by the Summary Military Court on 25-9-1977 shows that no such ground was raised in the memo. Of revision and on the contrary in paragraph (k) of the revision it was admitted that the Summary Military Court passed the order after hearing the parties. It will be quite useful to reproduce here in extenso the appeal/revision filed before the Martial Law Administrator Zone 'C' by the appellant against the order of Summary Military Court in order to understand the objections urged by the appellant against the order dated 25-9-1977. It is as follows :- "Sir, I most humbly beg to appeal against the decision announced by the Hon'ble Summary Military Court 'D' on 25th September, 1977, in the above--mentioned case and request you to, kindly review the same in the light of the following facts:-
(a) The above case had been accepted by the Hon'ble Summary Military Court in contravention of clause 9 of H. Q. Martial Law Administra--tion Zone 'C' Martial Law Order No. 20 dated 16-8-1977 because the petitioner Mst. Nurin Nisa Mirza had already filed a Civil Suit R. C. No. 1734/76 against the Defendant in the Court II Rent Controller, Karachi on 12th April, 1975-Photostat enclosed as Annexure I of this appeal.
(b) The first hearing of the above Civil Suit 1735/76 was held on 12th May, 1976, according to the Court's Notice dated 23rd April, 1976--photostat enclosed as Annexure II of this Appeal.
(c) Subsequent hearings were held on various dates since then, for the production of documentary with regard to the payments of monthly rent, etc.
(d) On 20th March, 1977, the Hon'ble Court II Rent Controller, Karachi passed a tentative order, with the consent of both the parties, that the Defendant should clear the accumulated rent (which was not accepted by the petitioner as heretofore for mala fide intentions) and that the future payment of monthly .Rent of Rs. 450 will also be made through the Court before 15th of each calendar month. On the same day the next hearing was fixed for. 02 April; 1977-Photostat of the Hon'ble Court's tentative orders is enclosed as Annexure III of this Appeal.
(e) Further hearings of the case were held in the same Court on 02 April, 14th May, and 14th July, 1977. The last bearing was held on 20th September, 1977, when the. Case was adjourned for hearing on 03 November, 1977, in the presence of both the parties.
(g) The petitioner Mst. Nurin Nisa Mirza, through her so-called attorney, without any notice or knowledge of the Defendant had withdrawn the Civil Suit 1734/76, on 21st September, 1977- Photostats of her application dated 21st September, 1977, and the Court's 11 Rent Controller ; Karachi orders passed on the same day are enclosed as Annexures IV and V respectively.
(h) The above fact came to the knowledge of the Defendant on 25th September, 1977, only when the petitioner produced her withdrawal application and Civil Court's Order thereon (Annexure IV & V) before the Summary Military Court 'D' to prove that there was no case pending in any of the Civil Courts of Law in respect of her petition in question which bad been submitted to the Martial Law Authorities under M. L. A. Zone 'C' M. L. O. 20 dated 16th August, 1977. Whereas in actual fact a Civil Suit R. C. 1734/76 was pending in a Civil Court of Law before and after the issuance of M. L. A. Zone 'C'
12. M. L. O. 20 dated 16 August, 1977, and its last hearing was held on 20th September, 1977, and the next bearing was fixed to be heard on 03 November, 1977.
13. (j). After withdrawing the Civil Suit 1734/76 in respect of the house in question from the Civil Court of Law on 21st September, 1977, the petitioner somehow or the other got her petition admitted with the Martial Law Authorities in response to which an "Unsigned-" Notice dated 21st September, 1977, from the Summary Military Court 'D' was issued to the Defendant to attend the Court 'D' at 0900 hours on 25th September, 1977-Photostat of the "Unsigned" Notice dated 21st September, is enclosed as Annexure VI of the Appeal.
(k) The Hon'ble Summary Military Court 'D' after hearing the parties, announced that this was the only chance for the petitioner to get her said property vacated and as such the Defendant should, therefore vacate her house by 13th October, 1977.
(l) The owner Mst. Nurin Nisa Mirza was not herself present in the Summary Military Court 'D' on 25th September, 1977, but was represented by her so-called attorney-one of her daughters. The so- called attorney had informed the Court 'D' that Mst. Nurin Nisa Mirza had gone out of the Country on one of her usual visits abroad.
(m) The Defendant has a large family of 10 adults plus children and it would be very difficult to find a suitable accommodation in Karachi by 13th October, 1977. On the other hand, the petitioner is a widow and is single. All her children are grown up and well settled in life living independently in Pakistan as well as abroad.
2. It will not be out of the place to particularly bring to the kind notice of the Appellate Authority that the following officials actions have been completed in One Working Day only i. e. On 21st September 1977:-
(a) The petitioner, through her so-called attorney had applied for the anti-dating of the Civil Suit R.
14. C. 1734/76 from 03 November, 1977 to 21st September, 1977, which request had been admitted by the II Court Rent Controller, Karachi, photostat of the petitioner's application dated 21st September, 1977, enclosed as Annexure IV of this Appeal.
(b) The petitioner, through her so-called attorney had also applied for withdrawing the Civil Suit 1734/76 if the request for antidating the case from 03 November, 1977, to "21st September, 1977, was approved by the Court of II Rent Controller, Karachi, Annexure IV refers.
(c) The Court II Rent Controller, Karachi had passed his orders accepting both the above requests of the petitioner i. e. Antidating the case to 2ast September, 1977, and also approved the withdrawal of the Civil Suit 1734/76 on the same date.
(d) Summary Military Court 'D' had issued an "Unsigned" Notice dated 21st September, 1977, to the parties to be present for the case at 0900 hours an 25th September, 1977.
3. In view of the above facts, the Defendant humbly prays to the Hon'ble Martial Law Administrator Zone 'C' that he may very kindly review the case and the decision given by the Summary Military Court 'D' be set aside. This case be ordered to be proceeded in the civil Court as heretofore since 12th April, 1976, enabling the Defendant to represent his side of the case well and proper through his legal adviser.
15. Hoping that the Defendant's request be acceded to on merits stated above and thanking you, the Defendant remains, Yours most obediently, (Sd) Syed Inam Ahmad."
16. It is quite obvious that the only ground urged in the revision petition against the order dated 25-9- 77 was that the proceedings before the Summary Military Court were incompetent in view of the pendency of the rent application filed before the Rent Controller by the respondent. The claim of respondent on merit with regard to her personal and bona fide requirement was not at all challenged and only legal objections as to the maintainability, of proceedings were urged. In so far the contention that the Summary Military Court did not give any reasons for granting ejectment of the appellant, is concerned, the same has no substance as I found from the order that the reasons as given in support of the order. I will reproduce here the order passed by Summary Military Court No. 'D' on 25-9-1977 to show that not only reasons were given but the evidence produced before it was also considered:-- "The petitioner stated that she was a widow. Her house had been rented out to the Defendant since the last ten years at a rent of Rs. 450 per month. The agreement had already expired and she had been wanting the house for herself for the last five years as she had no other place to live. She further stated that she did not own any other house any where and the only son she had was out of country as he had settled there. She informed that all her daughters were married but then it seas not fair on her part to stay with anyone although she had been forced to do that. The petitioner also informed that she had not received the rent for the last two years and that she had filed a case in the Court which she subsequently withdrew (Documentary evidence produced and attached with the Case).
17. "The petitioner also agreed to file an affidavit in the Court to the effect that she wanted to stay in the house herself. (She later produced the affidavit).
18. The Defendant stated that he bad been staying in the house for the last ten years. He agreed that the agreement had expired and that the-case had been filed in the Court where some hearings had taken place, how--ever, he did not know that the case had been withdrawn. The Defendant also agreed that he had not paid any rent to the petitioner as the petitioner had refused to accept the rent. However, he did not know that the case had withdrawn. The Defendant also agreed that he had not paid any rent to the petitioner as the petitioner had refused to accept the rent. However, be maintained that the entire rent had been deposited in the Court as directed by the Court. The defendant further stated that he was a businessman and that his four brothers were also working with him as full time partner whereas the two younger brothers only worked on part time basis. He informed that it was very difficult to get a house in these days as the rents had increased.
19. The Defendant Syed Inam Ahmad son of Syed Moinuddin Ahmad (a local businessman) is to vacate the House No. 1V-F-5/7, Nazimabad, Karachi belonging to Mst. Nurun Nisa Mirza (a widow of an Ex-Advocate) by 13th October, 1977."
20. It is conceded before me that the Summary Military Court while dealing with the application under M. L. O. 20 was not bound to follow the procedure as laid down under C. P. C. Nor the provisions of evidence Act were applicable to such proceedings: The proceedings before the Summary Military Court were governed under paragraphs 5 and 6 of M. L. O. 20 which are as follows:- "5. (a) The Military Court shall enquire into the case and for the purpose issue notice to the parties concerned for appearing before it on the date mentioned in such notices.
(6) The Military Courts may examine such oral or documentary evidence in support of the petition or in defence of the opposite-party as may be considered necessary.
6. The Military Court shall on the conclusion of the proceedings give its findings."
21. In view of the above provision the Summary Military Court before passing the order of eviction was required to enquire into the case by issuing notices to the parties concerned for appearance before it and after examining such oral or documentary evidence in support of petition or in defence by the opposite party as was considered necessary decided the case. The effect of the above provision in my view is that the proceedings should conform to the principle of natural justice and parties should have reasonable opportunity to defend their case. I have already pointed out that in paragraph (k) of the revision petition which was filed by the respondent against the order dated 25-9-1977 before revisional authority it was admitted by the appellant that the order was passed by the Summary Military Court 'D' after hearing the parties. There is, therefore, no substance in the contention of the learned counsel that the petitioner was not heard by the Summary Military Court before passing the order dated 25-9-1977. In so far the merits of the claim of respondent is concerned the learned counsel for the appellant was unable to point out anything on record to show that the claim -made by the respondent for personal and bona fide use of the premises was not genuine or that it was motivated by any other consideration. In the revision petition before the Martial Law Administrator Zone 'C' no ground was urged on merits against the bona fide requirement of respondent and eve in this appeal the learned counsel for the appellant was unable to satisfy me that the claim of the appellant for bona fide requirement was not sustainable. It has been alleged by the learned counsel for the appellant that the proceed--ings before the Summary Military Court were attended to by the daughter of respondent who had no power of attorney in her favour. Mr. Hassan A. Shaikh the learned counsel for the respondent on 27-8-81 placed before me the original power of attorney dated 27-8-1977 executed by the respon--dent in favour of her daughter. This power of attorney amongst other authorised the daughter of respondent to represent her in the proceedings of a case and to conduct the same on her behalf an I in that connection to take all such steps as may be necessary. In my view, therefore, the representation of respondent before the Summary Military Court through her daughter was quite proper. The result of the above discussion is that the appeal fails which is hereby dismissed but there will be no order as to costs The appellant is allowed four months time to vacate the premises.