Respondent No. 1, Ghulam Muhammad, hereinafter referred to as the respondent, made an application against the petitioners, Taj Din and others, for their ejectment from a house. The application came up before a Rent Controller on 30th September, 1975 but as the petitioners did not enter appearance on the said date they were proceeded against ex parte. Thereafter, on.10th November, 1975, the learned Rent Controller recorded the respondent's statement as his own witness and passed an ejectment order against the petitioners. The petitioners made an application for setting aside the ex parte order of eviction. Their plea was accepted on 11th November, 1976 and the ex parte order passed against them was set aside. The petitioners then filed reply to the ejectment application whereafter necessary is3ues were framed by the learned Rent Controller. However, on 10th September, 1977, when the application came up before the learned Rent Controller for recording of evidence of the respondent (landlord), the petitioners failed to put in appearance and, therefore, ex parte proceedings were again ordered against them.
Another application for setting aside the ex . Parte proceedings was made by the petitioners but the same was dismissed on 20th November, 1977. According to learned counsel for the respondent, the said application was dismissed in default. It was further pointed out by learned counsel for the respondent that on 2nd February, 1978 the petitioners made a fresh application for setting aside the ex parte proceedings which was dismissed on 20th January, 1980. While dismissing that application the learned Rent Controller also passed an ex parte order of eviction against the petitioners on the basis of the respondent's .Statement which had earlier been recorded on 11th October, 1975. Feeling aggrieved by the order of the learned Rent Controller in this behalf, the petitioners went in appeal before an Additional District Judge but their appeal was dismissed. They have, therefore, filed this writ petition to assail the orders of the two tribunals below.
2. It was contended by learned counsel for the petitioners that since the earlier order of ejectment made by the learned Rent Controller on the basis of the statement of the respondent, recorded on 11th October, 1975, had been set aside, the said statement had ceased to be evidence in the case and it could not be relied upon by the learned Rent Controller for passing a fresh, order of ejectment against the petitioners. His plea, therefore, was that he impugned order of the learned Rent Controller was without jurisdiction inasmuch as there was no basis therefor. He relied on Mst.
Lakshmi Devi v. Roongta & Co. And others (1) Phani Bhusan Mukherjee v. Phani Bhusan Mukherjee and others (2) and Public Prosecutor v. Ramayya Mudaliar and others (3) to support his arguments.
3. In reply, it was urged by learned counsel for the respondent that since the petitioners had repeatedly failed to participate in proceedings before the learned Rent Controller, they could not object to the order under review. It was also maintained by learned counsel for the respondent that the learned Rent Controller had the jurisdiction to pass the order under challenge and even if the same was erroneous it could not be interfered with by this Court in exercise of writ jurisdiction. In this connection, he invited my attention to Muhammad Hussain Munir and others v. Sikandar and others (4). As for the authorities cited by learned counsel for the petitioners in support of the plea raised by him, it was submitted by learned counsel for the respondent that since those. Authorities relate to civil cases they cannot be made use of by the petitioners for the purpose of his ejectment application.
(1) AIR 1962 All. 381 (2) AIR 1957 Cal. 170
(3) AIR 1928 Mad. 969(4) PLD 1974 SC 139
4. In the precedent cases cited by learned counsel for the petitioners, it was held that if any evidence is recorded in the absence of a party who has been proceeded against ex parte but subsequently ex parte proceedings order against that party are set aside, the evidence recorded in his absence cannot be relied upon for passing another order against him. It is true that the authorities quoted by learned counsel for the petitioners all relate to civil cases but since a salutary principle has been enunciated therein, there is no harm in following that principle in the matter of ejectment cases also. If that principle is acted upon in the case before me the result would be that there was no evidence before the learned Rent Controller justifying the order of ejectment assailed herein because the respondent's statement on which the order is based had been washed away with the setting aside of ex parte proceedings after the recording of that statement.
5. The respondent had sought ejectment of the petitioners on the ground of default According to clause (i) of subsection (2) of section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, it was obligatory for the Rent Controller to satisfy himself before making the order of eviction of the petitioners that they had committed default in the payment of rent. Besides the respondent's .Testimony which is to be excluded from consideration for the aforesaid reason there was nothing on the record to satisfy himself in this regard. The order of ejectment passed by him was, therefore, without jurisdiction and deserves to be quashed,.
6. As for the conduct of the petitioners to which exception was taken by the learned counsel, even if I ware to agree with learned counsel for the respondent that their conduct was far from satisfactory, that would not constitute a valid ground for upholding the order which suffers from a jurisdictional defect.
7. The order assailed before me is not an erroneous order but an order without jurisdiction. The case of Muhammad Hussain Munir and others is, therefore, of no help to the respondent.
8. In result, I accept this petition, set aside the order under challenge and direct the learned Rent Controller to decide the ejectment application afresh in the light of above observations and according to law. Since the respondent is clamouring for ejectment of the petitioners for the last six years, the learned - Rent Controller shall decide the application again within three months and if an appeal is taken against his order, the same shall also be decided within three months of the institution of the appeal. There shall be no order as to costs.