' Appellant namely Muhammad Shafi is objector before the learned Rent Controller in execution proceedings. He has been dispossessed from demised premises in consequence of execution of writ of possession and he filed an application for restitution of possession on the ground that he was not a party to the proceedings of ejectment between the landlord and previous tenant but his application has been rejected on the ground that the learned Rent Controller has no jurisdiction to rescind an ex parte order as contemplated under section 19 (2) of the Sind Rented Premises Ordinance, 1979.
2. Briefly stated the relevant facts giving rise to this appeal are that respondent namely M/s. Bambino Limited are the landlords of Bambino Chambers situate on Garden Road, Karachi, and room No, 27 of that building was previously tenanted by Selmer International Limited, who were impleaded in the appeal under consideration as respondent No, 2 but subsequently on the request of appellant their name has been struck off. It is stated that the landlords tiled an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 for eviction of Selmer International Limited from room No, 27 on the ground of default in payment of rent. Selmer International Limited did not contest the proceedings and handed over vacant possession of the tenement mentioned above, which was let out to the appellant by the landlords vide lease deed duly executed on 19th April, 1977 by the landlords and the appellant. According to the terms of the lease deed room No, 27 has been rented out to the appellant at monthly rental of Rs, 743.75 and a security deposit of Rs, 5,000 was taken from the appellant for which a separate receipt has been issued. Consequently, appellant was put into possession of Room No, 27 and he has set up his business office of building contractors in the demised premises. Appellant has been paying rent regularly, which has been accepted by the landlords, who have issued receipts and a copy of four such receipts have been produced. It is stated that fraudulently landlords perused rent case No, 2685/76 filed against the previous tenant Selmer International Limited in respect of room No, 27 and obtained an ex parte order of ejectment against the previous tenant and executed writ of possession, whereby the appellant has been dispossessed from room No, 27 dishonestly although he was never a party to that rent case. It is further stated that appellant was lawfully inducted into possession of room No, 27 by the landlords and he had put his sign board on the demised premises and had been paying rent regularly to the landlords and further that appellant has no connection whatsoever with Selmer International Limited in any manner. When the appellant came to know about impending eviction in execution of writ of possession by bailiff of the Court of Rent Controller, he rushed to the Court of the Rent Controller and filed application for stay of execution of writ of possession on 10th September, 1980 and the learned Rent Controller ordered stay till 13th September, 1980 on the condition that the order would be operative if the execution had not been carried out and by the time appellant rushed back to the demised premises with the order of stay, process of eviction had already been completed. Thereafter appellant filed application under section 151 read with section 141, C. P. C. For restitution of possession of room No, 27 supported by an affidavit of appellant in which all the facts are stated in details and the documents such as lease deed and receipts were also produced. Notice was issued to the landlords and after hearing the parties the learned Rent Controller dismissed the application of the appellant by order dated 13th November, 1980 which is impugned herein. The main ground for rejection of the application of appellant is that the question of restoration of possession depends upon setting aside ex parte order of ejectment, which the learned Rent Controller is unable to do in view of finality attached to the order as contemplated under section 49 (2) of the Sind Rented Premises Ordinance, 1979.
3. It is contended before me by Mr. Abdul Hafeez Pirzada, learned counsel for the appellant, that the bar contained in section 19 (2) of the Sind Rented Premises Ordinance, 1979, is confined to the parties in ejectment application and would not apply to third party who was not a party to the ejectment proceeding before the Rent Controller. Perusal of section 19 of the said Ordinance shows that procedure has been prescribed for the guidance of the Rent Controller that while he is dealing with an application for ejectment other than application under section 14 of the said Ordinance, he shall, unless application is summarily dismissed by him for reasons to be recorded, issue a notice to the respondent to file written statement, if any, within such period not exceeding 15 days of receipt of the notice. Subsection (2) of section 19 further provides that where on the day fixed in the notice for the respondent to file written reply it is found that the notice has been served but the respondent has failed to file his replace without any reasonable excuse, the Controller may, proceed to make a ex parte order and after such order has been made, the Controller shall have no power to rescind such order. Mr. Pirzada has argued that in providing such bar in the said Ordinance the intention of the Legislature is to cut short the proceedings in rent cases to achieve the subject of expeditious disposal that is why simple procedure of production of evidence of witnesses by affidavits has been introduced and further only one appeal has been allowed so that there should be quick end to this kind of litigation in rent cases. It appears that the bar contemplated under section 19 will operate only when respondent specifically named' the application of ejectment has been served and does not Ale written reply within the stipulated time.
In such case the Rent Controller can pass ex parte order against that respondent and after having passed such ex parte order, he is divested of the power to rescind the same. This has been so provided in order to give a touch of finality to the ex parte order and such respondent against whom the ex pane order has been passed can file appeal before the Appellate Court. The Appellate Court, under section 21 (3) of the Sind Rented Premises Ordinance, 1979, has the power to hear the parties and make such further inquiry either by himself or by the Controller and then make an appropriate order which shall be final. Now the respondent against whom there is ex parte order can file appeal and if he convinces the Court that he was not properly served and the ex parte order was uncalled for. The Appellate Court can remand the case to the Controller with direction to give such party proper hearing. It is in that context that bar has been provided in section 19 of the Sind Rented Premises Ordinance, 1979. In the instant; case, appellant objector was not a respondent before the learned Rent Controller in the rent case which was filed by the landlords against the) previous tenant namely Selmor International Limited. Appellant had no notice of such proceedings. Writ of possession against Selmor Inter-1 national Limited cannot be executed against the present appellant who was lawfully inducted into possession by the landlords themselves to prove which there is sufficient evidence of documentary nature on the e record. In the circumstances the Rent Controller has to see that the Writ of Possession in consequence of ex parte order is to be executed against the respondent against whom there is ex parte order and not against a third person, who was not a party to the proceedings before him. It is the duty of the Rent Controller to see that his order is executed in the manner and against the party as provided under the law and such order be not allowed to be executed in an unlawful manner which may amount to miscarriage of justice. There is a bar under S. 19 of the Sind Rent Premises Ordinance, 1979, that the Rent Controller after having passed ex pane order against the respondent cannot rescind that order but there is no bar in the said Ordinance holding the hands of the Rent Controller from staying the execution of the writ of possession against a third party who was not respondent in the rent case and who is able to produce documentary evidence to show that he is lawful tenant of the premises in question which are sought to be vacated. It is wrong to say that the Rent Controller was not competent to order stay of execution or grant restitution of possession unless the .Ex patre order was set aside because the respondent against whom there is ex pane order has not been dispossessed but some other person has been dispossessed, hence the order of dispossession is not in compliance with the ex parte order. The Rent Controller even without touching ex parte order in view of the bar mentioned above could have corrected his own subsequent order of issuance of writ of possession when material was placed before him by the appellant that he was in possession of the premises in dispute as a tenant and he was not a party to the proceedings and had nothing to do with the respondent named in the ejectment case. There is no bar in the Sind Rented Premises Ordinance, 1979, against correction rectification or withdrawal of orders, which are passed illegally o appear to have been carried out in patently illegal manner causing great prejudice and injury to the rights of other persons who are no parties to the proceedings. This can be done in order to prevent miscarriage of justice.
' Another angle from which this point can be seen that it is indisputable that the Rent Controller has jurisdiction conferred by the Sind Rented Premises Ordinance, 1979 only when there is relationship of if landlord and tenant between the parties in the rent case before him. If there is no such relationship then the Rent Controller has no jurisdiction. In the instant case landlords had filed ejectment application against the previous tenant namely Selmor International Limited on 1st July, 1976. Previous tenant did not contest the proceedings and ultimately ex parte order was passed against him on 30th November, 1976. Execution application was filed on 30th November, 1977. In the meantime in between these two dates mentioned above landlords got vacant possession of the disputed tenement i,e, room No, 27 and inducted into possession in those premises present appellant on 18th April, 1977, vide lease deed executed by landlords and the appellant. On behalf of the landlords this lease deed is executed by none other than Bambino Limited, who as such have filed ejectment application against the previous tenant. It is not clear as to when did the previous tenant hand over vacant possession of room No, 27 to the landlords but on 19th April, 1977 when the appellant was inducted into possession of room No, 27 jurisdiction of the Rent Controller in rent case No, 2685/76 came to an end for the reasons that the landlords had no more cause of action against the previous tenant Selmor International Limited who was named as respondent. With the termination of jurisdiction of Rent Controller on 19th April, 1977, the remaining proceedings in the case between the landlords and respondent Selmor International Limited had become coram non judice for lack of jurisdiction. Order passed by the Rent Controller on execution application for issuance of writ of possession is also without lawful authority as having been passed in the proceedings which are coram non judice. No effect is to be given to this order in the execution of which rights of a third party unconnected with ejectment proceedings are affected. The Rent Controller can withdraw the order of execution of Writ of possession which is illegal and can also prevent the miscarriage of justice caused by it by passing any suitable order to achieve that object as stated above. Even if this order happens to be an order for restitution and if this is the only way by which consequences of an illegal order can be done.
5. Now the question arises as to when did the Rent Controller actually come to know that the proceedings before him had become coram non judice. As stated above the landlords put into possession the appellant in room No, 27 on 19th April, 1977, and then commenced the tenancy of the present appellant. This fact is supported by documentary evidence which is available on the record. This fact was in the knowledge of landlords who are party before the Rent Controller in the rent case. Landlords should have divulged this fact to the Rent Controller that proceedings in rent case pending before him have come to an end as respondent named in the rent case has vacated the premises in question and is no more a tenant. Instead of doing this the landlords suppressed these material facts from the Rent Controller and went on pursuing the case and applied for execution of ex parte order which was obtained against the previous tenant. On 10th September, 1980 when the writ of execution was being executed, appellant having come to know abort it rushed to the Court with an application which he filed as intervenor/objector and requested for stay. On the same day stay was granted on the condition that it would be operative only if the execution have already not been carried out. By the time the appellant rushed back to the premises with stay order, execution had already been carried out and he was out of possession.
Then on 14th September 1980 appellant filed before the Rent Controller application under S. 151, C. P.
C. And prayed restoration of possession of room No, 27 on the ground that he was in possession of the premises as lawful tenant and was unlawfully dispossessed and was not party to the proceedings before the Rent Controller. Application is supported by an affidavit of the appellant and photostat copy of the lease deed, receipt cf security deposit and rent receipts were also produced. The learned Rent Controller issued notice to the other side i. e. Landlords, who filed counter-affidavit of one Shaikh Ibrahim manager of Bambino Cinema. In the counter affidavit, strangely enough, allegation is made that fraud has been committed by appellant in collusion with the opponent and possession of the disputed premises was obtained by the appellant in spite of the fact that he was aware of rent case which was pending before the Rent Controller. At another place in the same paragraph of counter-affidavit it is stated that objector was in collusion with opponent and misrepresented the facts to the appellant. In short the blame has been thrown upon the objector/appellant that he has committed fraud. This counter-affidavit is very deftly drafted in as much as there is no categorical denial with regard to the execution of lease deed, receipt for security deposit and rent receipts which purport to have been executed and issued respectively by M/s. Bambino Limited, but it is stated in a roundabout way that entire transaction was null and void and of no consequence. There is only clear denial with regard to Annexure "H' attached with the application of the appellant which is an extract from the minutes of meeting of Bambino Chambers committee held on 19th September, 1979. Copy of the minutes of the meeting was sent to the appellant in his own name as Muhammad Shafi tenant of room No,
27. Possession of appellant is not denied and also the fact that he was dispossessed. It is also stated in the counter- affidavit that the bailiff went at the premises in dispute several times to serve the process but the opponent and objector refused the same hence the objector now cannot say that he was not aware of the proceedings and was not made a party to the proceedings. It is further stated in the counter-affidavit in para 13, that "as regards allegations in para 13, I say that it was a lawful order of this Hon'ble Court which was executed lawfully after scrupulously observing all the formalities which took a very long period for compliance." It appears from the impugned order that the learned Rent Controller did not go into averments made by the parties on this question and did not examine the documents but disposed of the application on the legal aspect that he had no jurisdiction because there was an ex parte order, which he could not rescind in view of bar contained in section 19 (2) of the Siud Rented Premises Ordinance, 1979. The learned Rent Controller should have gone into the averments made by the parties and should also have seen the documents which speak for themselves and clearly show as to who has committed fraud.
6. Mr. Khalid Latif, advocate for the respondents, argued that provisions of the Civil Procedure Code are not applicable to the proceedings before the Rent Controller and powers of the Rent Controller are limited which are specifically provided in the said Ordinance. On the other hand, Mr. Pirzada has argued that there is no cavil about the proposition that the Rent Controller is not Civil Court strcto senso but acts in quasi-judicial capacity and the provisions of the Civil Procedure Code are not applicable to the proceedings before the Rent Controller, who has to evolve his own procedure and may apply basic principles enunciated in the Civil Procedure Code for proper dispensation of justice. Reliance is placed by him on the cases Khadim Mohiuddin others v. Ch. Rehmat Ali Nagra and another, N. Q. Industries v. Mrs. Bapai Kai Khusro and Ayub and another v. Fazal Haq and another. Mr. Khalid Latif submitted that provisions of Civil Procedure Code are not applicable to rent proceedings but nevertheless the Rent Controller can apply such provisions if he considers necessary and has such discretion. He has cited the case of Muhammad Saleh v. Muhammad Shafi. Mr. Khalid Latif further submitted that in the instance case the appellant has remedy under the ordinary law and the Rent Controller is not competent to grant relief under section 144, C. P. C.
Of restitution of possession. Mr. Pirzada submitted that in the circumstances of the instant case as stated above appellant has been dispossessed because of illegal order passed by the learned Rent Controller, when he was not a party to the proceedings and the Rent Controller was competent to order under this wrong flowing from the order passed by him in restitution of possession which is a general principle of justice. He has cited the case of Mst. Fatima Bai v. Jan Muhammad, Mst. Zubaida Bai v. Second Rent Controller City Court Karachi.
7. For the facts and reasons and the legal position stated in the case law mentioned above, I hold that appellant in the instant case has been dispossessed illegally by the order of the Rent Controller when he was not a party to the proceedings and further that the order was illegal because proceedings before him had become infructuous and coram non judice relationship of landlords and tenant in the case pending before him had ceased to exist when the landlords put the appellant into possession of disputed premises. Landlords have committed fraud and had come to the Court of Rent Controller with unclean hands and they should not be allowed to have the advantage and benefit of the order of execution of writ of possession by which the appellant has been dispossessed illegally. The learned Rent Controller even without touching ex parte order could have corrected and rectified his own order which resulted into miscarriage of justice. This is inherent power of every Court and for that matter even the tribunal or the Rent Controller has this power. In the circumstances, appeal is allowed, impugned order is set aside and the respondents are directed to put the appellant back into possession of room No, 27, Bambino Chambers, Garden Road, Karachi, within 7 days from today. If need be Police aid can also be taken. Appeal is allowed with costs. PLD 1965 SC 4591 2 3 4 5 6 1