' This petition under Article 9 of the Provisional Constitution Order, 1981, was filed to call in question the order of the learned District Judge, Faisalabad, dated 3-1-1984 and of the Rent Controller dated 10-7-1983 directing the ejectment of the petitioner from the premises in dispute.
2. Facts necessary for the disposal of this petition, briefly stated are that Shamas Din and 12 others, respondents Nos.1 to 13 herein, brought an ejectment petition on 22-5-1983 against Umar Din petitioner and his three sons, Sardar Muhammad, Abdul Majid and Bashir Ahmad, respondents Nos.14 to 16 herein. Eviction of the petitioner and his sons was sought on the ground of default in the payment of rent from March, 1982 to May, 1983 as also on the ground that the petitioner who was a tenant of the shop in dispute on monthly rent of Rs,1,000 had sublet it to his sons without the permission of the landlords. It was also alleged in the eviction petition that the landlords needed the shop in dispute for their personal use. Allegation was also made that the shop in dispute had been damaged and reduced in value.
' Notice of the ejectment petition was given to the petitioner and his sons for 15-8-1983 on which date Sardar Muhammad son of the petitioner appeared. Petitioner and his other two sons who were served through Sardar Muhammad respondent did not turn up. They were, therefore, proceeded against ex parte on 15-6-1983 and the case was adjourned to 22-6-1983 for the reply of Sardar Muhammad respondent. On 22-6-1983, Sardar Muhammad respondent did not put in the reply and the case was adjourned to 10-7-1983, on which date counsel for Sardar Muhammad made a statement before the learned Controller that Sardar Muhammad respondent was not in possession of shop in dispute nor had he any connection with that shop. After recording this statement, learned Rent Controller passed the order of ejectment holding that the petitioner and his two sons respondents Nos. 16 and 15 herein had already been proceeded ex parte and as the ejectment application was verified on oath, no further proof was required. This order was passed on 10-7-1983. Feeling aggrieved, petitioner filed an appeal before the District Judge but without any success. Learned District Judge held that Sardar Muhammad had received the summonses on behalf of his father Umar Din and his two brothers Abdul Majid and Bashir Ahmad. Service of all of them was thus complete and the learned Rent Controller was, therefore, justified in proceeding ex parte against the petitioner and his two sons, Abdul Majid and Bashir Ahmad. Learned District Judge further held that in view of the provisions of Order IX, rule 6 (1)(a), C.P.C., Rent Controller was empowered to pass the order of ejectment without recording any evidence. Petitioners' appeal was, therefore, dismissed by his order, dated 3-1-1984.
3. Learned counsel appearing in support of this petition submitted in the first instance that the petitioner who was the tenant of the shop in dispute was not duly served in so far as he was not personally served. Learned counsel did not deny that the petitioner's son Sardar Muhammad had accepted the service of notice for himself as also on behalf of his two brothers and the petitioner. It is not the case of the petitioner that his son Sardar Muhammad did not inform him about the service of notice. In the circumstances, service on Sardar Muhammad, who was an adult male member of the petitioner's family and was himself a party in the ejectment proceedings was a valid and proper service of the petitioner.
' Learned counsel next submitted that the notice having been served only a day before the date of hearing, ex parte proceedings against the petitioner should not have been taken for his non- appearance on 15-6-1983. I am not impressed by this submission firstly, for the reason that if the petitioner's son Sardar Muhammad could appear on 15-6-1983, petitioner, too, could have appeared on that date and secondly, because the petitioner did not care to appear even on the adjourned dates of hearing viz. 22-6-1983 and 10-7-1983. Petitioner undoubtedly had the notice of ejectment proceedings but he thought it fit to remain indifferent and did not join the proceedings.
He cannot, therefore, make any legitimate grievance against ex parte proceedings taken against him.
4. Another argument raised by the learned counsel for the petitioner was that the provisions of C.P.C. Are not applicable to the rent proceedings and, therefore, Order IX, rule 6(1)(a), C.P.C. Relied upon by the learned District Judge to justify the impugned action of the Rent Controller in ordering the ejectment of the petitioner without recording the evidence could not be invoked. According to the learned counsel, it was necessary for the Rent Controller to hold a proper inquiry and record the evidence of the respondents-landlords for satisfying himself in terms of sections 13 (2) and (3) of the Urban Rent Restriction Ordinance that the grounds on which the petitioner's ejectment was sought, in fact, existed. Learned counsel further submitted that in any case, the provisions in question could not be applied on the adjourned date. In support of his submission learned counsel relied upon Shamroz Khan v. Muhammad Amin PLD 1978 SC 89; Islamic Republic of Pakistan v.
Messrs Pioneer Trading Company Karachi 1982 CLC 495; Habib Bank Ltd. v. Muhammad Ishaq PLD 1983 SC (AJ&K) 223; Malik Shahnawaz Khan v. Liaqat Sultan Khan 1980 CLC 462; Ashiq Maseeh v.
Muhammad Yaqoob and 2 others PLD 1981 Lah. 656 and Salamat All v. Maqbool Elahi and 3 others PLD 1982 Lah.
704. None of these cases as will be shown presently is of any help to the petitioner.
5. In Shamroz Khan's case, their Lordships of the Supreme Court while examining rule 6(1)(a) of Order IX as amended by Law Reforms Ordinance, 1972, held that this rule gives discretion to the Court to decide whether the claim against the defendant who has been proceeded against ex parte should be decreed after recording the evidence or without recording the evidence and this discretion is to be exercised judicially. According to the Supreme Court view, matter of recording or not recording the evidence is left in the discretion of the Court.
' Case reported as 1982 CLC 495 was a suit tried by the Karachi High Court on its original side.
Defendants in the suit were proceeded against ex parte. As the matter was ex parte, plaintiff invoked the provision of Order IX, rule 6(1)(a) and claimed a decree on the basis of verified pleadings without recording any evidence. This request was not acceded to as the learned Judge found on perusal of the plaint that the material facts brought on record did not establish the plaintiff's case. Plaintiff was, therefore, required to produce evidence in support of its claim. As regards the provision in question, it was observed "the purpose of Order IX, rule 6(a), C.P.C. Is not that in all cases, where the defendant fails to appear a decree should be granted as a matter of course. The Court is vested with a discretion in proper cases, to refuse to pass a decree without recording evidence. If the contents of the plaint are not sufficient to prove the plaintiff's claim or if the plaint appears to be barred under any law the Court is not bound to grant an ex parte decree.
In cases where a defendant does not appear a Court is duty bound to take greater care and caution to see that no injustice is done to a unrepresented defendant. The provision of Order IX, rule 6(a), C.P.C. Cannot be invoked as a matter of course. Even in the absence of the defendant the plaintiff has to prove his case". It is quite clear from these observations that it rests in the discretion of Court to pass a decree after recording or without recording the evidence. Decree can be passed even on the contents of the plaint if the same are sufficient to prove the plaintiff's case.
' In the third case from the Supreme Court of Azad Jammu and Kashmir, it was observed that Order IX, rule 6(1), C.P.C. Is confined to the first hearing in the suit and it does not, per se, apply to the subsequent hearings which are governed by the provisions of Order XVII, rule 2, C.P.C. This is quite correct but again under Order XVII, rule 2, C.P.C., as held by the Supreme Court of Azad Jammu and Kashmir, "the Court is given widest possible discretion either to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit." Thus even on an adjourned date, a suit can be disposed of in terms of Order IX, rule 6(1)(a).
' Now, I take up the last three cases cited by the learned counsel for the petitioner. All these cases, it may be pointed out, have been decided by the same learned Judge of this Court. These cases have essentially proceeded on the view that C.P.C. Is not applicable to the proceedings before the Rent Controller and, as such, its provisions contained in Order IX, rule 6(1)(a) or Order X, rule 4(2), C.P.C. Cannot be applied in disregard of the provisions of the Rent Restriction Ordinance.
' In 1980 CLC 462, ejectment of the tenant was sought, inter alia, on the ground that the original tenant of the premises had sublet the same to Shahnawaz appellant. Original tenant did not appear and was proceeded against ex parte. Appellant entered appearance and filed reply to contest the application for ejectment. However, on the adjourned date fixed for his better statement, the appellant did not appear. Rent Controller, therefore, proceeded against him under Order X, rule 4(2), C.P.C. And ordered his ejectment. In second appeal by the tenant, order of his ejectment was set aside by the learned Judge of this Court holding that resort to the provisions of Order X, rule 4(2), C.P.C. Offended against the provisions of section 13(2) of the Rent Restriction Ordinance which required the Rent Controller "to satisfy that all or any of the pleas raised by the respondents for seeking eviction of the appellant were correct and unless that was done he could not pass an order of ejectment. He, however, did not do anything to demonstrate his satisfaction.
He did not record any evidence of the respondents in support of the averments made by them for obtaining an order of ejectment. One of the contentions raised in defence of the ejectment proceedings was that the relationship of landlords and the tenants did not exist between the parties. Unless such relationship is established, a Rent Controller cannot assume jurisdiction. The respondents did not adduce any evidence to show that the said relationship was actually there.
The learned Rent Controller could not, therefore, assume jurisdiction and pass the impugned order."
This case is clearly distinguishable as the tenant had appeared and submitted a reply raising an objection, inter alia, that the relationship of landlord and tenant did not exist between the parties. It was in these circumstances that it was held that the landlord should have adduced evidence to establish the relationship of landlord and tenant in the absence of which Rent Controller could not assume jurisdiction in the matter.
' In "Ashiq Maseeh v. Muhammad Yagoob:' notice of ejectment petition was sent to the tenant in the first instance through ordinary process but it was reported that he had gone abroad. He was, therefore, served by means of proclamation in a newspaper. Despite this service, he did not enter appearance and the Rent Controller ordered his ejectment forthwith without holding any formal enquiry. Orders of ejectment were struck down by this Court in its constitutional jurisdiction by holding that the Rent Controller had no jurisdiction to order substituted service of the tenant because "there was no basis for ordering service of the petitioner through citation". It was further held that the order of eviction was passed for the simple reason that the tenant had failed to enter appearance despite service although under section 27 of the Cantonments Rent Restriction Act, Rent Controller was obliged to hold an enquiry before ordering ejectment of the petitioner. This case is also distinguishable because it was a case under the Cantonments Rent Restriction Act, 1963, section 27 whereof provided that no order of ejectment under section 17 of the Act shall be made by the Controller except after holding. An enquiry. Precedent case primarily proceeded on this provision in laying down that the order of ejectment could not be passed without holding a formal enquiry. It may be noted that section 13 of the Rent Restriction Ordinance which is the relevant provision in the present case does not in terms provide for any enquiry. Yet another point of distinction is that in the cited case, it was held that the tenant was not validly served. Order of his ejectment was, therefore, set aside for the additional reason that he was not given a reasonable opportunity of showing cause against the application for ejectment.
' In the last case in the series viz."Salamat Ali v. Maqbool Elahi;" tenant appeared through his counsel and at his request, case was adjourned for filing the reply. On the adjourned date, counsel for the tenant stated that he was informed by his client that the dispute had been settled outside the Court and the landlord had promised to enter into fresh lease agreement with him. Counsel further stated that after imparting this information, his client had not contacted him and he had, therefore, no instructions to pursue the matter on his behalf. On this statement, Rent Controller ordered ex parte proceedings against the tenant and directed his ejectment from the shop in dispute without holding any enquiry or recording evidence. Tenant questioned the orders of his ejectment in a constitutional petition which was allowed by this Court relying upon the earlier two decisions of 'Ashiq Maseeh' and 'Malik Shahnawaz' holding that "the provisions of clause (a) to sub- rule (1) of rule 6 of Order IX of the Code of Civil Procedure were not available to the learned Rent Controller for passing order of eviction against the petitioner due to his failure to appear before him and file his reply on the appointed day." It was further held that "it is obligatory for a Rent Controller to satisfy himself with regard to the correctness of the plea advanced by the landlord for securing ejectment of a tenant before making an order of eviction against him. I am conscious of the fact that he is not bound to hold trial as is required to be done in civil suit but he is to look up for some material for satisfying himself that there is merit in the plea raised against the tenant. There was no such material before the learned Rent Controller when he directed the petitioner to net out of the shop in dispute nor any such material has been hinted at by him in his order under review.
His order is, therefore, in disregard of the provisions of subsection (3) of section 13 of the said Ordinance."
6. There is no cavil with the proposition that C.P.C. Is not applicable to the proceedings before the Rent Controller and any procedure provided by C.P.C. Which runs counter to or offends against the provisions of the Rent Restriction Ordinance cannot be invoked/applied to the proceedings under the Ordinance. It may, however, be noticed that the Rent Restriction Ordinance does not prescribe any particular procedure to be followed by a Rent Controller in dealing with the applications for ejectment, nor does it contain any provision for holding of any enquiry before ordering the ejectment of a tenant. The only requirement prescribed in section 13 of the Ordinance which is relevant for the present purpose, as noted by their Lordships of the Supreme Court in Sh. Abdus Sattar v. Malik Muhammad Afzal and others PLD 1985 SC 148, is that "the ejectment of the tenant should be ordered only if the Rent Controller is "satisfied", after giving him a reasonable opportunity of showing cause against the application, that this is warranted." Their Lordships also referred to the case of Khadim Mohy-ud-Din v. Rehmat All PLD 1965 SC 459 wherein significance of the word "satisfied" was explained as follows:- "Then subsection (3) of section 13 says that before putting the landlord in possession of the tenanted premises the Controller should be 'satisfied' that the claim of the landlord is bona fide. But there is no express mention of any enquiry by the Controller. If the word 'satisfied' imports the necessity of an enquiry, even then it cannot be said that in holding such enquiry he will be bound by any particular procedure."
' In the same context, it was further observed by their Lordships that "all that is expected from the Rent Controller is that he should act fairly and before passing final orders in the case afford the parties a reasonable opportunity to defend their respective views, but he is otherwise not trammelled by having to follow any express form of procedure." (underlined are mine).
7. The foregoing discussion leads me to the conclusion that a Rent Controller while dealing with an application for ejectment under section 13 of the Rent Restriction Ordinance is not required to hold any formal enquiry and/or to record the evidence in all cases. If holding of an enquiry were necessary before ordering the ejectment of a tenant, the legislature would have made an express provision in that behalf as was enacted in section 27 of the Cantonments Rent Restriction Act, 1963.
Under the relevant statute, Rent Controller is only required to satisfy himself that the grounds on which a tenant is sought to be ejected, in, fact, exist. This satisfaction can be had from any material available on the record including the averments made in the eviction petition. This is particularly so in cases where the tenant has chosen not to appear and contest the ejectment proceedings. In such cases, Rent Controller may very well accept as correct the grounds of ejectment specifically pleaded in the eviction petition duly verified and pass the order of ejectment without holding further enquiry. In the case in hand, petitioner did not appear to contest the ejectment proceedings despite notice. His two sons, respondents Nos.15 and 16 also did not join the proceedings. Sardar Muhammad respondent No,14, another son of the petitioner appeared before the Rent Controller but made a statement that he was not in possession of the shop in dispute and had no concern with it. Learned Rent Controller, therefore, after taking note of all these facts and considering that the application for ejectment was duly verified formed the view that further proof was not necessary and proceeded to pass the impugned order directing the ejectment of the petitioner.
This approach of the Rent Controller is indicative of the fact that before passing the impugned order of ejectment, he was fully satisfied about the case set up by the landlords which evidently remained unrebutted/ uncontested. He, therefore, rightly did not hold any further enquiry which even otherwise, he was not obliged to hold as a matter of law. I find no illegality in the view taken and the order passed by the learned Rent Controller.
8. Apart from that has been said above, petitioner having chosen not to appear before the Rent Controller in spite of notice of the ejectment petition, he cannot be permitted to take shelterbehind the technicalities. It does not lie in his mouth to agitate that the Rent Controller should have recorded the landlords' evidence to satisfy himself about the correctness of the grounds taken in the eviction petition before ordering his ejectment. Petitioner cannot agitate against the consequences of his own default. However, even if there be any substance in this plea, I am not inclined to give any weight to it so as to interfere with the impugned order in exercise of my discretionary constitutional jurisdiction. .9. For the foregoing reasons, I find no merit in this petition which is hereby dismissed but there shall be no order as to costs in the facts and circumstances of the case.