Khawaja Ghulam Mohy-ud-Din (hereinafter called the landlord) filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959), (hereinafter called the Ordinance), for eviction of Mr. Habib Ismail Bajwa, Advocate (hereinafter called the tenant) on the ground that the property in dispute was needed by the landlord for his own personal need and occupation. The application was rejected by the learned Rent Controller on 25-10-1966. The landlord filed an appeal which was accepted by the learned Addl. District Judge, Lahore, by means of his judgment and order, dated 7-9-1967, whereby he directed the eviction of the tenant. The tenant has come up in second appeal to this Court.
2. An aspect of the case which is worth-mentioning and cause, which a good deal of arguments were addressed before me is as follows :-
(a) That on 27-7-1964, the learned Rent Controller framed the following two issues :-
(i) Whether the property in dispute comes within the definition of scheduled building ? If so, what is its effect (O. P. R.).
(ii) Whether the petitioner requires the property in dispute for his bona fide personal use? (O. P. A.).
(iii) Relief.
(b) After framing the above issues, the case was fixed for 13-10-1964 for parties evidence. On the said date, when the case was called out in the morning at 11 a.m. Counsel for the landlord was present but the tenant was absent. The learned Rent Controller directed that it should be put up after waiting for sometime. The case was again called at about 12 p.m. (this is the time pleaded by the tenant). At, that time also the tenant was riot present, therefore the learned Rent Controller directed that the proceedings against him be ex parte, and the evidence of tae landlord be recorded. The landlord produced Zulqarnain (A.W.1); Nair-ud-Din (A.W.2) and Muhammad Sarwar (A. W. 3) arid himself appeared in the witness-box as A. W.
4. While the statement of the landlord was going on, the tenant appeared in Court and requested the learned Rent Controller to allow him to cross-examine A. W. 1 to A. W. 3 and also A. W. 4, whose statement was yet in progress. The learned Rent Controller did not accede to this request and directed the tenant to put in an application in black and white. There and then the tenant filed an application supported by an affidavit pleading that he had a case in the Supreme Court on account of which he was held up there. He also averred in his application that he reached the Court at 12-27 p.m., when the respondent-landlord's ex parte evidence was being recorded. It was also pleaded that he had made a request to the learned Rent Controller to allow him to cross-examine the witnesses but he was directed to file an application and hence the said application was being filed. After making the above averments, it was prayed that the ex parte order may be set aside.
(c) This application was dismissed in default on 12-11-1964. The tenant applied for its restoration on the same date. The said application i.e. Application dated 12-11-1964, was also dismissed in default on 11-6-1965. The tenant then filed a third application on 14-6-1965, for restoration of the application, dismissed on 12-11-1964, and for setting aside the order, dated 11-6-1965. On 24-6-1965 the learned Rent Controller restored the application filed on 12-11-1964, and struck an issue, "as to whether there was sufficient cause for setting aside the ex parte order dated 13-10-1964". The tenant produced R. W. 1 Mr. Ghulam Mujtaba Advocate, R. W. 2 Raja Muhammad Amir and R. W. 3 Ch. Hafeez Ahmad Advocate and himself appeared as his own witness as R. W. 4, to state that he was held up in the Supreme Court and when he reached the Court of the learned Rent Controller, the statement of the landlord was going on. He also deposed that he prayed for joining and taking part in the proceedings but on the objection of the learned counsel for the landlord he was not allowed to do so. This aspect of the matter is not denied before me and it is conceded by the learned counsel for the landlord that it is correct that the tenant had reached the Court of the learned Rent Controller when the statement of the landlord was still going on and that he was disallowed by the learned Rent Controller to join or participate in the proceedings even from that stage and was not allowed to cross-examine the landlord. The . Learned Rent Controller by means of his order, dated 27-5-1966, dismissed the application holding that there was no sufficient cause to set aside the ex parte order or .Proceedings.
(d) The tenant then filed another application on 28-5-1966, that he may be allowed to cross- examine the landlord who was being examined when the tenant reached the Court and permission may be granted. To him to lead his own evidence and Offer arguments in the case. This application was partly accepted by the learned Rent Controller by means of his order, dated 21-6- 1966, whereby he allowed the tenant to address the arguments, but disallowed the other reliefs claimed by him.
(e) The tenant then filed a last application before the learned Rent Controller repeating the same request on the 14th of September 1966, and emphasising that he may be allowed at least to make his own statement. By this time, the earlier Rent Controller (Rao Iqbal Ahmad) had been transferred and was succeeded by a new Presiding Officer (Malik Khizar Hayat). On 8-10-1966, the learned Rent Controller partly accepted this application and directed that the statements of the landlord and the tenant may be recorded (again). The landlord and the tenant then made their statements but they were not allowed to cross-examine one another and only the learned Rent Controller himself put a few questions to each of them on the suggestion of the parties. It was after this that the final order in the case was passed by the learned Rent Controller on 25-10-1966, whereby he dismissed the application of the landlord as already mentioned in earlier paragraphs of this judgment.
3. With reference to the facts mentioned in the preceding paragraph, it has been argued by the learned counsel for the tenant-appellant that according to section 13(2) of the Ordinance, it is mandatory that a reasonable opportunity of showing cause should be given to the tenant in the case filed against him. It has been argued that the above facts and circumstances show that the learned Rent Controller failed to give a reasonable opportunity to the tenant-appellant is opinion, this contention has force. The learned Rent Controller appears to have acted on the principle, that the ex parte order was to enure for the whole of the proceedings in the case and to --only method by which a defendant can be heard after he has defaulted in appearance is to appear in Court and assign gone: cause for his previous non-appearance and that he is dead for the purpose of putting in appearance in the suit and even if he physically appears in Court later, his appearance cannot be recognized as an appearance for the purposes of the suit. It is on this basis that the learned Rent Controller did not allow the tenant even to join at the stage at which the case was when he physically appeared in Court. There was a conflict of opinion on this point in the various High Courts in India. One point of view was the same on which the learned Rent Controller seems to have acted in this case. The other view was that a defendant by his failure to appear at one of the hearings in the case does not become an outlaw. He is still a party to litigation; the evidence is led against him and the decree is ultimately passed against him. Therefore, he can join proceedings at any stage of the case. I need not mention the details of that case-law; because so far as Indian High Courts are concerned, the conflict seems to have been set at rest by the Supreme Court of India Sangram Singh v. Election Tribunal, Kotah and another (AIR 1955 SC 425), wherein it was held that a defendant by making default in appearance does not become a dead person for the purposes of the case and that he can join and participate in the proceedings onward from the stage at which the default took place'; though he cannot pray for recalling the proceedings which had taken place prior to his appearance in Court unless he shows good cause for absence on the relevant date. Sa far as Pakistan is concerned, the earlier view was that a defendant, who has defaulted once, cannot join in the proceedings later on-See Syed Mushtaq A.I and others v. Master Khushi Muhammad (PLD 1961 Lah. 792). The later view of this Court, however, is that a defendant can join and participate in the proceedings onward from the stage at which he appears in Court.
See Ghulam Muhammad and others v. Mst. Irshad Begum and others (PLD 1964 Lah. 782). A similar concession was allowed to a defendant in Laique Ahmad Siddiqui v. The Federation of Pakistan (PLD 1957 Kar. 54). It will thus appear that the view, both in India and Pakistan, has come to be that a defendant can join the proceedings onward from the stage at which he puts to appearance. In that view of the matter. I think the learned Rent Controller was not justified when he did not allow the tenant to cross-examine the landlord who was making his own statement at the time when the tenant put in appearance in Court.
4. The position seems to be aptly summed up in Gokarakonda Venkatasubbiah v. Daliparthi Lakshminarasimham (AIR 1925 Mad. 1274), where it is written as follows :-- "In the present case if the plaintiff had closed his case and the petitioner had been called upon to produce his case, and he was absent and, therefore, made ex parte as regards the presentation of his case, I take it that he would not be allowed to come on later, unless he got the ex parte order set aside under Order IX, r.
7. But if the plaintiff had closed his case and the petitioner had not been called upon to produce his case, there could be no ex parte order against him with reference to his presentation of his case, which had to be set aside. Therefore, he could appear and go on with his case on the adjourned date from the stage at which it stood."
Applying the said principles to the facts and circumstances of the present case; it would be seen that by the time the tenant appeared in Court on 13-10-1964, the landlord had not yet closed his case and he was still in the process of making his own statement. After the landlord had closed his case, was to arrive the stage, when the tenant was to lead his evidence. At that p stage, the tenant was physically present in Court. There was thus no justification to disallow the tenant from leading his evidence in the case or making his own statement. The learned Rent Controller acted without lawful authority in proceeding in the manner indicated in the earlier paragraphs of this judgment and a finding can clearly be recorded that the tenant, in the circumstances hereinbefore explained was not given a reasonable opportunity to defend and conduct his case.
5. The next aspect to be noticed is that when Malik Khizar Hayat allowed the parties to mike statements in Court as their own witnesses, there was no justification on his part as not to allow their cross-examination. Due to the illegalities herein--before mentioned, the proceedings conducted by the learned Rent Controller are both against the Statute as well as the principles of natural justice and I have no option but to set aside the same. The same is the position with regard to the order of the learned Addl. District Judge which is based on the aforesaid illegal proceedings.
6. The next point argued was that there was a good cause for the late appearance of the tenant in Court on 13-10-1964. The evidence led by the tenant (of which there was no rebuttal), showed that he remained in Supreme Court on the said date in connection with the case mentioned by him in his application for setting aside the ex parte proceedings. It is also in evidence that the tenant reached the Court when the statement of the landlord was still in progress. It is no doubt correct that the tenant had not given a prior intimation to the learned Rent Controller about his engagement in the Supreme Court or his unexpected late arrival. It is argued that this was not done because the case before the learned Rent Controller was fixed for evidence and the tenant expected that such cases are generally taken late and that he would reach there well-in-time. The late arrival, it is argued, was not due to any deliberate negligence. The argument appears to be plausible. It cannot be imagined that an Advocate, who was involved in a personal case, would afford to let the proceedings be ex parte against him. In that view of the matter and especially because the learned Rent Controller himself modified the ex parte order partly, by allowing the tenant to make the statement and re-opened the case to some extent, I think the interest of justice demands that the entire ex parte proceedings should be set aside and it is not fair to set them aside only in part. I direct accordingly, with the result that the case shall have to be remanded to the learned Rent Controller for fresh proceedings in accordance with law.
7. One of the points argued by the learned counsel for the tenant was that the appeal of the landlord in the Court of the learned Addl. District Judge was not properly stamped as required by Khan Ghulam Hasan Khan v. Dr. Rashid Ahmad (PLD 1967 Kar. 35). According to this ruling, appeals under the Ordinance are liable to bear ad valorem court-fee under Schedule I Article 1 of the Court Fees Act. It was argued before me that taking note of this fact, I should direct the landlord under section 12 of the Court Fees Act to make good the deficiency of the court-fees before further proceedings in the Court of the learned Rent Controller start. From the side of the landlord, it was argued that Article 1 of Schedule I of the Court Fees Act is a residuary Article, and can apply only when no other provision of the Court Fees Act is applicable. The learned counsel for the landlord argued that according to Article 11 of Schedule II of the Court Fees Act, if the appeal is not from an order having force of a decree, then it is liable to be stamped under the said provision of law. He submitted that the orders of the Rent Controllers under the Ordinance do not have the force of a decree. He argued that there is a difference between orders which are executable like a decree on the one hand, and the orders which have the force of a decree. He drew my attention to an order, dated 3-3-67, passed by Farooqi, J., in S. A. O. No. 90 of 1967, where his Lordship had expressed doubts about the correctness of the decision in Khan Ghulam Hasan Khan v. Dr. Rashid Ahmad and referred the matter to the then learned Chief Justice for constituting a Full Bench on the subject.
The learned Chief Justice did not agree to refer the matter to the Full Bench because he was of the view that the decision of a Division Bench is binding on a Single Bench and there was, in these circumstances, no necessity to refer the case to a larger Bench. This order was passed by the learned Chief Justice on the administrative side of the file. One of the parties in that case then put, up a regular application on the judicial side also for getting the matter referred to a larger Bench.
The then Chief Justice (Mr. Justice Waheed-ud-Din Ahmad), who was one of the Members who had decided the case of Khan Ghulam Hasan Khan v. Dr. Rashid Ahmad, again turned down that request holding that the arguments advanced before him had not persuaded him to a view different from the one which had been taken by him in. Khan Ghulam Hasan Khan v. Dr. Rashid Ahmad. With reference to all this material, it was argued before me that the orders of a Rent Controller do not have the force of a decree of a Court and, therefore, ad valorem court-fee was not payable on them. Reliance was also placed on Muhammad Siddique v. Muhammad Sharif (L N 1969 Lah. 209). The point was not free from difficulty and besides hearing the arguments of the learned counsel for the parties, I called upon Mr. Fazle Mahmood Advocate, to address me as amicus curiae on the subject. I would have mentioned herein the arguments and the points raised before me, but 1 think that it is no longer necessary to do so, because Mr. Fazle Mahmood produced before me a judgment of the Supreme Court reported in Syed Sanvar Abbas v. Syed Muhammad Taqi Rizvi (1969 SCMR 689), where it was held that by virtue of section 17 of the Rent Restriction Ordinance, the order (of a Rent Controller) has the force of a decree passed by a civil Court. The judgment is a small one and can be reproduced here in extenso. It reads as :- "The Courts below have in terms of the consent order passed by the Additional District Judge, Karachi, as an appellate authority under the Rent Restriction Ordinance VI of 1959 on the 28th August 1965, directed the eviction of the petitioner from house No. 51-P. I. B. Colony, Karachi. Mr. S. A.
Nusrat appearing for the petitioner concedes that the grounds raised in opposition to the order for eviction have been rightly ruled out by the High Court, but maintains that the order dated the 28 August 1965, could not be enforced in execution proceedings as it had resulted in creating a fresh tenancy in favour of the petitioner."
The plea was not raised in the Courts below and on merits too has little substance. The compromise incorporated in the order of the appellate authority dated the 28th August 1965, stipulated that the petitioner will hand over possession of the house in his occupation to the respondent on the 30th September 1966. By virtue of section 17 of the Rent Restriction Ordinance, the order had the force of a decree passed by a civil Court. Execution of the order could, therefore, be sued out on and after the aforesaid date. The contention that as certain extraneous matters were also incorporated in the consent order it had the effect of a fresh agreement of tenancy is, therefore, devoid of force. At best the argument will apply to matters not arising for decision of the appellate authority in the application under section 13 but as to the stipulation for delivery of possession the matter precisely arose for determina--petition and the agreement on this point resulted in a consent order for ejectment of the petitioner after the 30th of September 1966.
The petition is dismissed."
Respectfully following the law declared by the Supreme Court I hold that the order of the learned Rent Controller having the force of a decree, appeal against the same was liable to be stamped as laid down in Khan Ghulam Hasan Khan v. Dr. Rashid Ahmad. It is conceded that the appeal of the landlord before the learned Addl. District Judge was not so stamped. Proceeding under section 12 of the Court Fees Act, I, therefore, direct that before further proceedings are taken before the learned Rent Controller, the landlord should be asked to deposit the deficiency of the court-fee and it is only after the same is done that the learned Rent Controller may proceed further with the case.
8. The upshot of the above discussion is that proceedings before the learned Rent Controller and the order of the learned Addl. District Judge, which is based thereon, are set aside. The appeal is accepted and the case is remanded to the learned Rent Controller for fresh trial and decision in accordance with law after giving due opportunities to the parties to prove their case. In view of the peculiar circumstances of the case, where the fault is not wholly of one party or the other, I think there should be no order as to costs.th