The petitioner through this writ petition seeks a declaration that an order dated 30-7-1978 of the learned Rent Controller, Lahore, respondent No.3, ordering the ejectment of the petitioner from a shop and a judgment dated 18-1-1982 of the learned Additional District Judge, Lahore, upholding the same are without lawful authority and of no legal effect.
2. Mrs. Zarin Anwar Amin, respondent No.l, filed an application under section 13 (2) of the West Pakistan Urban Rent Restriction Ordinance, 1959 on 25-11-1976 'before the learned Rent Controller, Lahore, for the ejectment of the petitioner from Shop No.6, Mansoor Commercial Zone, Gulberg-III, Lahore. The ejectment was sought on the ground of default in the payment of rent at the rate of Rs.500 p.m. From July 1975, personal requirement as to the shop in good faith, for installing a lift for the first floor and also to construct a stair' case for the flat and the nuisance which was being caused by the petitioner to the other occupants of the building.
3. The petitioner contested the ejectment application by controverting the averments therein and maintaining that the petitioner had been offering the rent regularly to respondent No.l but she had deliberately refused to receive the same whereafter the petitioner deposited the rent upto date with the permission of the Rent Controller. During the proceedings, the Rent Controller passed an order under Section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 directing the petitioner to deposit the arrears of rent from 1-7-1975 to 28-2-1977 at the rate of Rs.500 p.m.
Totalling to Rs.4,000 before 27th of April, 1977 and also to deposit the current rent before 15th of each month. The respondent through her counsel on 28-5-1977 submitted an application with a prayer to strike off the defence of the petitioner as it had violated the order in respect of payment of rent relating to August, September and October, 1975. The application was replied and the mistake of the Presiding Officer was pointed out in the reply that the amount of Rs.4,000 as arrears was the result of miscalculation; it should have been the amount of Rs.10,000. The error was rectified.
4. The learned Rent Controller fixed 26-7-1978 for the evidence. The respondent No.l was present with a witness but the petitioner or its counsel were not present. The learned Rent Controller repeatedly called out the case but none on the side of the petitioner turned up, so the statements of respondent No.l and her witness were recorded. He observed that the application for the ejectment could be decided in the absence of a rebuttal yet as the site plan had not been filed which had also been objected to, so he adjourned the case to 27-7-1978 for filing the same. In the closing order he recorded that due to the absence of the petitioner the proceedings against him were to be taken as ex parte. On 27-7-1978, the learned counsel for the petitioner filed an application for setting aside the ex parte order stating that the counsel for the petitioner was busy firstly in the Court of Mr. Justice Muhammad Afzal Lone and subsequently before the Additional Commissioner, Lahore. The counsel deputed his clerk to request the learned Rent Controller for a short adjournment. Thereafter, he went to his chamber where he remained stuck because of the heavy rains till 2.15 p.m. He could not get any conveyance. When he reached the Court of the learned Rent Controller he learnt that the case was fixed for 27-7-1978. However, on 27-7-1978 he came to know that the proceedings had been taken ex parte whereby the evidence of respondent No. l had been recorded. The petitioner could not personally appear before the learned Rent Controller because that was a limited company and the Executive Director of which had gone to Rawalpindi. He moved an application for setting aside the order as to the ex parte proceedings on the above-said date. The site plan Ex. A1 was filed on the same day by respondent No.l, 29-7-1978 was fixed for reply to the application. On 29-7-1978, the arguments were heard and the case was adjourned to 30-7-1978 for orders. On 30-7-1978, the application made for setting aside the order was dismissed as not disclosing a sufficient cause and on the same day the learned Rent Controller ordered the ejectment of the petitioner on the ground of default in the payment of rent deciding the other two grounds against respondent No.l
5. The petitioner took an appeal therefrom which came to be decided by the learned Additional District Judge, Lahore, who dismissed the same on 10-11-1979 holding that the petitioner had no case on merits as it was established a defaulter. It did not comply with the order passed by the learned Rent Controller, Lahore under Section 13 (6) of the Went Pakistan Urban Rent Restriction Ordinance, 1959.
6. The petitioner filed an SAO No.688/79 in this Court. The learned Judge of this Court observed that was not permissible for the learned Additional District Judge to have relied upon the alleged violation of order under Section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance in rejecting the petitioner's appeal. The impugned order suffered from an inherent defect and the conclusion reached by the learned Additional District Judge, therefore, could not be upheld as he had failed to determine the material proposition regarding which the parties were at issue. The controversy between the parties before the learned Rent Controller was that whether there was any sufficient cause for the absence of the petitioner and its counsel on 26-7-1978 when the petitioner was proceeded against as ex parte). He remanded the case to the learned Addl. District Judge to resolve the real controversy.
7. The learned Additional District Judge on remand confined himself to the question this Court directed to decide. The learned Additional District Judge observed that the learned counsel after attending the High Court did attend the Court of Additional Commissioner, Lahore but never bothered to appear before the learned Rent Controller whose court fell first on the way to the Court of the Additional Commissioner, Lahore. After attending the Court of the Additional Commissioner, Lahore, the learned counsel for the petitioner went back to the chamber and did not appear before the learned Rent Controller, where he remained stuck allegedly due to the heavy rain and could not get any conveyance. According to the learned Additional District Judge, the learned Rent Controller had rightly observed that since the evidence of respondent No.1 was in attendance on 26-7-1978, the petitioner was interested in delaying and getting the case adjourned. That was the reason that neither any representative of the petitioner nor its counsel appeared before the learned Rent Controller on 26-7-1978 and allowed the case to be proceeded as ex parte possibly in the hope that the order of ex parte proceedings would be set aside on the application to be moved in that behalf. He was also in agreement with the learned Rent Controller that there was nothing to explain as to why after attending the Court of the Additional Commissioner, Lahore, the learned counsel for the petitioner went back to his chamber and did not appear in the case. There was also nothing to explain as to why some representative of the petitioner failed to appear before the learned Rent Controller on 26-7-1978 when the petitioner was proceeded against as ex parte. In his view the learned Rent Controller had correctly rejected the application for setting aside the ex parte proceedings. After rejecting the said application, the learned Rent Controller rightly ,proceeded to order the eviction of the appellant on the ground of default in the payment of rent from 1-7-1975 upto the filing of the application for ejectment on 25-11-1976. As respondent No.l and her other witness were not cross-examined, therefore, there was nothing to discredit their testimony. As to the default and a dispute between the parties regarding the payment of rent, in the absence of the defence, the evidence adduced by respondent No.l' stood practically unrebutted, therefore, the eviction was rightly ordered by the Rent Controller on the ground of default as to the payment of rent. The learned Additional District Judge dismissed the appeal as being without any merit vide his judgment dated 18-1-1982.
8. The only contention raised by the learned counsel for the petitioner here is that the proceedings were fixed for 27th July, 1978 when yet an item of the evidence i.e. a site plan was to be offered by the landlady and the evidence was not closed by the time when an application for setting aside the ex parte order was filed by the petitioner. If the learned Rent Controller was not minded to set aside the proceedings at least that was open to the petitioner after the landlady closed her evidence to join the proceedings for which the learned Rent Controller was in law duty bound to give a date for recording the evidence of the petitioner. Despite the appearance of the petitioner it was not precisely allowed to join the proceedings from the stage it appeared, so that had its impact upon the ejectment order passed subsequently, as such the order of ejectment passed by the learned Rent Controller was without lawful authority and of no legal effect as the petitioner had not been heard.
9. The learned counsel for respondent No.l while opposing the writ petition has submitted that the writ petition is not competent as no legal ground has been taken within it, there are concurrent findings of fact not assailable in a writ petition. The petitioner has not come up with clean hands.
The conduct of the writ petition during the proceedings before the learned Rent Controller disentitles it from claiming any legal assistance as invoked through the constitutional jurisdiction.
The receipts produced by the writ petition show that the petitioner has not been depositing the rent regularly month wise, thus the default in any sense cannot be overlooked.
10. There is nothing on the file of the learned Rent Controller to indicate that the petitioner apart from pressing the application for setting aside the ex parte proceedings desired to join the proceedings from the stage of its appearance. In the memorandum of appeal filed by the petitioner from the ejectment order, the main emphasis of the petitioner was as to the validity of the rejection of the application for setting aside the ex parte proceedings by the learned Rent Contoller. It did not anywhere state that it wanted to join the proceedings at the time of its appearance before the learned Rent Controller but was not allowed to do so by him. For the first time in the SAO before the learned Judge of this Court the petitioner addressed A that in law the petitioner could join the proceedings at any stage and the learned Rent Controller could not have denied to the petitioner his right to participate in the proceedings even if he was not inclined to recall the ex parte order against which the learned counsel for respondent No. l replied that the petitioner never requested the learned Rent Controller to permit him to join the proceedings from the stage of its appearance, therefore, that was not open to him to urge the same.
The learned Judge of this Court did not give any finding in this behalf while observing that "the parties were at variance before the learned trial Court on the point whether the absence of the appellant's learned counsel when the case was called on for hearing could be condoned." So, to resolve that issue the case was remanded to the learned Additional District Judge by the learned Judge of this Court, at the same time expressing that that shall be open to the parties to raise their respective pleas before the learned Additional District Judge. The controversy before the learned Additional District Judge rested with the question that whether there was sufficient cause for the absence of the petitioner and its counsel on 26-7-1978 when the proceedings were taken against as ex parte which ultimately formed the basis for the eviction order passed by the learned Rent B Controller on 30-7-1978. The plea as to whether the petitioner wanted to join the proceedings as of entitlement from the date of appearance before the learned Rent Controller was not raised before the learned Additional District Judge who while dealing with the above-said point positively expressed that no other point was urged before him.
11. Now the question is that whether such a point can be raised within the scope of this constitutional petition. Under the Rent Restriction Ordinance, 1959 the judgment of the appellate Court is ordinarily to be regarded as final being that of a Tribunal of exclusive jurisdiction. The petitioner should have raised the contention raised here before the learned Additional District Judge. It cannot be allowed to be raised within this constitutional petition as the same cannot be regarded in continuity to the proceedings gone before.
12. There is another fact which is to be noted that during the pendency of this writ petition the petitioner which enjoyed the status quo has not been regularly tendering the rent monthwise, as the deposit receipts show from 13-11-1984 onward to 17th May, 1986, the petitioner deposited Rs.500 on 13-11-1984. Then there is no tender monthwise. On 20-2-1985 in lump sum a sum of Rs.2,000 was deposited. Then against there was no regular deposit and on 4th March, 1986 a sum of Rs.65,000 was deposited, then again no rent for the following month was deposited and on 17th May 1986 Rs.1,000 were deposited as rent. Then onward the petitioner has been depositing Rs.500 each month upto 2-4-1987. The deposit of the rent as shown above in lump sum does denote the default one way or the other.
'13.This writ petition is dismissed being without any substance but without any order as to costs.