' This appeal is purported to have been filed against two orders both dated 21-2-1987 passed by the Additional Controller of Rents, Clifton Cantt. By one order the learned Rent Controller has allowed the ejectment application of the respondent No,1 against the respondent No,2 with a direction to him to vacate the disputed premises and hand over peaceful possession to her within one month of the date of order. By the second order the learned Rent Controller has dismissed the application of the appellant made for joining him as party to the proceedings.
2. The facts, briefly stated, giving rise to this appeal are these. The respondent No,1 filed an application for ejectment against the respondent No,2 on the ground of default in payment of rent in respect of Bungalow No,23/A-II, Khayabane Shamsher, Phase-V, Defence Housing Society, Karachi, since 15-2-1984 till the filing of the ejectment application on 16-10-1986, besides the telephone bills and conservancy, sui-gas and electricity charges etc. The respondent No,2 failed to file the written statement and consequently, the learned Rent Controller passed an order on 6-1- 1987 directing the respondent No,1 to file affidavit in ex parte proof on 19-1-1987. On the last mentioned date an application for setting aside the order dated 6-1-1987 and for joining the appellant, Mian Munir Ahmed, as a party to the case was presented by the counsel for the appellant. The said application has been dismissed by the learned trial Court by his impugned order. Hence this appeal was filed by the appellant on 2-4-1987, which came up for hearing on 23- 4-1987 before this Court-when an order for pre-admission notice to the respondent was passed. In the meanwhile, the ad interim order staying the execution of the impugned order was also passed.
It was on 25-5-1987 when the case came up for hearing before Court after service of pre- admission notice on the respondent that the learned counsel for the appellant brought it to the notice of this Court that the appellant had filed a civil suit and that an application for order of injunction filed in that case was pending. It was contended on behalf of the respondent No,1 that the said suit was based on forged documents. The Court, however, ordered that the appeal be fixed for katcha peshi in August, 1987 even if the injunction application filed in the suit was not disposed of. Hence it has come up for hearing today.
3. I have heard the learned counsel for the appellant, Mr.Zahid Marghoob, as well as Mr.Mubarak Hussain Siddiqui, learned counsel for the respondent No,1. None appeared for the respondent No,2. I have also perused the lower Court record which shows that on 13-12-1986 Mr.Mohammad lqbal Shahin, Advocate, put in appearance in the trial Court and filed his power in favour cf respondent No,2 alongwith the application for extension of time for filing of written statement. The written statement was, as already stated, not filed and consequently the learned Rent Controller ordered ex parte proceedings against the respondent No,2 on 6-1-1987. Admittedly no application for setting aside that order for ex parte proceedings was filed by the respondent No,2 before the learned Rent Controller. It was the appellant abovenamed, who filed an application for setting aside of the order dated 6-1-1987 as well as for his being impleaded as a party to the proceedings as opponent No,2 as he was in actual physical possession/landlord of the demised premises. It is not mentioned in the application as to how and when the appellant came in actual physical possession of the demised premises. No explanation, it may further be, observed, was given for non-appearance of the respondent No,2 which led to the making of the order of ex parte proceedings against him. The appellant also did not claim to be the attorney or authorised person by the respondent No,1 to make an application for setting aside the order of ex parte proceedings passed against him. In this view of the matter, no objection can be taken to the impugned order of the learned Rent Controller on the application for setting aside the ex, parte proceedings made by the appellant before the learned Rent Controller.
4. Now with regard to the application made by the appellant for being joined as opponent No,2 in the rent case, it is to be noted that neither in the application nor in the affidavit filed in support thereof the appellant stated as to how and in what manner he came in occupation of the premises in dispute. The learned Rent Controller, however, dismissed the application on the ground that it was presented at quite a late stage. The Agreement to sell filed along with the memo of appeal as Annexure 'C', the execution whereof is denied by the respondent No,1, does not indicate that the vacant possession of the disputed premises was handed over by the respondent No,1 to the appellant. On the contrary, in the preamble it is stated " the vendor does not retain physical possession of the aforesaid property nor she is in a position to hand over its vacant possession to the vendee aforesaid and in view of the prevailing position it is mutually agreed by and between the parties and the vendor hereby permits and authorises the vendee to make necessary efforts for obtaining vacant possession of the demised premises from the tenants as aforesaid, expenses so incurred in such proceedings by the vendee aforesaid, shall be adjusted towards the agreed sale consideration of the property hereinafter referred."
5. Mr.Mubarik Hussain Siddiqui learned counsel for respondent No,1 stated that as a matter of fact ejectment proceedings were adopted by the respondent No,1 vide Ejectment Case No,806/85 before the Rent Controller, Karachi. Ejectment order against respondent No,2 was made on 12-11- 1984 and the appeal (FRA No,35/86) filed by Kishwar Zaman Khan against the above order of ejectment was also dismissed on 25-12-1986. The writ of possession was also ordered in the said proceedings. The respondent No,2, however, presented C.P.No,952/86 challenging the legality of the order passed by the learned Vth Rent Controller in respect of a property which was situated in the cantonment area. It was on 8-12-1986 that the said petition was allowed. However, realising the validity of the stand taken in the writ petition, the respondent No,1 filed an application for ejectment against Kishwar Zaman Khan (Rent Case No,869/86) on 16-10-1986 which has given rise to this appeal. He also submitted that since it was apprehended that. Kish war Zaman Khan would illegally transfer the possession of the shop to some person the respondent No,1 had as a matter of abundant precaution published a notice in daily Nawa-i-Waqt dated 19-10-1986 (Annexure 'E' to the counter-affidavit of respondent No,2 in reply to the application under section 24(2) of this appeal), warning general public not to enter into any agreement with respect -to the property in question which was owned by her. He also stated that the appellant was claiming possession through Kishwar Zaman Khan, the respondent No,2. The counsel also submitted that the appellant had not come with clean hands and as such he was not entitled to any relief. In support cf his contention he sought to place reliance on a decision reported in 1986 CLC 115.
6. Mr.Zahid Marghoob, in reply, submitted that the impugned order is against the principles of natural justice and for that reason it is liable to be set aside. The counsel also contended that since it was a question of title involved in the matter, the Rent Controller should have dismissed the case with a direction to the parties to go to the civil Court for specific performance or for determination of their title. In this connection he placed reliance on a decision reported of this Court 1986 CLC 148.
7. I have given consideration to the submissions made at the Bar and as already pointed above, I do not find any substance in this appeal. The appellant claims to be the owner of the property by virtue of agreement allegedly executed between him and the respondent No,1 for the specific performance thereof he has already filed a civil suit in this court. The matter will be duly investigated and thrashed out in the said suit. The relationship of landlord and tenant between the respondents Nos.1 and 2 is not in dispute and since the respondent No,1 despite having put in appearance before the learned Rent Controller chose to be proceeded with ex parte, no objection can be taken to the order of the learned Rent Controller for his eviction in an ex parte proceedings.
The refusal to set aside the order of ex parte proceedings is also proper inasmuch as no application for its setting aside was made by the respondent No,2 or by any person duly authorised by him. In so far as the appellant is concerned, since he claims to be the owner of the premises himself and he has already filed a suit in that behalf it will be open to him to obtain requisite prohibitory order against the respondent No,1 restraining her from executing the order of ejectment obtained in the rent case under appeal.
8. Under the aforesaid facts and circumstances of the case andfor the reasons recorded hereinabove I do not find any justification for admitting this appeal to regular hearing. It is, therefore, dismissed in limine.
9. These are the reasons for the short order of dismissal of even date passed upon conclusion of the hearing.
10. In view of the above order this application has become infructuous and as such it is dismissed.