1. This constitutional petition calls in question the orders dated 6th of February, 1980 and 4th of March, 1980 passed by learned Rent Controller, Lahore which were maintained on appeal by learned Additional District Judge on 12th of March, 1980.
2. The facts necessary for the disposal of the present petition are that an ejectment petition was filed by the respondents No. 1 and 2 against the petitioner seeking his eviction from two shops bearing Nos. 28 and 71, Khanam Bazar, New Anarkali, Lahore on 18-3-1976. This petition was contested by the petitioner by denying the relationship of landlord and tenant. On 6-2-1980 the petitioner was proceeded ex parte and after recording ex parte proof the Rent Controller accepted the application for ejectment and directed him to be evicted from the shops in dispute.
3. On 3rd of March, 1980, an application for setting aside the ex-parte order of ejectment was filed by the petitioner which was supported by his affidavit as also the affidavit of his counsel, Agha Taj Muhammad, Advocate. This application was, however, summarily rejected by the Rent Controller on 4th of March, 1980 without issuing respondents. The appeal filed by the petitioner was also dismissed by the learned Additional District Judge, Lahore on 12th of March, 1980. Hence this writ petition.
3. The learned counsel for the petitioner has mainly challenged the order dated 4th of March, 1980 passed by the Rent Controller summarily dismissing his application for setting aside the ex parte order of ejectment. According to the learned counsel there was no justification for the Rent Controller to have rejected this application and in any case, the petitioner should have been allowed an opportunity to adduce evidence to prove his averments before the said application could be dismissed. The plea taken by the petitioner in the aforesaid application was that neither the petitioner nor his counsel was present on 15th of November, 1979 or 17th of November, 1979 when the petition was pending before Mr. Razi Abbas Bokhari, Rent Controller Lahore and their presence was wrongly marked. It was also stated in the application that the petitioner had no notice of the transfer of the ejectment petition to Mr. Nasim Sikandar, Rent Controller, Lahore and neither the petitioner nor his counsel appeared before the transferee Court. But unfortunately in the order dated 7th of January, 1980 which was in the hand of the Reader of the Court the counsel was shown to be present. It was, therefore, alleged that there was no justification for Mr. Nasim Sikandar Rent Controller to have proceeded in the absence of the petitioner on 5th of February, 1980 and to have passed an ex parte order of ejectment on 6th of February, 1980. This application was supported by an affidavit of the petitioner as also of Agha Taj Muhammad Khan, Advocate counsel for the petitioner at that time. The Rent Controller in his order dated 4th of March, 1980 observed that since in the order dated 7th of January, 1980, the presence of the learned counsel for the petitioner had been marked and a presumption of truth was attached to the judicial proceedings, the affidavit of the petitioner could not be relied upon and there was no justification for setting aside the ex parte proceedings. However, while passing the aforesaid order the learned Rent Controller did not take into consideration the affidavit filed by Agha Taj Muhammad Khan, Advocate and the learned Rent Controller appears to have been oblivious of the fact that such an affidavit had been filed alongwith the application. Furthermore, the presumption which attaches to the judicial proceedings, though very strong, is rebuttable and it isle open to a party to rebut the same by leading cogent evidence. In the circumstances of the case, it was not open to the Rent Controller to have summarily rejected the application but should have allowed the petitioner to produce the proof by leading evidence in support of the assertion being made by him. Reference in this connection may be made to Sharafat A.I v. Muhammad Boota and another (1985 CLC 1063) and Muhammad Hussain v. Mian Iqbal Salahud Din (1986 CLC 1441). The Additional District Judge while disposing of the appeal, also not adverted to this aspect of the matter. The orders of the Rent Controller as also of the Additional District Judge are, therefore, not sustainable.
4. For the foregoing reasons this writ petition is accepted. The order dated 4th of March, 1988 passed by Rent Controller and the order dated 12th March, 1980 passed by Additional District Judge, Lahore are declared to be without lawful authority.
5. The Rent Controller is directed to decide the application for setting aside the ex parte proceedings filed by the petitioner afresh after allowing the parties to produce their evidence within a period of six months, from today. No order as to costs.