1. ' ZAFFAR HUSSAIN MIRZA, J.---This is an appeal from the judgment of a learned Single Judge of the Sindh High Court, dated 22nd May, 1986, whereby the First rent appeal of the present appellant under section 21 of the Sindh Rented Premises Ordinance, 1979, was dismissed.
2. ' The controversy in the present appeal arose in the form of application by the appellant under section 12(2) read with section 141, C.P.C., before the Rent Controller, Karachi, seeking to have the ex parte order of ejectment, passed by the Rent Controller, dated 16th September, 1982, recalled on the ground of fraud and misrepresentation.
3. ' The facts forming the background of this controversy briefly stated are that the appellant is the tenant of the respondent since the year 1971, in respect of premises comprising a shop and two rooms above the shop in a building known as Khattak Manzil, Nathan Khan Goth, Faisal Colony, Karachi. On 28th May, 1981, the respondent filed ejectment application before the Rent Controller against the appellant seeking his eviction on the ground of default in the payment of rent from 1st July, 1980 to 30th April, 1981, and on the ground of personal requirement of the shop for the use of his son. The case as pleaded in the application by the respondent was that the shop premises and the portion on the first floor had been separately let out, each for Rs,250 per month. According to the appellant before he filed the written statement, the dispute between the parties over the ejectment of the appellant was settled between them on 15th July, Leave was granted in order to consider the question of law whether the 1981, through the intervention of Syed Khaudae Dost Sahib, a respectable elder of the community to which the parties belong who held Jirga on 14th July, 1981. In that settlement it was agreed according to the respondent, that the respondent will withdraw his ejectment case, restore the electricity etc., as well and that the rent of the premises will be increased from Rs,250 to Rs,300. This settlement is alleged to have been reduced into writing by the Jirga in a document, dated 15th July, 1981, to which both parties subscribed in their own hands alongwith the signature of Syed Khaudae Dost Sahib, the Arbitrator. It appears that a photo copy of this settlement was submitted before the learned Rent Controller on 29th August, 1981, with an application by the appellant. However, it would appear that no formal request having been made by the parties for recording the compromise and disposing of the case in terms thereof, the learned Rent Controller kept the matter pending before himself with the result that on 16th September, 1981, the appellant filed a written statement in which also a reference was made to the compromise agreement between the parties, dated 15th July, 1981, which was already placed on record.
4. ' In the events that happened, it appears that the Court of the learned, Rent Controller remained vacant without a Presiding Officer being posted therein. However, learned Rent Controller who took over appears to have proceeded with the case ex parte in the absence of the appellant and received affidavit-in-evidence of the respondent. Taking into consideration the one-sided evidence of the respondent and the written statement filed by the appellant, as well as the compromise agreement between the parties, dated 15th July, 1981, he passed an eviction order on both grounds urged by the respondent vide his order, dated 16th September, 1982.
5. ' The appellant did not file any appeal against the aforesaid order of eviction passed against him.
6. On 6th January, 1983, he submitted an application under section 12(2) read with section 141, C.P.C., with a prayer 'that the said order of eviction be set aside as it was procured by the respondent through fraud and misrepresentation. The learned Rent Controller, dismissed this application by his order, dated 20th October, 1983, on the ground that under section 19(2) of the Sindh Rented Premises Ordinance, 1979, Rent Controller is empowered to proceed ex parte against the tenant, in case no written statement is filed without a reasonable excuse and once such ex parte order is passed the Controller is left with no power to rescind the same.
7. ' Being aggrieved the appellant herein challenged the aforesaid order of the Rent Controller in an appeal which was dismissed by a learned Single Judge of the Sindh High Court by the impugned judgment holding that the C.P.C. Is not applicable to the proceedings before the Rent Controller and accordingly the application under section 12(2) thereof, was not maintainable and since the eviction order had attained finality, the Rent Controller had rightly dismissed the application. provisions of section 12(2) of the C.P.0 are applicable to cases decided under the Sindh Rented Premises Ordinance, 1979.
8. ' We have heard Mr. Khalid Ishaque and Mr. Ali Akbar, learned counsel appearing for the appellant and the respondent respectively. Mr. Ali Akbar has submitted that in view of the latest pronouncement of this Court in Muhammad Yasin v. Sheikh Ghulam Murtaza and another PLD 1988 SC 163 the question of law noted in the order granting leave seems to have been settled and, therefore, he concedes that the application under section 12(2), C.P.C., was competent before the learned Rent Controller for setting aside the ejectment order passed by him on the ground of fraud and misrepresentation. However, he submits that on the merits the question may be decided by this Court whether the appellant has succeeded in establishing that the order passed against him was procured by fraud and misrepresentation. Mr. Khalid Ishaque has referred to us a number of decisions in which according to him this Court either proceeded on the assumption that section 12(2) was applicable to proceedings before the Rent Controller or held that the principles underlying the C.P.C. Can be adopted by the Rent Controller, in adjudicating the disputes or executing the orders passed under the Rent Ordinances. The case of Muhammad Yasin (supra) dealt with section 17 of the Rent Restriction Ordinance, 1959, as applicable to the Province of Punjab, in which by fiction of law order of ejectment passed under section 13 thereof, is to be executed by the Controller as if it were a decree of the Civil Court. Therefore, while holding that the provisions of Order 21, C.P.C., would be applicable due to the statutory fiction of the law giving the order passed by the Rent Controller the status of the Civil Court's decree, the Court proceeded on the peculiar wording of the statute in regard to the powers of execution possessed by the Rent Controller.
9. Therefore, this is not a direct authority relevant for decision of the question so far as the proceedings under the Sindh Rented Premises Ordinance are concerned. We may refer to Muhammad Hussain Tahir v. Ashfaq Hussain (1989 SC MR 258), cited by Mr.Khalid Ishaque in which this Court proceeded on the assumption that section 12(2) of the C.P.C. Was applicable to proceedings under the Sindh Rented Premises Ordinance. In Messrs Bambino Ltd. v. Messrs Selmor International Ltd. (PLD 1983 SC 155), it was held that the C.P.C. Is not in terms applicable to the proceedings before the Rent Controller by its own force, but the Rent Controller was free to follow equitable principles contained in C.P.C., and this dictum was applied to the provisions of Sindh Rented Premises Ordinance. There cannot be any doubt that section 12(2), C.P.C. Is in recognition of the well-settled principle that every Court or Tribunal has inherent jurisdiction to rescind or recall a void order passed by itself. In The Chief Settlement Commissioner v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331, it was held that the preponderance of judicial authority supports the proposition that every authority, Tribunal or Court has power to even suo motu recall or review an order obtained from it by fraud, on the general principle that fraud vitiates the most solemn proceedings, and no party should be allowed to take advantage of his own fraud. On this principle in that case the Court held that there can be no distinction between the powers avail able in this behalf to a Court of general jurisdiction and a Court or Tribunal of a special or limited jurisdiction, for in either case the effect of fraud is the same and the duty to undo that effect must lie on the authority on which fraud is practised. Therefore, on the rule that the equitable principles of C.P.C.
10. Can be invoked by the Rent Controller and that fraud vitiates the proceedings of a Court or a Tribunal, there can be no escape from the conclusion that the Rent Controller under the Sindh Rented Premises Ordinance has the power to set aside any order which has been secured by practising fraud or misrepresentation upon him.
11. ' In this view of the matter the application submitted by the appellant before the Rent Controller, Karachi, with a prayer to set aside or recall the order of ejectment passed by the Rent Controller, dated 16th September, 1982, was maintainable and the learned counsel for the respondent rightly concedes so although we have reached the same conclusion on somewhat different grounds. In the result we allow this appeal and remand the case to the Rent Controller to dispose of the aforesaid application of the appellant at an earlier date on merits, after giving the parties due opportunity to adduce evidence. In the circumstances we make no order as to costs.