The dispute between the parties is about the tenancy of 2 kanals and 16 marlas of land situated at Lawrence Road, Lahore, which admittedly was transferred to respondent No. 1 by the Settlement Department. On the 4th January 1971, an application for ejectment of the petitioner from this property was filed by respondent No. 1 before the Rent Controller on grounds of default and requirement for personal use. This application was dismissed in default on the 1st of March 1973. At the time of dismissal, the learned counsel for the petitioner was present before the Rent Controller.
An application which purported to be under Order 1X, rules 4 and 5, C. P. C. Was filed by respondent No. I on 21st March 1973 for setting aside this order. Without issuing any notice to the petitioner, the Rent Con--troller vide his order dated the 5th April 1973, recalled his order of dismissal of the application in default on the ground that the counsel of the present respondents had not put in appearance- on account of misapprehension about the date of hearing, Thereafter, he issued notice of Palravi to the petitioner and his learner: counsel for the 18th May 1973. It appears from the record that the petitioner took it to be a notice for the application for restoration. For this reason he filed a reply to that application. He resisted the application on the ground that the order of dismissal was not due to any misunderstanding or the part of the respondent and her counsel about the date of hearing but was due to a compromise between the parties. It was alleged that as per compromise referred to above, the said respondent had agreed to sell the plot to the petitioner and she had already received a sum 4 Rs. 500 as advance. Since it was urged by the respondent in her application for restoration that she misunderstood the date of hearing to be 21st March 1975, instead of 1st of March 1973, and that this apprehension ,could be proved by the entry made in the Court Register by the Ahmad and in his own diary by the learned counsel, the petitioner averred that the order by which the Rent Controller fixed the date of hearing was itself clear and could not give rise to any misunderstanding. A replication was filed by the respondent to this reply.
2. Ultimately on the 23rd February 1974, the Rent Controller held that since the application for ejectment had already been restored on the 5th April 1973, no further proceedings in regard to that could be entertained. Thereafter, an application which is, in fact, an application for review was submitted to the Rent Controller by the petitioner, in which he challenged not only the order dated the 5th April 1973, but also the order dated the 23rd February 1974. But this application was also dismissed on the 20th July 1974. The above two orders have now been challenged by this writ petition which was filed on the 27th August 1974.
3 In this petition, on the factual side, reliance is placed upon the alleged compromise between the parties. It is further alleged that the petitioner was allowed to file a reply to the application for restoration since the learned Rent Controller himself had treated the order dated the 5th April 1974, to be a nullity as it was passed without any notice to the petitioner.
4. The learned counsel for the petitioner reiterated these arguments before me and further argued that since the application of respondent No. 1 for restoration was made under Order IX, rules 4 and 5, the respondent had played a fraud upon the Rent Controller and secured the order of restoration by making the Court to assume that on the 1st of March 1973, none of the parties were present. He further argued that the dismissal order having been passed under Order IX, rule 8, C. P. C. The application for restoration was competent only under Order IX, rule 9, C. P. C. The order of restoration could not be passed without notice to the petitioner. When his attention was drawn to the authoritative pronounce--ment of the superior Courts of the country that the Code of Civil Procedure is not applicable to proceedings before the Rent Controller, he argued that a notice of the application for restoration should have been served upon the petitioner on the principle of audi alteram partem.
5. The learned counsel for the respondents on the other hand raised some preliminary objections.
He argued that the writ petition was barred by ]aches since it was filed after 12 years of the passing of the restoration order. He also argued that the petitioner had another alternative adequate remedy since he can raise all these points in an appeal that may be filed against the final order in the application for ejectment. He further argued that no prejudice was caused to the petitioner by the restoration nor any such prejudice was alleged. On merits he urged that the Code of Civil Procedure is not applicable to the case and since the learned Rent Controller could fix his own procedure, he had the jurisdiction to pass the order of restoration in the manner in which he has passed it. In any case, he argued that it cannot be said that the order is, in any way, without jurisdiction.
6. The application for restoration, as stated above, was passed upon a plea of misunderstanding about the date of hearing and in that connection reliance was placed in the application upon the register maintained by the office of the Rent Controller as well as the diary of the learned counsel.
The order of the learned Rent Controller proves that he was satisfied in this case that the learned counsel for the respondents had some misapprehension about the date.
7. The entire case of the petitioner appears to rest upon the com--promise between the parties. In this connection he has relied upon a photostat copy of a receipt dated the 28th July 1972, purporting to have been executed by respondent No. 1 in favour of the petitioner in acknowledge-- ment of the receipt of Rs. 500 out of the advance money of Rs. 10,000 settled for the sale of the disputed plot. It is stated there that out of the advance money a sum of Rs. 9,500 was still due. It is urged that at the time of the execution of the receipt there was a compromise that the respondents shall get the application dismissed in default and it is for this reason that respon-- dent No. 1 had absented himself on the 1st of March 1973. But the record shows that after the execution of the receipt and before the 1st of March 1973,. The case came up before the learned Rent Controller on three different dates i.e. 31-10-1972, 13-11-1972 and 27-1-1973. On this last mentioned date the case was adjourned to the 1st of March 1973, for the evidence of the petitioner.
If what the learned counsel has stated had been true the petitioner soon after the alleged compromise would have urged respondent No. 1 to act according to the alleged compromise and either withdrew the application or get it dismissed in default, or would have brought this compromise to the notice of the Rent Controller. His silence on the three dates establishes the hollowness of the contention raised now.
8. Confronted with this position the learned counsel for the petitioner tried to explain that after the 28th July 1972, there arose a fresh dispute between the parties because the petitioner claimed deduction from the settled price of Rs. 72,000 on the ground that some portion of the plot in dispute was included in a public road. The learned counsel for the respondents, on: the other hand, stated that the agreement to sell had fallen through on account of the petitioner.
The explanation given by the learned counsel for the petitioner proves the statement of the learned counsel for the respondents. It is, therefore, clear that the only ground on which the petitioner insisted upon challenging the right of respondent No. I to the re-call of the order of dismissal of the application in default is not a valid or correct ground. On the other hand, it appears that the petitioner has not come to this Court with clean hands since he has based his case on absolutely incorrect allegations.
10. The other allegation that the Rent Controller had, while allowing the petitioner to submit a reply to the application for restoration, treated the order of restoration dated the 5th April 1973, as a nullity, is also false. It is clear from the record that the petitioner had himself treated the notice for Pairavi to be a notice for restoration of the case; for this reason he submitted a reply to the restoration application. The respondent was allowed to file a replication under some misunderstanding. It appears that even the learned counsel for the respondents was not conscious. At that time that the application for restoration had already been allowed on the 5th April 1973. Once this matter, was brought to the notice of the learned Rent Controller, he held that this question could not be re--opened it view of the earlier order. Clearly, therefore, there was no occasion for the learned Rent Controller before the 23rd February 1974 to apply his conscious mind to the question about the validity of the order dated the 5th April 1974. This question cropped up before him on that date and he held that this matter had already been decided, which means that according to him the order was not a nullity. This allegation is also, therefore, incorrect and has been made with ulterior motives. From this also it is clear that the petitioner has not come to the Court with clean hands.
11. It is not necessary to go into the question of laches because the ultimate order dated the 23rd February 1974 was passed within six months of the writ petition. I, however, agree that the petitioner had an adequate remedy before him. The propriety of an ex parte order setting aside and order of dismissal in default may be questioned at the hearing of the appeal. (Janat and others v.
Kamilshah and others AIR 1920 Sind 34 . He should have waited till a final order was passed by the Rent Controller on the application for' ejectment. If this order had been against him, he could have challenged the earlier order also in that appeal. The writ petition is absolutely misconceived and appears to have been filed in order to delay the disposal of the matter before the Rent Controller.
12. Lastly, I may deal with the point raised by the learned counsel about the jurisdiction of the Rent Controller. It is not seriously contested that the Code of Civil Procedure is not applicable to proceedings before the Rent Controller. In fact, the learned counsel for the petitioner himself relied upon the two cases in which this proposition has been dealt with as well settled. These cases are
(1) Din Muhammad v. Hidayat Hussain PLD 1968 Lah. 207; and
(2) Muhammad Aslam v. Khurshid Begum PLD 1972 Lah. 603.
Their Lordships of the Supreme Court in the case of Khadim Mohy-ud-Din and another v. Ch. Rehmat Ali Nagra and another PLD 1965 SC 459 , had observed that under section 16 of the Ordinance the Rent Controller bad been given certain powers under the Civil Procedure Code but he is not bound in every case to follow the procedure as laid down in the Code of Civil Procedure. It was further held that while performing his functions under the Ordinance, he does not act as a Court but acts in a quasi-judicial capacity. The Rent Controller, therefore, is not bound by the procedure of the Civil Procedure Code and it is open to him to evolve his own procedure. The only condition is that such procedure must not be contrary to the principles of natural justice which is deeply ingrained is section 13 of the Ordinance itself.
13. The next question is whether the principle of natural justice applies to this application. I do not see any ground to answer this question in favour of the petitioner. It has been held by the majority of the Full Bench in Muhammad Aslam v. Khurshid Begum that the order setting aside or re-calling an ex parte order or for the matter of that an order of dismissal in default is not an order passed in review. It is merely a re-hearing. This order can be passed, inter alia, if the applicant proves before the Rent Controller that he had sufficient ground for claiming a re-hearing. The general policy of the Courts also is to decide a matter on merits rather than decide it ex parte. The argument of the petitioners' learned counsel is based upon Order IX, C. P. C. But even under the Code of Civil Procedure, notice to the opposite-party is not always necessary in matters of restoration applications. It is conceded that no notice would be required if the order of dismissal in default had been passed in the absence of both parties. A notice to defendant is not necessary for restoration under Order IX, rule 4 Laljit Singh and others v. Pyarelal and others AIR 1956 All. 714, Birj Lal v. Bua Ram and others 17 I C 292, Ramji Lal v. Kesheo Ram and another AIR 1923 Oudh 55. But Order IX, rule 9(2) provides that no order shall be made under Order IX, rule 9(1) unless notice of application has been served on the opposite-party. Similarly Order IX, rule 14 lays down that no decree shall be set aside on any application unless notice thereof has been served on the opposite-party. The object of provision of notice to opposite-party in these two cases and of absence of such provision in Order IX, rule 4, C. P. C. Is self-evident. One reason no doubt is that the opposite-party had deprived himself of a right to -such notice by his conduct in absenting himself on the date of hearing. But there is a more important reason. The dismissal in default of a suit under .Order IX, rule 3, C. P. C.
Does not vest the opposite-party with any right. Such party is not immune from further litigation on the same cause of action since Order IX, rule 4 specifically provides that despite dismissal of his suit in default under rule 3 the plaintiff may bring a fresh suit, no doubt, Subject to the law of limitation. The continuance of litigation by a fresh ,suit on the same cause of action is, however, barred under Order IX, rule 91 if the order of dismissal of the suit in default is covered by Order IX, rule 8, C. P. C. Similarly an ex parte decree also terminates the litigation and operates as res judicata. Dismissal in default of a suit under Order IX, rule 8 or the passing of ex pane decree thus confers certain definite right upon the defendant or the plaintiff as the case may be of which he may inter alia be devested by the order of restoration of the suit. The principle o natural justice has, therefore, no applicability to an application under Order IX, rule 4 but it is applicable to cases of restoration of suit under rules 9 and 13, C. P. C.
14. This principle appears to have been followed in Order XLI, rule 19. Since there is no bar against filing of another appeal (provided the period of limitation has not expired), there is no specific provision for notice to respondent. It can be argued that such notice is necessary on the principle ..Of Order IX, rule 9(2) read with subsection (2) of section 107(2), C. P. C. This subsection provides that "the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein". The Appellate Court according to this section has the same powers as the original Court but the liability about performance of duties is not as comprehensive and exhaustive. It is qualified by the expres--sion, 'as nearly as may be'. The duty imposed by Order IX, rule 9(2) needs be performed in cases of restoration of appeal only if it can be applied to Order XLI, rule 19, C. P. C. I am firmly of the view that it cannot be so applied since the principle of Order 1X, rule 9 (1) about bar of a second suit on the same cause of action cannot be read in rule 19 of Order XLI, by virtue of section 107(2). C. P. C. In Birj Lal v. Bua Ram and others, it was hold that a notice is not necessary for the restoration of an appeal dismissed for default owing to the absence of both the parties. In Mst. Kalawateir v. Pundit Dayanand AIR 1937 All. 362, it was held :- "There is nothing in the Civil Procedure Code which provides that the application should expressly implead a particular party . . . . If no names are mentioned and the record enables the Court to ascertain the names of persons to whom notice should be given and notice is in fact given, the application cannot be dismissed merely on the ground that names of some of the respondents were not mentioned in the heading of it . . . ."
"The portion underlined* by me proves that in the view of the learned Judge who decided the case, in some cases, the appellate Court may be justified in not sending any notice to the respondents on an application by the appellant for setting aside the order of dismissal of the appeal in default.
15. The principle of natural justice can apply only to an application for ,restoration which may have the effect of devesting the opposite-party with any right vested in him. But no right vests in a defendant or respondent by the dismissal of a suit or appeals in default if the plaintiff or appellant has a right to file a fresh suit or appeal on the same cause of action provided such p right is not barred by the law of limitation. In the case of an application for ejectment of a tenant under the West Pakistan Urban Rent Restriction Ordinance, 1959, no finality attatches to the order of dismissal in default. It is open to the applicant landlord in such a case to file another application on the same cause of action, since Order IX, rule 9, C. P. C. Is not applicable. There is no period of limitation either for such successive application. The petitioner was not therefore, in any way prejudiced by the setting aside of the order of dismissal of the ejectment application in default. The Rent Controller was, therefore, legally justified in evolving the procedure of restor--ing the ejectment application without notice to the petitioner and thus in avoiding multiplicity of proceedings.
The petition ,has no force and is dismissed with costs.