This appeal is directed against the judgment, dated 31-10-1990 passed by IV-Rent Controller, Karachi (South) on an application in Rent Case No:3640/78 whereby the said application was dismissed and ex parte ejectment order passed against the appellant on 31-3-1984 was maintained mainly on the ground that, the ejectment order having been executed on 11-8-1987 and the demised premises (a godown) demolished, the only remedies available to the appellant/tenant were either a suit for recovery of possession or an application under section 12(2), C.P.C.
2. During the pendency of the appeal, the respondent and other co-owners have sold part of the plot to intervener Khair Muhammad Divari vide registered sale-deed, dated 19th July, 1992 whose application to be impleaded is also pending since 22-8-1992. The remaining portion of the plot (on a small portion of which was standing the godown of the appellant, was acquired by the K.M.C. For widening the road and has since been incorporated therein.
3. Counsel of the respondent/landlord last appeared in the Court on 14-10-1992 through Mr. Abbas Ali, Advocate and since then the respondent is unrepresentative.
4. 1 shall first take-up the application of the intervener. As stated in the last paragraph, the respondent has abandoned the defence of the appeal. Learned counsel of the appellant does not contest this application.-I would accordingly grant application under Order 1, Rule 10, C.P.C. (C.M.A.
No.889 of 1992) by consent of the appellant. The name of the appellant may be incorporated in the memo of appeal as respondent No.2.
5. I would now revert to the impugned order, dated 31-10-1990 whereby the application under Order 9, Rule 13, C.P.C. Moved by the appellant had been dismissed.
6. I am of th;. Considered view that the impugned order dated 31-10-1990 cannot be sustained and must be set aside. Learned Rent Controller had given no finding on the question as to whether, service of the appellant had been properly made before he had been proceeded against ex parte.
This was, in fact, the only point, which should have been decided because the decision of the fate of the ex parte order of ejectment depended upon the decision of this point. Instead, learned Rent Controller dismissed the application for setting aside the ex pane ejectment order on the ground that by then the order of ejectment had been executed, possession obtained by respondent No.1 and the demised premises demolished and the only remedy available to him was that he should either file a suit for possession or should file an application under section 122), C.P.C. This position is not tenable under the law. Learned Rent Controller must have decided the application under Order 9, Rule 13, C.P.C. On its own merits, that is, after taking into account as to whether the service of the appellant/tenant had been properly effected and whether he had been rightly proceeded against ex parte. If the Rent Controller comes to the conclusion that the service was not properly effected and he was not rightly proceeded against ex pane, then the application under Order 9, Rule 13, C.P.C. Deserves to be allowed irrespective as to whether the order of ejectment has been executed or not. .This view finds support from the judgment of the Lahore High Court reported in the case of Ahmad Hassan Khan v. Muhammad Arshad 1982 CLC 223 on which learned counsel for the appellant had relied. I would, therefore, set aside the impugned judgment and remand the case to the learned Rent Controller with the direction that he/she should re-hear the parties on the application of the appellant under Order 9, Rule 13, C.P.C. And decide it afresh. Before the record is returned to the learned Rent Controller, appellant should file the amended title of the memo of appeal incorporating the intervener as respondent No.2.