1. ' This is an appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter called the Rent Ordinance) directed against an order dated 8-9-1994 passed by learned IIIrd Senior Civil Judge and Rent Controller, Karachi-Central in Rent Case No,682/1993, Mst. Bilquees Fouzia v. N.M.
2. Saroor, whereby an application under Order 9, rule 13, C.P.C. Was dismissed hence this appeal.
3. ' Brief facts of the case are that respondent Mst. Bilquees filed ejectment application against the present appellant/tenant on the ground that she needed the said premises in good faith for bona fide personal use for herself and for her son Mirza Muhammad Abdullah. The summons was issued to the appellant/tenant who was served and appeared through his counsel Mr. Zubair Ahmed who filed his Vakalatnama and the rent case was adjourned to 9-11-1993 for filing written statement.
4. However, the matter came up before the learned Rent Controller on 1-12-1993 when none appeared for the appellant/tenant and the written statement was also not filed, therefore, the Rent Controller ordered that the case to proceed ex parte against the appellant/tenant and the matter was adjourned to 15-12-1993 for ex parte proof and ultimately on 26-2-1994 affidavit-in-ex parte proof was filed and ejectment application was allowed on 20-3-1994. The appellant/tenant filed an, application under Order 9, rule 13, C.P.C. On 29-8-1994 which was dismissed on 8-9-1994 against which order the present appeal has been preferred.
5. ' I have heard learned counsel for the parties and perused the record and proceedings of the case and the case-law cited.
6. ' Contention of Mr. A. Hameed Lakhani, learned counsel for appellant is that the learned Rent Controller has erred in law in not allowing his application filed by the appellant under Order 9, rule 13, C.P.C. As sufficient cause for setting aside the order of ejectment was made out. He has contended that the appellant was completely unaware of the order of ejectment passed against him. He has placed reliance upon Mst. Noor Bai v. Waris Masood (1984 CLC 3030), Jan Muhammad v. Mst. Fatima Bi (1979 CLC 599) and Mst. Zubaida Bai v. IInd Rent Controller, City Court, Karachi, (PLD 1981 Kar.82) in support of his contentions.
7. ' Mr. Raja Shamzuzzaman, learned counsel for respondent has argued that the appellant had filed an appeal against an order dated 8-9-1994 whereby an application under Order 9, rule 13, C.P.C.
8. Was dismissed but has not challenged the order of ejectment which was passed on 20-3-1994, therefore, the appeal filed was incompetent and not maintainable. He has further argued that the appellant/tenant was duly served and he put in appearance through his counsel to whom time was granted to file written statement but the same was not filed and the appellant and his counsel remained absent, consequently ex parte proceedings were ordered by the Rent Controller and the respondent filed ex parte proof which ultimately ended in the eviction of the appellant as per order dated 20-3-1994. He has further contended that the order could be set aside under Order 9, rule 13, C.P.C. Only when it is shown that service on the appellant/tenant was not effected or that he was prevented by sufficient cause but in the instant case no sufficient cause has been shown, therefore, the impugned order is legal and proper and no interference in this appeal is called for considering also that this appeal has been filed after seven months of the order of eviction and thus was time-barred as well as and further that. No affidavit of the learned counsel Mr. Zubair Ahmed has been filed as to why he did not appear and failed to file written statement before the Rent Controller. He has placed reliance upon Mst. Shirin Begum v. Habib Bhai (1988 SCM R 670), Muhammad Ilyas Khan v, Hameeda Sultana Begum and 4 others (1994 CLC 1129), M/s. Radco International v. State Life Insurance Corporation of Pakistan (1994 CLC 580), M/s. Niazi Institute of Science Organization v. Mst. Anwar Zamani (1987 CLC 1804), Muhammad Panah v. Ali Nawaz and others (1989 CLC 630) and Mst. Sardaran Begum v. Muhammad Fazil and another (1993 CLC 2303) in support of his contentions.
9. Appellant in an application under Order 9, rule 13, C.P.C. Has stated A that his Advocate Mr. Zubair Ahmad did not inform him about the proceedings of the case hence the appellant was unaware and that on 25/26-7-1994 at night time when the appellant/tenant for the first time came to know about the said ex parte judgment and that no notice of the execution application' was issued which was necessary in view of ex parte judgment and that bailiff reached the premises with police aid at night at about 9-45 p.m. And ejected the appellant at 1-00 a.m. On 26-7-1994 and that the impugned order was not legal.
10. ' Rule 13 of Order 9, C.P.C. Runs: "13. Setting aside decree ex parte against defendant.--(1) Any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfied the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceedings with the suit: ' Provided that where.................................
11. ' The above provision stated that the decree or order could be set aside if the Court is satisfied that the summons was not duly served or that the person against whom order was passed was prevented by any sufficient cause from appearing in the Court when the matter was called for hearing. In the instant case, it has been admitted by the appellant that he was duly served and he did put in appearance through his counsel who filed his Vakalatnama and sought date for filing written statement but, thereafter, he remained absent, therefore, the first ground for getting the order set aside would not be attracted., So far the next ground for getting the order set aside as laid down in the above provision of law stated that one has to show that the said person was prevented by any sufficient cause from appearing in the Court when the matter was called for hearing. In the instant case nowhere in the application under Order 9, rule 13 or in the affidavit filed in support of the said application any cause has been shown which could be termed as sufficient cause within the meaning of rule 13 of Order 9, C.P.C. The only ground shown in the application is that his counsel Mr. Zubair Ahmed did not inform the appellant about the proceedings of the case.
12. It is the duty of the party to remain in touch with his counsel and to pursue the proceedings personally or through his counsel but the said ground that the counsel did not inform him, would not constitute a sufficient cause within the meaning of law. Mr. Zubair Ahmed being the agent of the appellant, therefore, latter. Would be bound by the said act of negligence of his counsel. No affidavit of the said learned counsel has been filed to show as to why the said counsel failed to appear and file written statement on behalf of the appellant. Reference is made to Mst. Shirin Begum's case (1988 SCM R 670) wherein Supreme Court of Pakistan has observed: "We accept, in the circumstances of the statement of learned counsel that after adjournment on 15-11-1983 on his request, the next date was not entered in his diary due to mistake. But subsequent in action for some time when the case was adjourned several times, is unexceptionable."
13. ' In the cited case ex parte order of ejectment was passed and application for setting aside of the said order was dismissed and appeal also failed and, in the Supreme Court also the order of the Rent Controller was maintained. The facts of instant case are also nearly similar to the cited case.
14. In Muhammad Ilyas Khan's case (1994 CLC 1129) learned Judge in Chamber held that ex parte ejectment order against the tenant could have been set aside only if he was not served or he was prevented from appearing from the Court for reasons beyond his control and further that the application for setting aside ex parte order was made after a period of eight months without any application for condonation of delay and the case was clearly of negligence on the part of the tanant and his counsel and order of ejectment in the circumstances could not be set aside. In M/s. Radco International case (1994 CLC 580) order rejecting application for setting aside ex parte order of the Rent Controller was held to be proper and legal and no interference with such order was called for. In M/s. Niazi Institute of Science Organization's case (1987 CLC 1804) learned Judge in Chamber maintained the ex parte order of ejectment and dismissed an application for restoration of case holding that no sufficient cause was shown. In Muhammad Panah's case (1989 CLC 630) learned Judge in Chamber held that an application for setting aside ex parte decree would be under Article 164 of Limitation Act whereunder period of thirty days was prescribed for filing such application and the time would run either from the date of decree or where summons were not duly served from the date of knowledge of decree. In Muhammad Anis v Mst. Akhtar Jehan Begum's case (1991 M LD 1386) learned Judge in Chamber held that when tenant was duly served but failed to appear before the Rent Controller which ultimately resulted into an ex parte order of ejectment and application for setting aside ex parte ejectment order was filed after expiry long period of seven months, after the expiry of prescribed period of limitation for filing such application and tenant failed to give any reason for such delay the impugned order passed by Rent Controller dismissing application for setting aside ex parte decree was held to be unexceptionable. In Mst.
15. Hoor Bai's case (1984 CLC 3030) relied upon by the learned counsel for appellant, the learned Judge in Chamber held that the appeal against the order on an application against setting aside ex parte order was maintainable. Next case cited is of Mst. Zubaida Bai (PLD 1981 Kar. 82) wherein it was held that on setting aside of order of ejectment, the Court would be competent to order for restoration of the premises where circumstances so demand. In Jan Muhammad's case (1979 CLC 599) cited by the learned counsel for appellant, learned Judge in Chamber held that when the appellant in all probability has no knowledge of ex parte order of ejectment and execution proceedings against him, till actually dispossessed, appellant was held to be given opportunity to defend the proceedings. The cases cited by the learned counsel for appellant are different and distinguishable to the facts of the instant case.
16. In the instant case, it is admitted position that the appellant was duly served and put in appearance in Court before the Rent Controller and sought time for filing written statement thereafter he and his counsel remained absent though several times case was adjourned till ex parte order was passed. There is no cavil about the maintainability of appeal against the impugned order but the point for consideration, in this case would be whether the appellant/tenant has shown that he was prevented by any sufficient cause from appearing when the matter was called for hearing. There is nothing on record to show any such cause which could be said to be sufficient cause within the meaning of law. The F only ground which has been stated in the application and the affidavit is that his counsel Mr. Zubair Ahmed did not inform him about the proceedings of the case. It is not the duty of the Court to inform the appellant/tenant but it was his duty to keep in touch with the proceedings of the case by attending the Court or remaining in touch with his counsel and his failure to perform his duty would not constitute a sufficient cause.
17. The appellant and his learned counsel's conduct would amount to be negligence and carelessness on their part. In the instant case as the ejectment order was sought to be executed within a period of one year therefore, under rule 22 of Order 21, C.P.C. Service of notice to the judgment-debtor would not be necessary before the issuance of writ of possession.
18. ' Rule 22 of Order 21, C.P.C. Runs: "(1) Where an application for execution is made---
(a) more than one year after the date of the decree, or
(b) against the legal representative of a party to the decree, or where an application is made for execution of a decree filed under the provisions of section 44-A, the Court executing the decree shall issue a notice to the persons against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him: ' Provided that no such notice shall be necessary in consequence of more than one year having elapsed between the date of the decree and the application for execution if the application is made within one year from the date of the last order against whom execution is applied for, made on any previous application for execution, or in consequence of the application being made against the legal representative of the judgment-debtor, if upon a previous application for execution against the same person the Court has ordered execution to issue against him.
(2) Nothing in the foregoing sub-rule shall be deemed to preclude the Court from issuing any process in execution of a decree without issuing the notice thereby prescribed, if, for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice."
19. ' In the circumstances, contentions raised by the learned counsel for appellant that notice before the issuance of writ was not given, therefore, his ejectment was illegal, has no merit and substance.
20. ' I may also state that in this case the appellant has got up from his sleep after the expiry of seven months from the date of passing of order of ejectment. There is nothing on record to show as to what was the reason which prevented him or his counsel from making any enquiry from the office of Rent Controller to know the progress and proceedings of the case.
21. In view of the above case-law and the facts and reasons, there is no ground for interference with the impugned order of the learned Rent Controller, consequently appeal has no merit which is hereby dismissed. The appellant is however, given sixty days to vacate the premises subject to deposit of rent with the Rent Controller.