SALEEM AKHTAR, J.---This order will disposed of both these petitions as common questions of fact and law are involved..
2. The petitioners are tenants while the respondent is the landlord. The respondent had filed applications for ejectment against the petitioners separately in respect of shops rented out to them on grounds of default in payment of rent and personal bona fide requirement. The learned Controller granted the ejectment applications against which the petitioners filed appeals separately. On 10-4-1996 when the appeals were fixed for hearing, petitioners and their Advocate did not appear and consequently the learned Judge in Chamber heard arguments of the Advocate for the respondent and delivered the Judgment on merits dismissing both the appeals.
According to the Advocate for petitioners he appeared in Court when the judgment was being dictated. He immediately filed an application stating that the petitioners had informed him that they would not be able to go to the Court but he (Advocate) proceeded in the from his house on his motorcycle which broke down in the way. He got it repaired and reached the Court at 9.55 a.m.
The said application was heard and dismissed by order dated 2-6-1996. The petitioners filed petitions for leave to appeals against judgment passed on 10-4-1996 and the order dated 2-6- 1996. The petitioners filed application for condoning the delay in filing petitions which according to the office note were barred by 28 days. The petitions were filed in this Court on 7-7-1996, therefore, as against judgment dated 10-4-1996, they were barred by the and the ground that because of pendency of application for setting aside the ex parte judgment and re-admitting the appeals for hearing was pending, he did not file these petitions, can hardly be sufficient cause for condoning the delay. The petitions against order dated 2-6-1996, however, are within the and if application for setting aside, the judgment dated 10-4-1994 is accepted, the same would automatically be set aside. In this background we have heard the learned counsel for the parties in respect of petition against order dated 2-6-1996.
3. There does not seem to be any dispute that the petitioners and their Advocate were not present at the the when the appeals were called for hearing in the High Court. From the record it is also undisputed that the learned Judge in Chamber heard the arguments of the Advocate for the respondent and passed the judgment. From the record it is also clear that the petitioners'
Advocate had appeared in Court, according to him, at 9.55 a.m. When the judgment was being dictated. The learned counsel has filed his affidavit to this effect and no counter--affidavit has been filed by the respondent. In the order dated 2-6-1996 there does not seem to be any observation to contradict this statement.
4. The learned counsel for the petitioners contended that the judgment was passed ex parte without hearing the petitioners in violation of the provisions of Order XLI, rule 17, Code of Civil Procedure (C.P.C.) and, therefore, the same is liable to be set aside. The learned counsel for the respondent contended that as C.P.C. Is not applicable to the rent proceedings and the petitioners and their Advocate being absent, the Court was justified to hear the respondent and decide the case on merits.
5. The first question is whether C.P.C. Is applicable to the proceedings before the Rent Controller.
The consensus is that the provisions of C.P.C. Unless specifically made applicable by the rent laws, do not apply in terms to the rent proceedings, but the principles of C.P.C. So far they are not in conflict with the provisions of the rent laws and advance the cause of justice, may be applied in the facts and circumstances of the case. In Mrs, Nawab Din Ahmed and another v. Faiz ur Rehman (PLD 1982 Karachi 89) the applicability of C.P.C. In proceedings before the Rent Controller was considered by me and after referring to Ghulam Nabi v. Mukhtar Ahmed (PLD 1980 SC 206) and Imperial Dyeing and Printing Mills, Karachi v Safdar Ali (PLD 1971 Karachi 7'78), it was observed:-- "The consensus of opinion is that C.P.C. Is not applicable in terms to the proceedings before the Controller. It is only applicable to the extent provided by the Ordinance itself. However, where no procedure has been provided it is just and convenient to apply the principles laid down by the Code of Civil Procedure for the conduct of the proceedings. In applying these principles the penal provisions as provided by C.P.C,, cannot be pressed in service. The principles of Order XXII can be applied for bringing the legal heir in record."
Reference can also be made to Muhammad Aslam Mirza v. Mst. Khurshid Begum (PLD 1972 Lahore 603) where after exhaustive discussion and reference to a long string of judgments it was held that although there is no express provision in the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter called the Ordinance), providing a remedy of the kind contained in Order IX, rule 13, C.P.C., i.e., for filing an application to set aside an ex parte order on the ground that the defendant was prevented for a sufficient cause for the date of hearing from attending, still its principles were made applicable and the application was held to be maintainable. The Controller was held to have power to set aside the order passed ex parte on satisfaction that the defaulting party was prevented due to sufficient reasons from attending the Court. It is now well-settled that in proceedings before Court or Tribunal of quasi-judicial nature, even if there is no provision for setting aside an ex parte order, the Court/Tribunal would be empowered to exercise such power by applying principles of natural justice. Such provisions which enshrine principles of natural justice have to be read in the statue which do not specifically debar such a remedy. Therefore, even without applying the provisions of C.P.C. In terms, the procedure provided under Order IX, Rules 9 and 13 and Order XLI, Rule 17, C.P.C. Can be applied by the Controller or the High Court in rent proceedings. In such cases the Court is not required to consider and decide it on appearing in Court due to sufficient reasons. It would, therefore, not amount to reviewing its own judgment which surely a Controller is not empowered to do. As observed earlier, all the provisions of C.P.C.
Have not been applied in rent proceedings. While deciding appeal, section 15(3) provides a procedure that" the appellate authority shall decide the appeal after sending for the record of the case from the Controller and after giving the parties an opportunity of being heard and if necessary after making such further inquiry as it thinks fit either personally or through this Controller. Although it provides a procedure for regulating the proceedings by this Appellate Court, it does not indicate a procedure in a situation an where in ex parte order has been passed and is required to be recalled. In the absence of any such provision in the Ordinance in order to meet the demands of Justice, equity and principles of natural justice, it would be necessary to follow the just and equitable principles contained in C.P.C. The law does not favour ex parte decisions unless it is caused due to negligence or reasons which are not sufficient to excuse the absence on the date of hearing. In H.M. Saya & Co., Karachi v. Wazir Ali Industries Ltd., Karachi and another (PLD 1969 SC 65), the question v is whether a stranger, who was not a party in this Court below, could file ::n appeal,. It was observed as follows:-- "A stranger to a suit or a proceeding is not prohibited by the bode of Civil Procedure from filing an appeal from an order passed therein. It is true that there is no express provision permitting such party to prefer an appeal against such an order. This omission, however, cannot be understood to amount to prohibition. The Court ought not to at on the principle that every procedure is to be taken as prohibited unless it is expressly provided for. To give such a meaning to this omission would result to grave injustice.. The facts of this case are clear example in point. The Court should proceed on the principle that every procedure which furthers administration of justice is permissible even if there is no express provision permitting the same."
The dictum laid down in the afore stated observation is of universal applicability to all Courts and Tribunals. The law may provide for procedure for a Tribunal. Which is to be followed in the proceedings, but if any particular kind of procedure is omitted, then unless it is specifically excluded, shall not be deemed to have been prohibited by the statute provided it is just, equitable, satisfies the principles of natural justice and facilitates the administration of justice.
6. It, was contended by the learned Advocate for the petitioners that in view of section 15(3) of the Ordinance it was the duty of the Appellate Court to have heard both the parties and therefore ex parte judgment was illegal. The main emphasis of the learned counsel was that under section 15(3) the parties are to be provided an opportunity of being heard. It is correct the Appellate Court must hear both the parties, but it would be to far to stretch that in all circumstances, a party who remains absent without any sufficient cause, is negligent or with a view to delay the proceedings remains absent, the Court should not proceed with the matter unless such defaulting party makes appearance. Such an interpretation will lead to absurdity and will not facilitate the administration of justice. If a party is served with a notice of hearing and does not appear on the date of hearing, the Appellate Court can proceed with the case. In cases where the defaulting party is an appellant, the best course is to dismiss the appeal for non-prosecution and refrain from proceeding on merits. These principles are enshrined in C.P.C. And have not been incorporated in section 15 of the Ordinance, but there is no prohibition to apply them as well.
However, If the respondent is absent, then the Court can hear the appellant and decide the appeal on merit. In this regard the learned counsel has referred to Navaid Hussain v. Mrs. Mirza (1982 CLC 1518) where the following observation was made:- "This impugned judgment, which is passed ex parte on merits in the absence of appellant is violative of the statutory provision as contained in section 15(2) of the Ordinance and also principles of natural justice as stated above. If the statutory requirement of section 15(2) could not be copied with and one of the to parties could not be heard for any reason then on equitable grounds and on the principles of natural justice, if the appellant is absent, this appeal in all fairness is to be dismissed for default of appearance and non-prosecution and if the respondent is absent then appeal be decided on merits ex parte but each party is to be conceded a right of rehearing on showing sufficient cause which precluded him from participating in this proceedings. This would meet adequately the requirement of natural justice that nobody should be condemned unheard, ' audi alteram partem'."
Relying on Muhammad Aslam Mirza v. Mst. Khurshid Begum (PLD 1972 Lahore 603) and Abdul Majid v. Ibrahim (PLD 1979 Karachi 238), it was held that an application for setting aside ex parse order is competent before the Rent Controller and the appellate authority as well. It may be pointed out that these observations are based on a reading of Explanation to section 15(4) of the Ordinance in which it was provided that appeal under this subsection shall be heard and determined as an appeal from the appellate order under section 96, C.P.C. If it is from an order of the Controller and as an appeal from the appellate order under section 100 of the said Code if it is from an order of the appellate authority and the provisions of Part IV and of this First Schedule to the said Code relating to appeals shall, with such modification as the context may require, apply to such proceedings. This Explanation has now been deleted. In view of this Explanation, the provisions of C.P.C., particularly Order XLI were applied and, therefore, for non-compliance on technical grounds as contained in Order XLI, rule 17, C.P.C. Could be a ground for challenging the order. But as observed earlier, even in case of non-applicability of C.P.C. And there being no specific exclusion, the principle can be applied without observing technicalities, which cannot in terms be pressed in service. The principles contained in the afore stated observation will equally apply in cases where C.P.C. Has not been made applicable.
7. Having concluded that the principles of C.P.C. To the extent they have not been specifically excluded and tend to advance the cause of justice are applicable to the rent proceedings, we have now to consider whether such principles have been followed in the present case. The petitioners had filed application under Order XLI, rule 19, C.P.C. For recalling the judgment passed ex parte stating that the petitioner's Advocate appeared in Court at 9-55 a.m. He explained that he had started from his house on motor-cycle in the, but due to its break down he was delayed. The affidavit filed by him has not been controverted as no counter-affidavit has been filed. In these circumstances, sufficient cause was made out for setting aside the ex parte judgment which had been dictated, but not signed. We, therefore, convert both the petitions into appeals, allow them and set aside the order dated 2-6-1996 and grant the application for setting aside the judgment dated 10-4-1996. Consequently, the said judgment is set aside and the appeals are remanded to the High Court to decide them on merits preferably within three months.