' It is proposed to decide Second Appeals from Orders Nos.144 of 1996 and 145 of 1996 through this common judgment as the factual and legal controversy is the same.
2. The relevant facts for the decision of this appeal against the order are that the respondents filed an ejecment petition on 18-3-1993, which was registered as Ejectment Petition No,14 of 1993. The appellant appeared and contested the petition. The Rent Controller vide order dated 4-7-1993 proceeded to pass order under section 13(6) of the Punjab Rent Restriction Ordinance, whereby the appellant was directed to deposit the monthly rent at the rate of Rs,500 before 15th of each month and thereafter, proceeded to frame 4 issues and adjourned the ejectment petition for 6-10-1993. In the meanwhile, the respondents filed yet another ejectment petition on 27-7-1993 on the ground of default, which was registered as Ejectment Petition No,17 of 1993 vide order dated 28-7-1993 and the notice issued to the appellant. The ejectment petitions were being fixed separately till 22-11- 1993. The respondents' moved an application on 9-3-1994 for striking off the defence of the appellant for alleged violation of order passed under section 13(6) of the Rent Restriction Ordinance. The application is available at page 71 of the first file while reply thereto at page 73. The Rent Controller after hearing the arguments accepted this application but unfortunately the order dated 15-5-1994 striking off the defence was typed on a separate sheet, was placed on the Ejectment Petition No,17 of 1993 while another order typed again on a separate sheet was placed on first ejectment petition whereby the same was dismissed in view of ejectment order in the other ejectment petition. The appellant impugned the order of striking off the defence through an appeal before the appellate authority. The main ground convassed was that no order under section 13(6) of the Rent Restriction Ordinance was passed in the Ejectment No,17 of 1993, therefore, the defence could not be struck off. This appeal was accepted by the appellate authority vide order dated 19-3- 1995 and the Rent Controller was directed to decide the application in accordance with law. The respondents when confronted with this anamolous situation moved an application for restoration of the Ejectemnt Petition No,14 of 1993 and for its decision in accordance with law. The application was resisted by the appellant. The learned Rent Controller after hearing the arguments dismissed the same vide order dated 27-7-1995, which was assailed by the respondents through an appeal before the appellate authority. The appeal was accepted by Syed Nasir Ali Shah, learned Additional District Judge, Gujranwala vide order dated 13-5-1996, which has been assailed through this appeal. It seems that after the acceptance of the appeal of the appellant vide order dated 19-3- 1995, the Rent Controller started proceedings in Ejectment Petition No,14 of 1993 also but subsequently vide order dated 16-4-1995 observed that this petition was not consolidated with the Ejectment Petition No,17 of 1993, therefore, the same is consigned to record room. The other appeal before the appellate authority was directed against this order. The appellant now has challenged the order of Syed Nasir Ali Shah, Additional District Judge, Gujranwala dated 13-5-1996, whereby the appeal of the respondents was accepted and Ejectment Petition No,14 of 1993 was also remanded for decision in accordance with law. The appeal came up for limine hearing on 25-7-1996 when preadmission notices were issued to the respondents, who have entered appearance. It was ultimately decided to treat the same as notice case and requisition the record of the trial Court.
The record has been received and perused.
3. The learned counsel for the appellant argued that the application for restoration could be moved by the respondents either under Order IX, Rule 9, C.P.C. Or under section 151, C.P.C. It is added that since the Ejectment Petition No,14 of 1993 was not dismissed due to absence of the landlords, therefore, the application would be treated as under section 151, C.P.C., therefore, no appeal was competent against the order of 27-7-1995. In this behalf reliance is placed on the judgment reported as Ahmad Baldish v. Judge Family Court, Alipur and another (1997 M LD 1438) and Asghar Ali Mollah v. Surabindu Sen and others (PLD 1968 Dacca 498).
4. On the other hand, the learned counsel for the respondents argued that the application for striking off the defence was moved in Ejectment Petition No,14 of 1993. The same is available in that file. The reply filed by the appellant is also available in the said file but the order accepting the application has been placed by mistake or mischief on the file of Ejectment Petition No,17 of 1993.
The respondents could not be made to suffer for act of the Court or its officials. It is added that the order dismissing the first ejectment petition as infructuous was void, therefore, it would be treated nullity in the eye of law and the same has rightly been set aside by the appellate authority. The learned counsel in this behalf has relied on the judgments reported as Abdul Rashid v. Abdul Salam and others (1991 SCM R 2012), Khuda Bakhsh v. Khushi Muhammad and 3 others (PLD 1976 SC 208), Muhammad Shafi v. Mushtaque Ahmed through Legal Heirs and others (1996 SCM R 856), Nazir Ahmad v. Border Area Committee (1991 M LD 1154), Akbar Hussain v. Wadero Muhammad Tayyeb (PLD 1995 Kar. 452), Hafeez Muhammad Khan v. Saleem and others (1988 SCM R 1863) and Muhammad Mateen v. Khurshid Dosso Dorabji Marker and others (1988 CLC 711). The learned counsel has further raised a preliminary objection to the effect that this appeal is barred by limitation by 8 days.
5. I have given my anxious consideration to the arguments of the learned counsel for the parties, gone through the record, provisions of Rent Restriction Ordinance and precedents. The learned counsel for the appellant argued that the application for restoration of the ejectment petition and for its decision on merits would be treated as under section 151, C.P.C., therefore, the respondents could not maintain the appeal against the order of dismissal. The cases, relied by the learned counsel are not relevant because in the present case as a result of the impugned order dated 16- 4-1995 the ejectment petition of the respondents has been dismissed. This order being final order, therefore, was appealable under section 15 of the Punjab Urban Rent Restriction Ordinance. The point may be clarified by an example that if the ejectment petition is dismissed for non- prosecution, and the application for its restoration is rejected then the order would be appealable being the final order. The law only intended to exclude appeals against the interim and procedural orders. The judgment in the case of Muhammad Mateen supports this view. The law is that no party is allowed to take benefit of the error committed by the Court at the costs of other side. The learned counsel for the respondents rightly referred to the judgment in the case of Abdur Rashid (supra).
The ejectment petition was dismissed as infructuous by the Rent Controller vide order dated 15-5- 1994. The first question for determination is whether this order is legal? The reason for dismissal of the ejectment petition as infructuous was that the other ejectment petition has been accepted.
This was not warranted by law. The ejectment was to be decided on its own merits and in accordance with the provisions of Rent Restriction Ordinance. If looked from this angle the order was void. The learned counsel for the respondents was rightly referred to the judgments in the cases of Khuda Bakhsh and Muhammad Shafi (supra).
6. Now coming to the argument that nobody can be made to suffer for act of Court. The admitted position is that the order under section 13(6) of the Rent Restriction Ordinance has only been passed in Ejectment Petition No,14 of 1993. The application for striking off was also moved and reply is also available on this file, as noted in the earlier part of this judgment, however, the order accepting the petition and striking off of the defence has been placed on the file of Ejectment Petition No,17 of 1993. It might have been attributed to the Court staff but the mention of number of ejectment petitions in the order dated 15-5-1994 clearly showed that it was the negligence of the Rent Controller. He got the opportunity to rectify his mistake after the receipt of the remand order in the other ejectment petition. In fact this petition was fixed for hearing and notices were issued to the parties but then it was consigned to record room with the order that it was not consolidated with the other ejectment petition probably he meant that the order of the remand has been passed in Ejectment Petition No,17 of 1993, therefore, this petition could not be taken up. He while consigning this petition to record room should have cared to go through the remand order passed by the appellate authority on the appeal of the present appellant. This way the petitioners are being made to suffer for the acts of the Court, therefore, Syed Nasir Ali Shah, Additional District Judge rightly accepted the appeal. In this behalf reference could be made to the judgments reported as the State v. Asif Adil and others (1997 SCM R 209) and Ghulam Haider and others v. Mst.
Raj Bharri and others (PLD 1988 SC 20). It is a well settled principle of administration of justice that no party could be non-suited on account of erroneous order of the Court.
7. Now coming to the limitation. The appeal as per provisions of section 15 of the Rent Restriction Ordinance was to be filed within 30 days, on the other hand, the appellant got the copy on 4-6- 1996 while the appeal was filed on 9-7-1996. This way the appeal was time-barred by 4 days and 4 days were wasted by him in making application and securing the copies after it had been prepared by the Copying Branch, therefore, the appeal is also liable to be dismissed as time- barred.
8. The upshot of the above discussion is that this appeal is dismissed both on merits as well as barred by limitation. The Rent Controller is directed to decide the application of the petitioners for striking off the defence expeditiously in any case of 15th September, 1997. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.