' Through this Constitutional petition, petitioner has challenged the order dated 24-5-2000 passed by the learned Rent Controller seized of the eviction petition filed by respondent whereby lie recalled the order dated 6-5-1997 and held that defendant (in the eviction application) Dr. Mueen Ahmad is a necessary party to the eviction proceedings.
2. Facts in brief are that respondents Nos. 2 to 10 filed an eviction petition against the writ petitioner and Dr. Mueen Ahmad on the ground that the said Dr. Mueen, in total violation of the rent deed (entered into between Dr. Mueen and the respondent. Nos.2 to 10), sub-let shop to the petitioner- defendant. Summonses were duly issued by the learned Rent Controller but the petitioner did not appear and only Dr. Mueen and Yousaf appeared. On 6-5-1997 the said Dr. Mueen got recorded his statement that he was neither in possession of the premises subject-matter of the petition nor any rent was due from him and that he had handed over possession to the respondent/applicant Or the basis of the statement made the learned Rent Controller deleted the name of Dr. Mueen from the list of the defendants in the ejectment petition. The case lingered on. Petitioner-defendant was proceeded against ex parte on 6-6-1998. On application filed by him to have that order set aside.
The order was recalled on 15-10-1998 subject to payment of cost of Rs,600. However, despite a lapse of several months after the order dated 15-10-1998 he did not file written reply and instead on 16-5-2000 moved an application to the Rent Controller that despite the order dated 6-5-1997 passed by the then Rent Controller deleting the name of Dr. Mueen from the list of defendants, his name had not been deleted from the eviction petition and that the respondent-applicants be directed to file amended eviction petition in terms of the order in question without which the petitioner-defendant was not in a position to file written statement. Respondent-applicants contended that the order dated 6-5-1997 was passed behind their back in a clandestine manner that Dr. Mueen was a necessary party as the rent deed was signed by him in violation of which he had sub-let the shop to the writ petitioner and the other defendants in the eviction petition. The learned Rent Controller dismissed writ petitioner's application and held as under:- "The tenancy between the petitioner and respondent No,1 is admitted. For proper adjudication of the matter it was necessary that respondent No,1 should remain party to the petition and there is no direct relations of the petitioner with the respondents Nos.2 and 3. The respondent No,1 was not only necessary but also proper party to the instant petition. In case his name is deletea from this petition the case of the respondent/petitioner would come to ground and he would be condemned unheard. In the interest of justice this Tribunal recalls the order dated 6-5-1997 and it is observed that respondent No,1 is a necessary as well as proper party to the petition."
3. Learned counsel for the petitioner made following submissions in support of this petition:--
(i) that the respondents never sought annulment of the order dated 6-5-1997 and the learned Rent Controller could not have recalled the order suo motu;
(ii) that the order passed by the learned Rent Controller tantamounts to filling in the lacunas in the respondent-applicant's case which besides being arbitrary reflects a partisan profile;
(iii) that the learned Rent Controller has no power to review its own judgment/order.
' In support of the submissions learned counsel relied on Messrs Shah Jewana Textile Mills Limited Lahore through Representative v. United Bank Limited through Attorneys (PLD 2000 Lahore 162) and Messrs Vulcan Co. (Pvt.) Limited v. Collector Customs (PLD 2000 Lahore 253).
4. Learned counsel for the respondents, on the other hand has submitted as under:--
(i) That the writ is not maintainable as the petitioner is not aggrieved person as no order adverse to him had been passed and Dr. Mueen whose name was deleted and who vide the impugned order has again been impleaded as a party has not challenged the order in question;
(ii) that the order dated 6-5-1997 passed by the learned Rent Controller was an ex parte order and the presence of respondent-applicant's learned counsel has been wrongly shown;
(iii) that the petitioner was proceeded against ex parte on 6-6-1998. The said order was recalled on 15-10-1998 subject to payment of a cost of Rs,600. Having got reviewed an order passed against him by the learned Rent Controller, it does not lie in the mouth of the petitioner to say that the Rent Controller has no power of review. In support of his submissions, learned counsel relied on Sh.
Muhammad Ibrahim v. Syed Abdul Aziz Shah and others (1990 SCMR 542).
5. I have heard learned counsel for the parties and have also gone through the precedent case- law relied upon by both the sides.
6. There is no cavil to the proposition that the Code of Civil Procedure does not apply to the rent proceedings stricto senso but it is a settled law that the equitable principles laid down in C.P.C. May be applied by the Rent Controller to advance justice. This was the ratio of the judgment laid down by the Hon'ble Supreme Court in Sh. Muhammad Ibrahim v. Syed Abdul Aziz Shah and others (1990 SCMR 542).
7. Relying on a judgment of the Hon'ble Supreme Court in Khadim Mohyuddin and another v. Ch. Rehmat Ali Nagra and another (PLD 1965 Supreme Court 459) a Full Bench of this Court held in Muhammad Aslam Mirza v. Mst. Khurshid Begum (PLD 1972 Lahore 603), at page 659, it was observed asunder:-- "We want to make it clear that when we have said that Civil Procedure Code does not apply to a Rent Controller as per force of section 141, C.P.C. We do not intend to lay down That if the Rent Controller so chooses he cannot adopt the 'procedure' laid down in the said Code with such modifications as the circumstances warrant. This will be the choice of the Rent Controller.
' Taking the same view, therefore, I hold that Civil Procedure Code, is not applicable to a Rent Controller per its own force and so also is not applicable Order IX, rule 13, C.P.C. And a view to the contrary in Syed Nafis Ahmad Zaidi v, S.M. Hussain is not correct only to this extent. But on general plane a Rent Controller is not precluded on the basis of natural justice to recall an order made ex parte against a tenant on the ground that he was precluded on the relevant date from appearing due to a sufficient cause. All the learned counsel who appeared amicus curiae supported this view."
8. The law laid down in the foregoing judgment is based on yet another solitary principle which was highlighted by the Hon'ble Supreme Court in H.M. Saya & Company Karachi v. Wazir Ali Industries Limited (PLD 1969 Supreme Court 65) wherein at page 65 it was held as under:-- "The Court ought not to act on the principle that every procedure is to be taken as prohibited unless it is expressly provided for. To give such a meaning to the omission would result in grave injustice. The facts of this case are clear example in point. The Court should proceed on the principle that every procedure in which further administration of justice is permissible even if there is no express provision permitting the same,"
9. The Rent Controller while passing the impugned order recalling the earlier order of deletion of the name of defendant Dr. Mueen has given valid reasons for impleading him as a party. Admittedly, the tenancy was between the respondent and Dr. Mueen and the precise allegation was that he, in violation of the said tenancy, sub-let the shop. For the reason he was not only necessary but a proper party as well. The respondent had rightly impleaded him as a party in the eviction petition and without him an important ground agitated in the eviction petition would have gone unrepaired and the Rent Controller would have felt handicapped in giving any finding on the said point. Order I, rule 10 of the, C.P.C. Empowers a Court to add or delete a party on the oral request on a specific application by a party. The Court can also do so suo motu without any, application. This rule is based on the general principles of natural justice and Order 1, rule 10(2), C.P.C. Specifically stipulates as under:- ''the Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectively and completely to adjudicate upon and settle all the questions involved in the suit, be added."
10. The pleadings in the eviction petition remained the same all along and the respondent- applicants had alleged that Dr. Mueen had sub-let the premises in derogation to the rent deed.
Without his presence the learned Rent Controller could not have decided this issue "effectively" and "fairly". This would certainly have adversely affected the case of respondent/eviction petitioners whereas if Dr. Mueen continues to be defendant in the eviction petition, it would not preclude the writ petitioners to take up any defence. He has yet to file his written statement. There is no reason why should it adversely affected the case of the writ petitioners before the Rent Controller.
11. The afore-referred provisions of the C.P.C. As held in the precedent case law referred to above would not be applicable strictly but the principle which is enshrined in these rules can be invoked by the learned Rent Controller to promote the ends of justice which he has done in this case for valid reasons.
12. The petitioner has filed this Constitutional petition against an interim order which on that score is also not competent.
13. For what has been discussed above I do not see any merit in this petition which is hereby dismissed with no order as to costs.