' Through this appeal the appellant has called in question the order, dated 25-2-1999 passed by VIIth Rent Controller, Karachi, South, whereby the appellant has been directed to hand over vacant possession of the premises in question to the respondent within 60 days from passing of the same order.
2. Succinctly stated, facts of the case are that the applicant-landlord (hereinafter called as respondent), filed an application under section 15(2)(ii) of Sindh Rented Premises Ordinance, 1979 praying for eviction of the opponent/tenant (hereinafter called as appellant) from the premises viz: 1237 square feet being portion of building standing on a plot bearing survey No,20-GK-8 (hereinafter called disputed premises). It is stated that earlier, the appellant was rented out 1687 square feet, of which, he retained only aforementioned area of 1237 square feet abondoning the rest of it. The monthly rent is also said to have been reduced, from Rs,10,122 to Rs,7,422. It is averred by the respondent that the appellant is a habitual and wilful defaulter in payment of monthly rent in as much as that an amount of Rs,1,73,083 was due against him being monthly rent for the period commencing from 20th July, 1996 to 30th July, 1998. The respondent stated that the appellant had sent a cheque of Rs,29,688 on 30-9-1997 against defaulted amount of rent, the same was, however, returned to him.
3. The appellant had appeared before the Rent Controller through his counsel on 10-9-1998 and the case was adjourned to 13-11-1998 as a matter of final and last chance affording an opportunity to appellant to file written statement, however, on account of his failure on 13-11-1998, he was ordered to be proceeded against ex parte. Later on, an application was moved on his behalf for setting aside the ex parte order. This application was supported by ' an affidavit of his counsel that his wife being ailing was taken to hospital where he had to wait in helpless condition to reach the Court in time and by the time he managed to reach the Court at about 11-30 a.m. He found the appellant was ordered to be proceeded against ex parte. No reason for absence of appellant was, however, disclosed. This application was resisted by the respondent. Learned Controller heard the parties and dismissed the application. On 17-2-1999 while adjourning, the matter to 25-2-1999 for orders. In the meantime, it is stated, that on 14-12-1998 an employee of the respondent had already furnished an affidavit-in-evidence as a matter of ex parte proof. The Controller, therefore, on the basis of material available in the shape of ejectment application and the affidavit in ex parte proof thereof passed the impugned order observing that it had gone unchallenged and unrebutted. The appellant has challenged the impugned order with prayers that the said order and also the order, dated 17-2-1999 dismissing his application for recalling orders to proceed against him ex parte be set aside.
4. I have heard learned counsel for both the parties and I have also examined the R&P of lower Court in Rent Case No,1290 of 1998.
5. Contention of learned counsel for appellant is that learned Controller has patently based the impugned order in the affidavit in ex parte proof filed by the respondent observing that it has gone unrebutted and unchallenged, but, the fact remains to be noted that at no point of time it was notified to the appellant that such an affidavit. Was presented by the respondent and so also nothing is mentioned about it in the case diary of relevant rent case. He pleaded that if he had knowledge of such affidavit, he would have surely preferred to cross-examine the respondent to unravel the truth. He argued that by adoption of such secret and deceptive mode, he has been deprived of opportunity which is always provided to a litigant in like circumstances. His other limb of argument is that the impugned order has also been passed in startlingly secretive manner inasmuch as that it also does not find any place in the case diary.
Learned counsel vehemently criticised the impugned order in the background of his arguments and expressed that learned controller has acted in strange manner, ignoring the basic principles of law which obviously affect his legal rights causing gross miscarriage of justice to his utmost detriment.
6. Learned counsel for the respondent supported the impugned order. He stated that the affidavit in ex parte proof was duly presented before the controller, which has gone unchallenged, the impugned order is, therefore, sustainable in law and no illegality has been committed by the learned controller while passing the said order. When asked, if he could cite the day on which the affidavit in question was presented before learned controller, he had no answer to give.
7. On examination of record and proceedings of rent case, the contentions of learned counsel for appellant are found to have enough force. It appears that one Muhammad Hand Qureshi expressing to be an employee of respondent has filed his affidavit in ex parte proof. This document, however, does not bear the date of its presentation. It also does not bear signature or initial of learned Controller or even signature or initial of any authorised officer of Court as a mark of presentation. It is dated 14-12-1998 and seems to have been sworn to before some Oath Commissioner of Karachi. Copy of this affidavit also does not seem to have been supplied to and received by other party i,e,, the appellant. On scrutiny of case diary, dated 14-12-1998, of rent case, it, too, does not reflect if on that day affidavit in ex parte proof was filed. It reads as follows:-- "14-12-1998 parties' counsel are present. Applicant's counsel received the copy of setting aside.
Put off to 24-12-1998 for filing objections against for setting aside."
' Thereafter, the matter was being adjourned on various dates till 17-2-1999 and during this period it was transferred from IVth to VIIth Controller, South, Karachi on 18-1-1999. On the first mentioned date, application for setting aside ex parte orders was dismissed and the matter was adjourned to 25-2-1999. The case diary of this day viz. 17-2-1999 bears an overwriting indicating that the matter was put off to that date for orders. Nevertheless, case diary of all the dates is silent as to filing of affidavit in ex parte proof or intimation or notice thereof, ever given/sent to the appellant to provide him an opportunity to challenge the same. Su bsequent to 17-2-1999 no further diary has been maintained. Learned controller while passing the impugned order, dated 25-2-1999 has observed therein that she heard arguments of applicant's side but as far as appellant is concerned, it is difficult to infer if the appellant was present on that day or not.
8. Of course, the proceedings against the appellant could have been taken ex parte consequent upon his failure to file his written statement; notwithstanding, the appellant could not be prevented from participating in the subsequent proceedings. This right being available, he is also not debarred from cross-examining the witness of the respondent filing an affidavit in ex parte proof, if the appellant so chooses. Reference is made to the case of Haji Usman v. Haji Sh afiur Rehman reported in 1998 CLC 1443 in which, while deciding a First Rent Appeal No,983 of 1997, learned Single Judge of this Court, has observed as follows:--- "Another aspect of the case of that even if the appellant was declared ex parte he could not be debarred from taking part in the proceedings. He had been debarred from filing written statement. After the respondent had filed ex parte proof as the appellant and his Advocates were present, they should have been allowed the opportunity to cross-examine the witnesses, which opportunity was not given to them. Without giving such opportunity to the appellant the Controller should not have reserved the matter for orders. If the appellant and his Advocate would have remain absent when the affidavit of proof was filed, the Controller would have been justified in reserving or pronouncing the order. The impugned order is, therefore, set aside. The appellant is allowed to file written statement within three weeks."
' Identical views have been expressed in somewhat similar situation in a case reported as Khalil-ur-Rehman v. Razia Naz and another 1984 CLC 890 which relates to a dispute decided under Family Court Act, 1964.
9. Su bsection (4) of section 19 of Sindh Rented Premises Ordinance, 1979 also requires: that copy of the affidavit of witness meant for proving his evidence is to be simultaneously supplied to the other party and such other party shall have the right to cross-examine the witness on such affidavit. The appellant pleads so it seems that he has not been notified of the presentation of affidavit in ex parte proof much less supplying copy of affidavit to providing him an opportunity of cross-examining the witness. The case diary maintained up to 17-2-1999 in the rent case is silent and does not throw light to answer these questions. Accordingly, it is held that the appellant had a right to participate in the proceedings. He ought to have been given an opportunity to cross-examine the witness of respondent of which he has admittedly been deprived of.
10. The other contention of learned counsel for the appellant is that the impugned order was passed without affording him an opportunity of hearing of arguments. According to learned counsel, before passing the said order, he ought to have been given a chance to clarify the controversy in his arguments. Strictly speaking, the Sindh Rented Premises Ordinance, 1979 does not furnish any answer to deal with the situation, nevertheless, Courts have always acted aptly to resolve the controversy in like situation by referring to the provision of Code of Civil Procedure. It is noted that, in the larger interest of-justice and on the ground of equity, where the ordinance ibid does not provide to deal with an eventuality, in appropriate- cases relevant provisions of Code of Civil Procedure have been resorted to. Reference is made to case reported as Muhammad Sa eed Daftri v. Mst. Razia Begum 1996 CLC 1034. Order 20, Rule 1 of Code of Civil Procedure envisages hearing of arguments of parties after completion of evidence and pronouncement of judgment when arguments have been heard; and rightly so, learned controller chose to hear the respondent before passing the impugned order. This order, however, does not disclose reasons as to why the appellant could not be heard since he was not precluded from participating in further proceedings subsequent to ex parte order, dated 17-2- 1999 passed against him. It would have been possible to ascertain such reasons had there been case diary of relevant date of hearing maintained by learned controller. It is apparent that no case diary has been written for 25th February, 1999 i,e,, the next date after 17-2-1999 when the impugned order was passed, therefore, no other inference can be drawn except to observe that the expressions of learned counsel for the appellant patently appear to be correct, in the present circumstances for this case.
11. Regarding prayer of appellant to set aside the order, dated 17-2-1999 requiring the proceedings to be carried ex parte on account of his failure to file his written reply, learned counsel did not seriously argue his case. Record and proceedings of rent case however reflect that the appellant failed to file written statement though enough opportunities were provided to him. There is also nothing on record to justify his non-appearance and failure to file written statement on 13-11-1998 when he was made ex parte. His counsel, too, produced no documentary proof to substantiate his contention that his wife was ailing and was taken to the hospital on the relevant date of hearing preventing him from reaching the Court with delay when ex parte order stood already passed. His oral assertions to that effect in his affidavit have been strongly resisted by the respondent in counter-affidavit. No rejoinder to that seems to have been filed. Accordingly, I do not see any infirmity in the order of learned Controller dismissing relevant application.
12. Keeping in view the facts and circumstances discussed above, this appeal is allowed and the impugned order is set aside to the extent that matter is remanded for passing orders afresh on merits after affording the appellant an opportunity to cross-examine the witness of the respondent and also after hearing arguments of both parties before passing of the orders. The District Judge concerned is, however, required to transfer the relevant case from VIIth Rent Controller, Karachi, South to any other Controller within his jurisdiction. R&P be sent him directly.