1. This is an appeal under section 21 of Sindh Rented Premises Ordinance, 1979 (hereinafter called Rent Ordinance) directed against an order, dated 6-4-1998 whereby application under section 15 of the Rent Ordinance was allowed and the appellant/tenant was directed to hand over the vacant possession of the shop premises to respondent within thirty days. In this appeal the appellant has also challenged interlocutory orders dated 16-2-1998, 21-3-1998 and 6-4-1998 whereby application for adjournment, an application under Order 9, rules 7, C.P.C. And an application under section 19(4) of Rent Ordinance were dismissed prior to the final orders dated 6-4-1998.
2. Brief facts of the case are that the respondents filed eviction application against the appellant under section 15 of the Rent Ordinance who put in appearance through his counsel on 4-2-1998 after publication of the notice in the newspaper and thereafter he sought adjournment for filing written statement but on 16-2-1998 he again made an, application for time to file written statement which was dismissed and the respondent was directed to file affidavit in ex parte proof. Thereafter, on 18-3-1998 an application under Order 9, rule 7, C.P.C. Was filed by the appellant/tenant with the request to set aside the ex parte order, dated 16-2-1998 which application was dismissed as per order dated 21-3-1998. Thereafter, on 28-3-1998 an application under section 19(4) of Rent Ordinance was moved by the appellant with the request to direct the appellant to supply copies of affidavit in-evidence filed by the respondent and to afford chance to cross-examine the respondents and their witnesses which application was also dismissed on 6-4-1998, however, after disposal of the said application on the same date final eviction order was passed against the appellant.
3. Heard counsel for parties and perused the record and proceedings of the case Learned counsel for appellant has argued that he had shown good cause for his non-appearance on 16-2-1998; therefore, the order to proceed ex parte could have been recalled/set aside considering that no counter---affidavit to the application under Order 9, rule 7, C.P.C. Was filed by the respondents. He has further argued that even if no good cause was shown then also the appellant/tenant could have been permitted to participate in the proceedings after 16-2-1998 and would have been permitted to cross-examine the deponent/respondent as to his affidavit filed, of which copies should have been also supplied to him. In support he has placed reliance upon Deputy Registrar Cooperative Societies v. Mst. Zulekha Bai and others (NLR 1991 AC 183) wherein learned Single Judge has observed:-- "A bare reading of subsection (4) would show that the affidavit-in---evidence produced by a witness will be accepted only if such witnesses steps into the witness-box for the purpose of cross- - examination. The affidavit-in-evidence produced by a person who did not offer himself for the purpose of cross-examination, therefore, cannot be made use of. The object of cross-examination is to displace, so far as it is adverse, the effect of examination-in-- chief and as such, it is necessary to put the same witness in the witness box who has tendered evidence in examination- in-chief in whatever form. The delegation of authority to any other person for the purpose of cross- examination defeats the very object of cross-- examination, which if properly conducted, is one of the most useful and efficacious means of discovering truth---.
(ii) M/s. Fakhri Traders v. Mst. Batoool Fida Hussain Sheikh and 4 others (1985 CLC 282, (D.B.)
4. Learned counsel for respondent has argued that no good cause for setting aside ex parte proceedings was shown, therefore, the learned Rent Controller was justified in dismissing the application under Order 9, rule 7, C.P.C. And further that the appellant/tenant was neither entitled to the copy of the affidavit filed by respondent in support of ex parte proceedings nor had right to cross-examine the deponent of the said affidavit. He further argued that learned Rent Controller has no power to set aside the order for ex parte proceedings. He has placed reliance upon Islamuddin v. Abdul Rehman and another (PLD 1986 Kar. 70) and (ii) Province of Punjab and another v. Mst. Maqsooda Begum (19-89 MLD 2170).
5. The facts of Islamuddin's case are different and distinguishable to the facts of instant case as in the cited case final eviction order was passed and thereafter execution application was moved wherein Intervenor Islamuddin appeared claiming to be tenant in possession of the premises and parties were allowed to adduce evidence in the said respect and in the said circumstances the learned Single Judge observed that present rent law prohibits Rent Controller from recalling an order passed ex parte by him and scope under execution proceedings under new rent law is very limited and the Rent Controller cannot entertain objections filed by Intervenor who claim tenancy right in his favour as the same would be a question foreign to the rent proceedings. So far the next cited case, Province of Punjab (1989 MLD 2170) is concerned, the facts of the said case are also quite different and distinguishable to the facts of instant case. In the said case final eviction order was passed and one month time was granted to vacate the premises which order was challenged in Constitution Petition on the ground that provision of Order 8, rule 10. C.P.C. Was not applicable to the proceedings under the Rent Restriction Ordinance and, therefore, the Rent Controller had no authority to make an order de-proving the petitioners of their right to file the reply statement to the ejectment petition. The learned Single Judge observed that the Rent Controller can make an order regarding eviction of tenant if he is satisfied that such order is warranted in accordance with provisions of Ordinance and such satisfaction can be acquired after such enquiry as may be deemed appropriate in each particular case.
6. The facts of instant case are quite different and distinguishable to the facts of cited cases as in the instant case before final order of eviction an application under Order 9, rule 7, C.P.C. Was moved which application was dismissed by the Rent Controller holding that no good cause was shown and thereafter another application under section 19(4) was moved with a request to direct the respondent to supply copy of an affidavit filed by him and to permit the appellant/tenant to cross- examine him but both said applications were dismissed which were moved prior to the final eviction order. There is nothing in the Rent Ordinance whereby it could be said that in case a tenant A failed to file written statement then he would be debarred from participating in the future proceedings to be taken after passing the order for ex parte proceedings. The appellant, if he was not found to have made out a good cause for hearing him in answer to the eviction sought against him, at least he could have been permitted to cross-examine the respondent so as to displace latter's entitlement to the eviction, considering that till then no final order as " to eviction was passed also as to advance justice and not to retard the same on pure technicalities. Strictly speaking that provisions of C.P.C. Have not been made applicable to the rent proceedings under Rent Ordinance except as provided in section 20 of Rent Ordinance yet Rent Controller may always adopt such provision and apply whenever it is considered equitable and just. Right to cross- examine is valuable right of the party and is a means of discovering truth which should not be lightly deprived of. In Province of Punjab and another v. M/s. Muhammad Saeed Malik (PLD 1986 Lahore 135) learned Single Judge observed:-- "Law is well-settled on the point that if ex parte proceedings are ordered against a party, that party can participate in proceedings taking place after the date on which he is proceeded against ex parte without seeking recall of the order by which he was directed to be proceeded against ex parte."
(ii) In Collector Quetta Sub-Division v. Sardar Qasim and three others (PLD 1983 Quetta 1, (D.B.) their Lordships of Division Bench observed that mere absence on the certain date does not make defendant ex parte for the rest of the trial and the hands of the Court are not tied if so-called ex parte order is not set aside.
(iii) Azizullah Khan and four others v. Arshad Hussain and two others (PLD 1975 Lahore 879) wherein learned Single Judge has observed that person proceeded against ex parte not debarred from appearing and participating in the further proceedings.
7. From the general principles of law, it could safely be said that even if the appellant/tenant failed to file written statement and his ground was not considered to be good for the purpose of setting aside the order of ex parte proceedings, the appellant /tenant could not be debarred from participating in the further proceedings to be initiated after the passing of order for ex pane proceedings considering that there is nothing in the Rent Ordinance to oust completely the tenant/appellant, from exercising the right to cross- examine the witness of the respondent/applicant.
8. As the learned Rent Controller has not allowed the appellant to cross-examine the respondent as to his affidavit filed in proof of his eviction application which order cannot be termed to be legal and within the four corners of law, consequently, order of eviction cannot be maintained which is hereby set aside. However, as the order of eviction is set aside the appellant is permitted to file written statement by the next date viz. 6-10-1998. Subject to condition that he would deposit a sum of Rs. 2,000 (Rupees two thousand) as costs in the office of Rent Controller for the respondent. If the appellant fails to deposit cost by the said date he would only be entitled to cross-examine the respondent.
9. The appeal is allowed in terms of the order and case is remanded to Trial Court for its disposal in accordance with law.