1. The facts leading to this second appeal are that the appellant is a tenant of second floor of the House No. F/898 situated on Station Road, Gari Khata, Hyderabad. The house was transferred by the Settlement Department to one Mst. Wazir Jehan Begum who after giving notice to the appellant under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, gifted the house to her son-in-law, Iqbal Hussain alias Iqbal Lodhi. As no rent was paid by the appellant, the said Iqbal Hussain, oil 18-11-1968, filed an application before the Rent Controller, Hyderabad for ejectment of the appellant for non-payment of rent and on the ground of requirement of the premises for his personal use. The appellant contested the application and denied both the grounds and raised the pleas in his written statement, that Iqbal Hassan had no locus standi to file the application as he had no title deed in his favour, that rent demanded from him at the rate of Rs.
2. 40 per month was excessive as he used to pay only Rs. 20 p.m. To the Custodian and that the notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act had not been served on him.
3. Dispute regarding relationship of landlord and tenant between the parties having been raised, the learned Rent Controller framed the necessary preliminary issue on which both the parties led evidence. The learned Rent Controller, by his order dated 14-9-1970, decided the issue by holding that the relationship of landlord and tenant existed between the parties. The appellant challenged the order in appeal which was however dismissed as being not maintainable in law. In the meantime, the rent case was transferred to another Court. The transferee Court, on its own motion, directed notice to issue to the parties and the case came up before it for hearing successively on 29-5-1971, 15-6-1971, 21-7-1971 and 15-9-1971, but on all these dates neither of the parties appeared and the case was thereafter fixed on 18-10-1971. On this date, however, applicant Iqbal Hassan appeared but no appearance was made on behalf of the appellant tenant. Thereafter, on 19-10- 1971, applicant Iqbal Hassan filed an application under section 476, Cr. P. C. Which was fixed for bearing on 30-10-1971, but as costs were not paid by him, no notice of the application was issued.
4. Applicant Iqbal Hassan subsequently paid the costs and the application was fixed for hearing do 18-11-1971. On 18-11-1971, however, the learned Rent Controller proceeded to pass the rent order ex parse against the appellant directing him to deposit arrears as well as future rent before the specified dates. It may be stated here that it is an admitted position that no notice either of the transfer of the case or of any of the aforesaid dates of hearing fixed before the transferee Court, including the date 18-11-1971 on which the rent order was passed, was served either on the appellant or his Advocate. Applicant Iqbal Hassan thereafter moved an application under section 13 (6) of the Ordinance for striking off the defence of the appellant for non-compliance of the rent order. The learned Rent Controller directed issuance of notice of this application to the learned counsel for the appellant tenant for hearing on 20-1-1972, which notice was returned by the learned counsel with the following endorsement;----- "It is submitted that the undersigned has already returned the papers to the opponent. Hence the notice may kindly be sent to the opponent directly."
5. Thereafter, the learned counsel also appeared personally before the learned Rent Controller on 20- 1-1972 and made an application that since he had returned the papers, notice be sent to the appellant directly. The learned Rent Controller, however, refused the request of the learned counsel by observing that it was the counsel's duty to defend the case diligently, and proceeded to strike off the defence of the appellant by his order dated 20-1-1972. Thereafter, on 22-1-1972, the appellant made an application to the learned Rent Controller for setting aside the ex parte order passed by him for want of notice but the same was rejected by the learned Rent Controller by his order dated 23-2-1972, on the ground that if the appellant was aggrieved by the rent order he could have gone in appeal. He, however, said nothing in his order whether the cause assigned by the appellant was sufficient or not. The appellant thereafter went in appeal wherein he challenged the order of rent, the order striking off his defence and the order refusing to set aside the ex parte order. The learned District Judge, Hyderabad, however, dismissed the appeal by his judgment dated 22-5-1972, for the reasons that the appellant had chosen to remain absent on the date the order for deposit of rent was passed and that the appellant's Advocate could not evade the responsibility by merely stating that he was not appearing for his client. Hence this second appeal.
6. Alongwith the appeal, appellant applied for stay of the order of ejectment which was granted to him subject to his depositing the arrears and continuing to deposit future monthly rent before 15th of every month The appellant continued to deposit monthly rent regularly for 5 years in the lower Court at Hyderabad, but for the month of May 1977, he deposited the rent on 5th of July.
7. Consequently, the respondents, who having purchased the premises from Iqbal Hassan during the pendency of the appeal were substituted as respondents in place of Iqbal Hassan by the order of this Court dated 7-2-197 7, applied for striking off the defence of the appellant The appellant while opposing the application explained in his affidavit that he wanted to deposit rent for the month of May before June 15th, but since the Court at Hyderabad was in vacation during the month of June, he bona fide believed that he bad to deposit it before 15th of July, although he deposited it on 5th of July and prayed that delay of three days, 1st July being a public holiday, be condoned. Both, the appeal and the miscellaneous application, were; directed to be heard together by the consent of the learned counsel for the parties. Accordingly, both the appeal as well as the miscellaneous application are being disposed of by this judgment.
8. Mr. S. Abbas Zia, learned counsel for the appellant, contended that since admittedly, no notice either of the transfer of the case from the original Court or of the dates of hearing fixed before the transferee Court of the present Rent Controller, including of the date 18-11-1971 on which the rent order was passed, was served on the appellant or his Advocate, the rent order was null and void and, consequently, the defence of the appellant could not be legally struck off for non-compliance of such null and void order. In support, the learned counsel relied upon PLD 1970 Lah.
6. He next contended that the learned Rent Controller was also wrong in striking off the .Defence of the appellant on 20-1-1972, inasmuch as, the notice of the application served on the Advocate of the appellant for that date was returned by the learned counsel with the endorsement that he bad returned the papers' to the client and the learned counsel also appeared personally before the learned Rent Controller on the date fixed for hearing of that application and made an application for issuing notice of the application to the appellant directly whereafter it became obligatory on the learned Rent Controller to have issued notice to the appellant directly, and he could not have proceeded to strike off the defence of the appellant without giving notice to .The appellant. In support of his contention, the learned counsel relied on AIR 1925 Mad. 21 and PLD 1963 Lab. 489.
9. Both the contentions of the learned counsel are well-founded. It is not disputed that no notice, either of the transfer of the case from the first Court, or of the various dates, of hearing fixed before the transferee Court of the present learned Rent Controller, up to the date on which the rent order was pas3ed, was served on the appellant or his Advocate. It is also an admitted position that no notice of the date of hearing vi:. 18-11-1972, A on which the ex parte rent order was passed by the learned Rent Controller, was served on the appellant or his Advocate. That being so, the learned Rent Controller, indeed, acted improperly in passing, behind the back of the appellant as well as his Advocate, the rent order entailing penal .,consequences of ejectment of the appellant.
10. Further, it is also an admitted position that after the learned counsel for the appellant received the notice of the application for striking off the 'defence of the appellant, he returned the notice with the endorsement that he had returned the case papers to his client and requested for issuing the notice to the appellant directly and thereafter appeared before the Court on the date fixed for hearing of that application and made an application to the Court for issuing notice to the appellant directly before deciding the application. This much done by the learned counsel, it was only proper and, indeed, obligatory on the part of the learned Rent Controller to have issued notice to the appellant and he was not justified in deciding the application for striking off the defence ex parte against the appellant by holding that the learned counsel had not pursued the case diligently. Indeed, the learned counsel having returned the papers, he could not have done more than what he did and I should rather think that he acted with utmost responsibility as an Advocate.
11. Similar situation arose in the case reported as Holy Trinity Church Trust v. Arisari Bros. (PLD 1963 Lab. 489), wherein the learned counsel had returned the summons from the Court by stating that he Was no longer the counsel for the party he had represented. The learned Rent Controller, however, proceeded the case and passed ex parte order against the respondent therein, holding that as Vakalatnama of the counsel had not been determined by the Court in accordance with para. 2 of Order III, rule 4 of the Code of Civil Procedure, service on the counsel amounted to service on the party. In appeal, the Appellate Judge disagreed with the Rent Controller and held that no proper service was made on the party. The order was challenged in the second appeal in the High Court. The learned and able Judge in the High Court, namely, Mr. Justice Sajjad Ahmed Jan, as he then was, concurred with the learned District Judge in holding that the Rent Controller should have issued process for the party itself and the ex parte order made by the Rent Controller against the respondent was improper. The relevant observations made by the learned Judge at page 498 of the report may be reproduced with advantage as under;---- "It is not shown that be continued to be his counsel thereafter, and when Mr. Masud Butt himself stated on receipt of the summonses from the Court that he was no longer the counsel for the party he had represented, the Court could not have possibly insisted that he was still the counsel. On the refusal. Of Mr. Masud Butt to accept service it was only proper that the Court should have issued process for the party itself. In the case of Satiapal and others v. Sant Ram and others AIR 1934 Lab.
12. 91, a similar situation arose. After the transfer of a case to the transferee Court the latter issued notice to the plaintiffs personally, to their counsel and to the defence to appear in his Court. The notice issued to the plaintiffs personally was not served. The notice to their counsel was tendered to him but he declined to accept it on the ground that he was no longer representing them. The note made by the counsel on the notice was brought to the notice of the Judge but he took no action either to serve the plaintiffs personally or to inform the counsel that service on him would be considered to be service on his clients. On the date fixed nobody appeared for the plaintiffs and the trial Court dismissed the suit. The learned Judge, Jai Lai, J., held that it was unfair to penalise the plaintiffs for the conduct of their counsel even if it was illegal, and especially because the failure of the counsel to accept service was brought to the notice of the Court in sufficient time to enable it to serve the plaintiffs personally. I am in respectful agreement with this view and would only add that in enforcing the rigour of law with regard to process, care should always be taken that the main purpose of the issue of process is not defeated, namely, that the party itself, either personally or through recognized legal agency, which includes a duly appointed counsel with subsisting authority for representation is duly informed of the proceedings and is not condemned without a notice. In this view of the matter I concur with the decision of the learned District Judge that the ex parse order made by the Rent Controller on the 4th of November 1960 against the respondent was improper."
13. I am in respectful agreement with the above view which is applicable to the facts of the instant case with more force, as here, the learned counsel for the appellant did not only return the notice with the endorsement but also appeared personally in the Court on the relevant date and repeated the request in writing. In this view of the matter, the learned Rent Controller, indeed, acted improperly and illegally by striking off, ex parte the defence of the appellant for non-compliance of rent order which itself was improperly passed ex parse against the appellant. It was, however, contended by Mr. Muhammad A.I Shaikh, learned counsel for the respondents, that in case where transfer is made from one Court to another Court, otherwise than on the application made by a party, it was not necessary to serve the patties with notice of the transfer of the case in view of section 24 (A) (ii), C. P. C. And, therefore, the Rent Controller was right in striking off the defence of the appellant.
14. I see no substance in the argument of the learned counsel. Firstly, provisions of Civil Procedure Code, in terms, are not applicable to the proceedings before the Rent Controller. Secondly, in any case, subsection (2) of section 24 in case of suo motu transfer provides for communicating the order of transfer and direction to the parties to appear before the transferee Court, and it is an admitted position that no such communication was made or direction given to the appellant or his counsel. Be that as it may, in the instant case, the transferee Court itself considered it necessary to issue notice to the parties whereafter it was only proper that the learned Rent Controller should have ensured that the notice of the proceedings before him was served either on the appellant or his Advocate and he ought not to have proceeded to pass the rent order ex parse as it entailed penal consequences of forfeiture of tenancy which, indeed, was a valuable right and a party could not be deprived of it without being given a fair opportunity of defending the right. Yet another reason against the contention of the learned counsel for the respondent is that after transfer, the case was fixed before the transferee Court on 25-tr-1971, 21-7-1971, 15-9-1971 and 25-9-1971, but on none of the hearings the appellant Muhammad Iqbal Hassan or his counsel was present. If, therefore, provisions of C. P. Code applied, the application ought to have been dismissed in view of the provisions of rule 3 of Order IX, C. P. C, Mr. Abbas Zia, was, therefore, right in submitting that if so much latitude bad been shown to the respondent by not dismissing his application in spite of his absence on the several dates of hearing, the learned Rent Controller could have as well n shown the indulgence to the appellant for issuing him the notice after such a request was expressly made to the Court by the learned counsel for the appellant, particularly when ejectment of the appellant was involved.
15. Mr. Muhammad A.I Shaikh, learned counsel for the respondent No. 1 also contended that the first appeal filed by the appellant before the Appellate Authority below was time barred. His argument was that after the defence of the appellant was struck off by the learned Rent Controller on 2C-1- 1972, the appellant did not file appeal against the older but applied for setting aside the ex parte order and filed the appeal after his application for setting aside the ex parse order was dismissed, and since by then period of 30 days from the date of ' striking off the defence of the appellant had expired, the appeal was time-barred. He, however, conceded that, if .The period of limitation was counted from the date of the order refusing to set aside the ex parte order, the first appeal would be within time.
16. I see no substance in this contention as well. It is an admitted position that after the ex pane order striking off the defence of the appellant was passed on 20-1-1972, the appellant applied to the learned Rent Controller on 22-1-1972, after two days, for setting aside the ex. Parse order, and after his application was rejected by the learned Rent Controller, he filed appeal against that order well within time. That being so, the first appeal filed by the appellant was filed well within time and was not barred. This very situation arose in the case reported as N. Q. Industries v. Bapai Kaikhusro (PLD 1968 Kar.589), and the learned Single Judge while repelling the similar conten--petition as raised by Mr. Muhammad A.I Shaikh, observed as under;--- "In this case it was held that an order tentatively determining the amount of rent under section 13
(6) of the Ordinance, approximates in nature the order striking off the defence under the same subsection for failure to deposit arrears of rent as ordered be the Controller, and accordingly, the former order, being approximate of the same nature as the latter order, would be appealable under section 15 (1) (b) of the Ordinance. On this reasoning, the order refusing to set aside the earlier ex parte order of eviction should also approximate in nature the order of eviction and would, like the latter order be appealable to the first appellate authority. Thus the first appeal against the Controller's order refusing to set aside the earlier decision of ex parte eviction was competent in law, and the learned Additional District Judge fell in error in holding that no appeal lay to him from this order."
17. I respectfully agree with the above observations of the principles enunciated in the case. Indeed, after the attention of Mr. Muhammad A.I Shaikh was drawn to the aforesaid case, he frankly conceded that it fully applied to the facts of the instant case and did not further press his contention and did not cite any decision to the contrary to persuade me to take a different view.
18. Lastly, the learned counsel contended that during the pendency of this second appeal, the appellant bad committed default of 3 day, in complying with the order passed by this Court, inasmuch as, he deposited future rent for the month of May 1977, on 5-7-1977 and, therefore, his defence was liable to be struck off. To meet the contention: Mr. Abbas Zia in reply submitted that the appellant was granted stay subject to the condition of his depositing arrears and future rent ; consequently, when the appellant failed to comply with the condition by not depositing the rent for one month in time, the affect was that the stay granted to him stood vacated and the respondents were free to execute the ejectment order, but the defence of the appellant could not be struck off under section 13 (6) of the Ordinance, as depositing of rent was a condition of granting stay and not an order under section 13 (6) of the Ordinance. In support, the learned counsel relied on PLD 1970 Kar. 599. The learned counsel further submitted that the main appeal having been heard it will be only appropriate that decision in appeal should alone rule, as otherwise it will be anamolous if, on the one hand, the appeal is allowed and, on the other, defence of the appellant is struck off and he is ejected from the premises against which he had come in appeal.
19. The learned counsel lastly submitted that even if it be assumed that the appellant had technically committed default, it was not wilful as after passing of the order on 1$-9-1972, appellant had been depositing rent regularly for 5 years which only showed that he was quite conscious of his obligations and he had been discharging them faithfully and he would not have allowed the mishap to take place but for his bona fide belief as explained by him in his counter-affidavit which had not been rebutted.
20. I am inclined to agree with the learned counsel for the appellant. The file would show that on the application made by the appellant for staying the execution of the order of ejectment passed against him, the Court, on 8-6-1972, granted interim slay without any condition and, on 18-9-1972, confirmed the stay, with the consent of the respondents, subject to the appellant depositing arrears and future rent as directed. The effect of such an order could only be that the stay was to continue only so long as the appellant deposited rent as directed, but the moment he did not deposit it as directed, the interim stay was to cease to continue entitling the respondents to execute the order of ejectment, irrespective of the appeal F having been admitted and pending, but the defence of the appellant cannot be struck off under section 13 (6), as such an order, to my mind, does not strictly fall within the ambit of section 13 (6) but is an order attaching conditions to the grant of stay. Such an interpretation would also be in accord with the normal rule followed by the appellate Courts regarding the consequences of breach of a conditional stay order granted by it on admission of appeal under the Civil Procedure Code. I am supported in my view by the Division Bench case reported as PLD 1970 Kar. 599. In this reported case, while dealing with a similar question, the Division Bench held that on the failure of tenant to furnish security in terms of the stay order would only lead to vacation off the stay order granted by the appellate Court, and not striking of the defence of the tenant under section 13 (6) of the Ordinance, and the appeal itself would remain unaffected and will have to be disposed of on merits. The relevant observations may be reproduced as under;---- "It is not denied that the only occasion when the appellate authority would direct a tenant to furnish security would be if he makes an application for the stay of the eviction order of the Controller. This application would be in the nature of an interlocutory application and in case it is allowed by the appellate authority the tenant will have to furnish security according to the peremptory requirement of the second proviso of section 15 (5) of the Ordinance. In case, the tenant fails to comply with the said order' then the Appellate Authority would be obliged to vacate the stay order and dismiss the stay application. In this eventuality it would be open to the landlord to approach the Controller to seek the eviction of the tenant for his failure to deposit tentative rent in compliance with the order against which he had gone in appeal before the Appellate Authority.
21. The result would be that the stay application (of the tenant-appellant) would be dismissed, but his appeal itself would remain un-affected -----------".
22. I respectfully agree with the above observations, apart from the fact that it being a Division Bench decision it is binding on me, sitting singly. I am conscious that the view taken in the aforementioned Division Bench decision was not followed by the learned Single Judge in PLD 1974 Kar. 10, but in PLD 1975 Kar. 66, 1 had, on the basis of the unnoticed Supreme Court case referred to therein, respectfully pointed out against the acceptance of the view expressed in PLD 1974 Kar. 10, and followed the view taken in the above cited Division Bench decision with which I still agree. Be that as it may, assuming that the order passed by the Court while granting stay amounted to an order under section 13 (6) of the Ordinance, and the Court could strike off the defence of the appellant for committing breach of the order, the circumstances of the present case do not justify striking off the defence of the appellant for his failure to deposit rent for the one month of May 1977, in time.
23. It is not disputed that after the appellant was granted the stay, he deposited the arrears within time and also continued to deposit future monthly rent regularly for 5 years, which went to show that the appellant was conscious of his obligation as a tenant. It is also not disputed that the civil Courts, Hyderabad remain on vacations in the month of June and no civil work is transacted in the Courts except urgent judicial work. This is confirmed even by the application under section 13 (6) made by the respondents, inasmuch as, the allegation made therein is that the appellant had deposited the rent late by 3 days. In view of this admitted position, it could well be that the appellant bona fide believed that he could deposit rent before 15th July, although he deposited it on 5th of July, and no counter affidavit or rejoinder has been filed by the respondents challenging the assertion of the appellant made in his affidavit. That being so, I have no reason to disbelieve the appellant and I hold that, in the circumstances of the case, appellant's failure to deposit the rent in time for one month, after he had been depositing rent regularly for five years, was not wilful and it does not call for striking off his defence. And then, having held, after being fully convinced, that the rent order and the order striking off the defence of the appellant were improperly passed and allowed the appeal it will also not be just and proper to strike off the defence of the appellant at this stage, although I have held the default to be not wilful independently of it.
24. Thus, the rent order having been improperly passed in the absence of the appellant having been also improperly struck off in his absence, the impugned orders passed by the learned Rent Controller, including the order refusing to set aside, without any valid reason, the ex parte order striking off the defence of the appellant were not sustainable in law. The first appellate authority does not appear to have taken into consideration this important aspect of the case and has proceeded to dismiss the appeal merely on the ground, firstly, that the appellant had chosen to remain absent on the date when the rent order was passed and, secondly, the learned counsel for the appellant was negligent. It would, however, be noticed that no notice of the date of hearing on which the rent order was passed was, admittedly, given either to the appellant or his counsel, and that being so, the question of the appellant having chosen to remain absent on the date of hearing did not arise, and, for the reason shown above, it also could not be legitimately said that the learned counsel for the appellant was negligent.
25. For the aforesaid reasons, while dismissing the C. M. A. 1429 of 1977, I allow the appeal and set aside all the impugned orders and direct that the eviction application filed against the appellant be decided on merits. To avoid delay, no fresh rent order need be passed and the appellant shall continue to deposit future monthly rent as before. In case, however, he com--mits default in depositing the rent during the proceedings before the learned Rent Controller, it shall be open to the learned Rent Controller to strike off his defence according to law on the basis as if breach was committed of his own order. In the circumstances of this case, I make no order as to costs.