The appellant is the tenant of the respondent in a residential tenement comprising of two rooms at a monthly rent of Rs.
65. On 20-8-1976 the respondent filed application under section 30 of the Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance) for ejectment of the appellant on the sole ground of non-payment of rent with effect from 1-5-1976. Pursuant to the notice issued by the Rent Controller the appellant put in appearance through his counsel on 20-10- 1976. However, the case was adjourned to 13-12-1976 as the Presiding Officer of the Court of the III Rent Controller was transferred. When the case was called up on the last-mentioned date before the successor-in-office of the former Rent Controller, the Advocate for the applicant was present but no one was present on behalf of the opponent. The case was then adjourned to 22-12-1976 for further proceedings. On 22-12-1976 the Advocate for the applicant was present but once again no one was present for the opponent and no written statement was filed. Therefore, the learned Rent Controller ordered the case to proceed ex parte against the opponent and adjourned the case for ex parte proof to 14-1-1977. Eventually, on a subsequent date of hearing, vie. 21-1-1977 the applicant filed his affidavit by way of ex parte proof and on 26-1-1977 the learned Rent Controller passed ex parte ejectment order against the appellant.
2. On 4-3-1977 the respondent filed execution application upon which the learned Senior Civil Judge and Rent Controller ordered notice to the appellant for 29-3-1977. The appellant appeared on this date and obtained time for filing objections. On 8-4-1977 the appellant filed objections to execution as well as application under Order IX, r. 13, C. P. C. Read with section 151, C. P. C. For setting aside the ex- pane ejectment order. The plea of the appellant, inter alia, was that after his Advocate filed power before the learned Rent Controller he fell ill and remained confined to bed until the third week of March, 1977 without having the knowledge that an order of ejectment was passed against him. He further alleged that on receipt of the notice of execution application, he came to learn through his Advocate for the first time on 24-3-1977 about the passing of the ex parte ejectment order. Along with his application for setting aside the ex pane eiectment order, the appellant also filed an application under section 5 of the Limitation Act seeking condonation of the delay in filing the application. After hearing the parties' counsel the learned Rent Controller by separate orders dated 12-11-1977 dismissed both applications, upon taking the view that no sufficient cause for condonation of delay had been made out.
3. The appellant went up in appeal against the aforesaid two orders which came up before the learned III Additional District Judge and appellate authority, Karachi. Before him it was contended on behalf of the appellant that the provisions of Order IX, rule 13 were not attracted in proceedings under the Ordinance and consequently the limitation prescribed under Article 164 of the Limitation Act could not operate as a bar to the filing of application for setting aside the ex parte ejectment order, which could be set aside by the learned Rent Controller, in exercise of his power conferred on him under the General Clauses Act to vary, rescind, alter and to recall orders originally passed.
Reliance in this behalf was placed on Muhammad Aslant Mirza v. Khurshid Begum (PLD 1972 Lab.
603). The learned Additional District Judge, however, came to the conclusion that the cited case did not support the contention raised on behalf of the appellant inasmuch as, according to the learned Judge the majority view in the precedent judgment was that it is competent for the Rent Controller to set aside the ex parte order under Order IX, rule 13, C. P. C. And no opinion was expressed as to the period of limitation for presenting such an application. For .The latter purposes the learned Judge followed the decision reported as Hazoor Bux v. Muhammad Yakoob (PLD 1975 Quetta 39) in which it was held that proceedings under section 13 of the Ordinance are in part materia with a suit and provisions of Order IX, rule 13, C. P. C. As well as the provisions of Article 164 of the Limitation Act would, therefore, apply to proceedings for setting aside ex parte ejectment order under the Ordinance. In view of the matter the learned Additional District Judge reached the conclusion that the application of the appellant under Order IX, rule 13, C. P. C. Was hopelessly time barred and dismissed the appeal by his judgment dated 30-3-1978. Aggrieved by this decision the appellant has come up in second appeal before this Court.
4. Before me Mr. M. A. Hashmi, learned counsel for the appellant reiterated his contention that Article 164 of the Limitation Act is not attracted to the proceedings under the Ordinance and, therefore, the learned Additional District Judge was in error in throwing out the appeal on the ground of limitation. In support of his submission he once again placed his reliance on the Full Bench decision of the Lahore High Court in case of Muhammad Aslam Mirza referred to above. As the learned Judges who decided the said case have made a thorough and exhaustive examination of the pertinent case-law, it will be advantageous to refer to the facts of that case in some detail and the conclusions arrived at by their Lordships constituting the Full Bench. The landlord in that case had also filed an application under section 13 of the Ordinance for ejectment of his tenant. After the tenant was duty served, he filed his written reply resisting the request for his ejectment. But when the case was called up on 21-7-1965, neither the appellant nor his counsel appeared at the hearing and e.x purse proceedings were taken for his ejectment from the premises. Afterwards on 3-9-1965, however, the tenant applied to the Rent Controller under Order IX, rule 13, C. P. C. To set aside the ex parse order passed against him on the plea that his counsel had to leave town on account of illness of his son and during his absence the order for his ejectment was passed ex parte. The tenant claimed that he learnt about the order for the first time on 3-9-1965 when he submitted the application. The landlord opposed the application and raised the plea of time bar maintaining that no sufficient cause for setting aside the ex parte order was made out. The Rent Controller, however, without going into the merits, dismissed the application on the short ground of limitation, as barred by time under Article 16-1 of the Limitation Act. The tenant brought an appeal before the High Court against the order. The Division Bench of the High Court while admitting the appeal ordered that in view of a conflict of opinion prevailing in the High Court, the question raised in the appeal as formulated by the D. B. Be referred to the Full Bench for decision: The question formulated by the admitting Bench was as under: "Whether the Rent Controller can set aside an ex parte order ?"
The. Conclusion according to the majority view on the review of case-law was summarized by K. E.
Chauhan, J. (as he then was), as follows "My study of the above case-law, however, gave me an impression that where for example the defendant had no notice of the date of hearing or where he prayed for an adjournment which was refused and he was proceeded ex parte or where the record of the trial Court can itself show that there was no justification to proceed ex parse against the defendant or that there has taken place an error, defect or irregularity in the matter of proceeding ex parte against him or in the procedure of the trial in that behalf, there a defendant can always raise all these points in appeal, but in cases where this is not the situation, there the defendant-appellant will be in a great disadvantageous position ; because the Court of appeal will not be in possession of the materials which prevented his appearance. In these cases, such grounds will not be available for being taken in appeal either.
What then is to be done ? The only reasonable view, therefore, is to hold that the defendant will have a right to approach the original Court to claim an opportunity to show cause for his absence and demand a re-trial of the matter."
This view was taken upon the proposition that there always exists an implied and inherent power in every Tribunal to set aside orders passed in the default of appearance of party, although it .Is now well settled upon high authority that a Rent Controller is not bound to follow the procedure laid down in the Code of Civil Procedure. Following an earlier case reported as Siraj Din v. Mst. Iqbal Begum (PLD 1968 Lab. 639) his Lordship summarised the final conclusion (the majority view) in the following words;--- "Taking the same view, therefore, I hold that Civil Procedure Code, is not applicable to a Rent Controller for 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 Ahmed Zaidi v. S. M. Hussain is not correct only to this extent. But on general plan a Rent Controller is not precluded on the basis of natural justice to recall an Order made ex parse against the tenant on the ground that he was precluded on the relevant date from appearing due to a sufficient cause."
There was unanimity in the opinion of all the learned members of the Bench that Article 164 of the Limitation Act was not applicable in a proceeding under the Ordinance and, therefore, the limitation provided therein would not apply to an application for setting aside an ex parte Order passed by the Controller. However, the Bench left the question open whether Article 181 of the Limitation Act would be applicable to such an application as on the facts of the case the question was not material.
5. On the authority of the aforesaid case, learned counsel contended that the application of the appellant was competent under the law and the learned Rent Controller ought to have considered the question whether the appellant was prevented from appearing in the case for sufficient cause.
6. Mr. Muhammad Sharif, learned counsel for the respondent, on the other hand, maintained that the case of Muhammad Aalam Mirza does not lay down the correct law and contended that as held in Hazoor Bux v. Muhammad Yakoob, the Rent Controller wail bound to follow the provisions of Article 164, Limitation Act as the provisions of Order IX, rule 13, C. P. C, apply to proceedings for setting aside ex parte Order under the Ordinance by analogy. So far as the case of Hazoor Bux is concerned, the learned Single Judge did not notice the Full Bench case referred to above and in taking the view as mentioned earlier, be followed Din Muhammad v. Abdul Aziz (PLD 1967 Lab. 653) but that case was duly noticed by the Full Bench and overruled on the ground that section 141, C. P.
C. Is not applicable to proceedings under the Ordinance. Learned counsel for the respondent, however, submitted that the Full Bench had assigned the following reasons for holding that Article 164, Limitation Act is not applicable to an application for setting aside ex parte Order under the Ordinance:-----
(i) Strictly this Article is applicable to "defendant" on his application to set aside a "decree" passed ex parte against him in a suit but the proceedings under the Ordinance are not the proceedings in a suit.
(ii) The proceedings under the Ordinance are not judicial proceedings as the Rent Controller acts in the capacity of persona designate and, therefore, the proceedings are not governed by section 141, C. P. C.
(iii) Section 2(10) -of the Limitation Act provides that the word "suit" does not include an appeal or an application and since the proceedings under the Ordinance commence with an application ex parte Order passed therein is not an ex parte decree.
In regard to the first point, learned counsel argued that the assumption that Article 164 is attracted only to applications under the C. P. C. Is untenable inasmuch as Article 164 does not refer to C. P. C.
However, I find nothing in the judgment of the Full Bench to indicate that such an assumption was made. It was only held that this Article, by its terms, is applicable to an application to set aside a "decree" passed ex parte in a "suit" by a "defendant" and, therefore, Article 164 is not applicable to an application to set aside an ex parte Order made under the Ordinance. Article 164 was not made applicable further on the ground that section 141 of the Code of Civil Procedure is not at all applicable to proceedings before the Rent Controller. There cannot be any dispute in view of the authoritative announcement of the Supreme Court in Khadim Mohvuddln and another v. Ch. Rehmat Ali Nagra and another (PLD 1965 SC 459) that the Code of Civil Procedure is not applicable to proceedings under the Ordinance by its own force. Learned counsel, however, cited two old decisions reported in (1914) I L R 37 Mad. 462 and (1914) I L R 41 Cal. 819 and argued that Order IX, rule 13, C. P. C. Was made applicable to orders passed in execution of a decree and to probate proceed--ings. As far as the first case is concerned, the reason that prevailed with the learned Judges was that Orders passed in execution proceedings under section 47, C. P. C. Are decrees as defined in section 2 of the Code and hence ex parte orders passed in execution are ex parte decrees to which Order IX, rule 13 would be attracted. Obviously this line of reasoning cannot be extended to an ex pane Order passed under the Ordinance as such an Order is' not an Order in execution of a decree and the definition of the word "decree" in section 2(2) of the C. P. C. Does not govern such Orders. In any case the section 2(2), C. P. C. Stood amended at the relevant time whereby the definition of "decree" no longer included an Order passed in execution under section 47, C. P. C. (vide Law Reforms Ordinance XII of 1972). The second case cited by the counsel does not seem to support his submission as the question of applicability of Article 164, Limitation Act to probate proceedings was left open and the application for setting aside ex parte Order granting probate was dismissed on the ground that the applicant was not a "defendant" in the case within the meaning of Article 164. For reasons already mentioned the contention of the learned counsel that the definition of the word "suit" in section 2(10) of the Limitation Act excluding, inter alia, an application does not apply to proceedings in the nature o B suit as are the proceedings under section 13 of the Ordinance, is also untenable in view of the fact that the Code of Civil Procedure is not applicable proceedings under the Ordinance by virtue of its section 141.
7. It was then argued by the learned counsel for the respondent that section 3 of the Limitation Act is applicable to proceedings under the Ordinance and consequently Article 164 will be attracted in case of an application for setting aside an ex parte ejectment Order. Apart from what has been stated above, his contention is devoid of substance. Reliance in this behalf was placed on a case reported in AIR 1946 Mad. 351 which does not appear to be relevant to the point under consideration. Reliance was also placed on Imperial Bucket Company v. Sint. Bhagwati Basak (AIR 1954 Cal. 520) where it was held that the words "suit, appeal or application" occurring in section 29(2)(a), Limitation Act cannot be construed to refer only to suit or appeal filed in a Court but must be extended even to suit or appeal before a persona designate. Even .If this interpretation is accepted, it does not advance the case of the respondent. I might here refer to a recent decision of the Supreme Court reported as M. Imamuddin v. Thai Development Authority (PLD 1972 SC 123) wherein it was held that Article 181, Limitation Act, which is in the nature of residuary Article, must necessarily be extended to all kinds of applications for which no specific period of limitation has been provided for either in the First Schedule to the said Act or in any other statute. Thus their Lordships repelled the contention that the Articles contained in the Third Division of the First Schedule to the Limitation Act apply only to applications under the Code of Civil Procedure.
Therefore, even if the Third Division of the Schedule is applicable to an application for setting aside ex parte Order of ejectment, Article 164 does not in terms apply to such an application and at best Article 181 - may be attracted which prescribes a period of 3 years for the making of application.
8. For all the aforesaid reasons I find no substance in the arguments of Mr. Muhammad Sharif that the case of Muhammad Aslam Mirza does not lay down the correct law. The position has now been finally settled by the latest pronouncement of the Supreme Court in Manzar Bashir v. M. A. Asghar & Co. (PLD 1978 SC 231) where their Lordships have laid down that in a case where the Rent Controller passed an ex pane order against the tenant when in fact he was not duly served, the Order would be illegal being in violation of the principles of natural justice and will be liable to be set aside by the Controller in exercise of his inherent power, for, in law such' a power is possessed by every Tribunal. In this case their Lordships noticed the case of Muhammad Aslam Mirza and approved the majority view as to the powers of the Rent Controller to set aside the Order of ejectment in exercise of his inherent power. Respectfully, following the view, held in the case of Muhammad Aslam Mirza, I hold that Article164 of the Limitation Act was not attracted to the application of the appellant for setting aside the ex part C Order and the learned Additional District Judge was, therefore, in error in dismissing the application on the ground of limitation.
9. In the result, I allow this appeal and set aside the Orders of the learned Additional District Judge and the Rent Controller in appeal before me. However, since the learned Rent Controller did not advert to the merits of the case as to whether sufficient cause was established for setting aside the ex parte Order, I would remand the case for decision on merits to him. The records of this case shall be forwarded to the Court of III Rent Controller, Karachi where the case shall be registered under the same number and disposed of according to law. In the circumstances of the case, there will be no order as to costs.