2003 PLD 625 SUPREME-COURT

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MUHAMMAD HUSSAIN AFZAL VS ZIAULLAH PLD 1978 SC 231, Civil Procedure Code --Order XIII of C.P.C. Production, Impounding and Return of Documents--9 , Constitution of Pakistan 1973--185 , Constitution of Pakistan 1973--199 , West Pakistan Urban Rent Restriction Ordinance 1959--13 , ----S.13---Civil Procedure Code (V of 1908), O.XIII, R.9---Constitution of Pakistan (1973), Arts.185(3) & 199---Rent Controller, after publication of notice in a daily newspaper, passed an order for taking ex parte proceedings in the case followed by ex parte evidence and order for the eviction of tenant from the property---Possession of the property was delivered to the landlord---Application before Rent Controller under O. IX, R.13, C.P.C. for setting aside the ex parte order/decree on the ground that in fact one of the applicants was the tenant who had not been, impleaded as a party in the ejectment application---Said application was dismissed by the Rent Controller which was affirmed by the Appellate Authority, however, Constitutional petition against the said order was allowed by the High Court---Contention of the landlord was that the High Court was not expected to substitute findings of fact recorded by the Rent Controller and the Appellate Authority; that the application under O. IX, R.13, C.P.C. was not competent before the Rent Controller and that High Court ought not to have set aside the ex parte decree and the Rent Controller could be asked to decide the application for setting aside the ex parte order/decree on its merits after recording evidence of the parties---Validity---High Court had taken a prima facie view on the basis of the documents produced by the applicants for the limited purpose of deciding application for setting aside ex pane order of ejectment ---Rent Controller was yet to determine the real controversy between the parties as to the existence or otherwise of the relationship of landlord and tenant and the grounds on which the ejectment application was founded and it was open to the Rent Controller to arrive at the same or a different conclusion in accordance with law---Law, however, favoured the adjudication of a lis on merits rather than on sheer technicalities---Apart from the provisions of O. IX, R.13, C. P. C, every administrative, judicial or quasi judicial Tribunal had the power to recall ex parte orders in appropriate case in the interest of justice and for valid reasons---Impugned judgment of the High Court did not suffer from any infirmity so as to warrant interference by the Supreme Court---Petition for leave to appeal was dismissed.