2003 PLD 581 LAHORE-HIGH-COURT-LAHORE

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MUSHTAQ HUSSAIN VS Chaudhary MUHAMMAD BAKHSH (ADVOCATE) Civil Procedure Code --Order IX of C.P.C. Appearance of Parties and Consequence of Non-Appearance--12 , Civil Procedure Code --Order IX of C.P.C. Appearance of Parties and Consequence of Non-Appearance--13 , Constitution of Pakistan 1973--199 , West Pakistan Urban Rent Restriction Ordinance 1959--13 , West Pakistan Urban Rent Restriction Ordinance 1959--17 , ----Ss. 13 & 17---Civil Procedure Code (V of 1908). O. IX, Rr.13 & 12(2)--¬Constitution of Pakistan (1973), Art. 199---Constitutional jurisdiction of High Court---Scope---Question of fact---Question of law---Application for setting aside the ex parte eviction order by the Rent Controller duly confirmed by the Appellate Authority was dismissed by both the said forums---Validity---High Court, while deciding a Constitutional petition under Art.199 of the Constitution could not go into a question of fact like that of difference of addresses, which was neither raised nor dealt with by the Tribunals below---Present case, however, proceeded on extraordinary premises; wherein inquiry into the question of fact was effectively blocked and shrouded in questions of procedural intricacies by the respondent, a Senior Advocate of the High Court adept in the matters of procedural law and technical polemics---Question of fact regarding different addresses, circumstances, required to be settled in an inquiry by the Rent Controller through framing of issues and taking evidence but non-framing of issues and non-holding of inquiry on question of fact raised in petitioner's application for setting aside ex pane order was admittedly a question of law---Petitioners were, therefore, within their right to either further particularize their pleadings in the application or to substantiate allegations of fraud through presenting evidence thereupon---High Court, exhaustively noting the facts and implications of the whole matter pointed out the questions of facts having bearing upon the questions of law involved in the present case and in order to do complete justice accepted the Constitutional petition holding that High Court was not barred from taking notice of the said questions--¬Impugned orders of the Rent Controller and the Additional District Judge were declared to be without lawful authority and of no legal effect---Matter was remitted back to the Rent Controller for re-decision of petitioner's application for setting aside ex parte ejectment, which shall be deemed to be pending; Rent Controller after obtaining reply of the respondent would frame issues, record evidence of the parties and decide the same in accordance with law---Executing Court shall also decide pending objection petition of one of the petitioner in accordance with law, if so deemed appropriate upon decision of application for setting aside the ex parte ejectment order and during pendency of the said application, petitioners shall not be dispossessed from the suit property.