2017 YLR 1622 PESHAWAR-HIGH-COURT

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LUTFULLAH VS SHAHID INAYAT Cantonments Rent Restriction Act 1963--17 , Cantonments Rent Restriction Act 1963--27 , Civil Procedure Code --Order XVII of C.P.C. Adjournments--3 , Eviction of tenant--TERM , Wilful default--Words and , Ss. 17 & 27---Civil Procedure Code (V of 1908), O. XVII, R. 3---eviction of tenant---Wilful default---Non-issuance of show-cause notice to tenant---Non-holding of inquiry--- Scope--- Tenant/petitioner contended that eviction order was illegally passed against him in the wake of his failure to submit written reply---Landlord contended that right of defence of tenant was correctly struck off by Rent Controller---Validity---Record revealed that on account of default in submission of written reply on behalf of tenant, Rent Controller had not only struck off defence of tenant but also ordered eviction of the tenant---Section 17 of Cantonments Rent Restriction Act, 1963 prescribed a special procedure to be adopted by the Rent Controller before passing any final order in regard to eviction of a tenant or otherwise---In the present case, no show-cause notice either after filing the application of eviction or thereafter, when the defence was struck off was served upon the tenant---Ordinary summons could not be a substitute for show-cause notice---Whole proceedings would be void ab initio without show-cause notice--Under S. 27 of Cantonments Rent Restriction Act 1963, power of the Rent Controller was curtailed to pass order of eviction under S. 17 of the Act, except after holding an inquiry and the inquiry did not mean to consider the allegation put forth by a party in his pleadings but the court would give an opportunity to both the parties to substantiate the facts alleged in their respective pleadings through proper evidence---No doubt, Rent Controller had been conferred with powers, in term of subsection 2(b) of S.27 to compel the discovery and production of any document and other material evidence , while subsection (2) of S.27 provided that for the purposes of holding an inquiry under the Act, Rent Controller and appellate court would have same powers as were vested in a court under Code of Civil Procedure, 1908 for summoning and forcing of any person and examining him on oath; compelling the discovery and production of any document and other material evidence; and issuing a commission for the examination of witnesses---Rent Controller, in case of violation of direction for non-submission of written reply, could adopt punitive procedure provided under O.XVII, R.3, C.P.C. while exercising its power conferred upon it in terms of S. 27(2) of the Act, but while exercising such powers, Rent Controller would adopt the whole procedure and would give prior notice to the delinquent party under O.XVII, R.3, C.P.C.---In the present case, Rent Controller had not issued required notice to defendants prior to striking off his defence, which itself was gross illegality---Power to pass eviction order could not be exercised without conducting proper inquiry as the provisions of subsection (1) of S. 27 had placed specific embargo on exercise of simultaneous order of eviction after striking off the defence---Case was remanded.