2021 C L C 796
.8---Fair rent---Ex-parte order, setting aside of---Scope---Petitioner assailed concurrent findings of courts below whereby he was proceeded against ex-parte and the application for fixation of fair rent was allowed---Validity---Courts below had fixed fair rent without considering the pleadings as narrated in the application for fixation of fair rent as well as affidavit in evidence---Normally no one could be knocked out on technicalities rather administration of justice always insisted decision of the lis on merits---No exception to legal obligation of the parties to present their pleadings well within time could be taken, however, when penal action was subject to the word 'may' then the courts normally were to make effort avoiding penal action unless it appeared that the discretion was being exploited---Penal action by the Rent Controller was a harsh one and such aspect should have considered by the Appellate Court, which it had failed---Case was remanded to the Rent Controller with direction to allow the petitioner to file his objections as well as permit the parties to lead their evidence and thereafter decided the issue in accordance with law---Petition was disposed of accordingly.
2021 C L C 796
[Sindh]
Before Salahuddin Panhwar, J
MUHAMMAD USMAN----Petitioner
Versus
STATE LIFE INSURANCE CORPORATION OF PAKISTAN CONSTITUTED AND ESTABLISHED and 2 others ----Respondents
Constitution Petition No.S-1096 and C.M.A. No.4805 of 2012, decided on 7th September, 2020.
(a) Sindh Rented Premises Ordinance (XVII of 1979)---
----S.8---Fair rent---Ex-parte order, setting aside of---Scope---Petitioner assailed concurrent findings of courts below whereby he was proceeded against ex-parte and the application for fixation of fair rent was allowed---Validity---Courts below had fixed fair rent without considering the pleadings as narrated in the application for fixation of fair rent as well as affidavit in evidence---Normally no one could be knocked out on technicalities rather administration of justice always insisted decision of the lis on merits---No exception to legal obligation of the parties to present their pleadings well within time could be taken, however, when penal action was subject to the word 'may' then the courts normally were to make effort avoiding penal action unless it appeared that the discretion was being exploited---Penal action by the Rent Controller was a harsh one and such aspect should have considered by the Appellate Court, which it had failed---Case was remanded to the Rent Controller with direction to allow the petitioner to file his objections as well as permit the parties to lead their evidence and thereafter decided the issue in accordance with law---Petition was disposed of accordingly.
(b) Administration of justice---
----No one can be knocked out on technicalities rather administration of justice always insists decision of the lis on merits.
Abdul Qadir Khan for Petitioner.
Kamran Memon and Ghulam Akbar for Respondent No.1.
ORDER
SALAHUDDIN PANHWAR, J.----Through instant petition concurrent findings passed through impugned order /judgment in rent jurisdiction have been challenged, whereby while allowing the rent case fair rent was fixed by the Rent Controller, against which appeal was preferred by the petitioner, which has been dismissed.
2. Heard learned counsel for the respective parties.
3. Admittedly, petitioner was declared ex parte and learned Rent Controller on the plea that petitioner is ex parte allowed the rent application and fixed the fair rent without considering the pleadings as narrated in the application for fixation of fair rent as well affidavit in evidence. In similar fashion appellate court also maintained the order of the Rent Controller and failed to adjudicate the issue of fair rent. Admittedly, in fair rent cases courts are bound to examine the pleas taken by the respective parties and adjudicate the issue, however, surprisingly, such exercise was not undertaken by both the courts below, which has rendered their order/judgment to be not in accordance with law, since while doing so the courts below have travelled beyond their jurisdiction.
4. It is pertinent to mention that it is settled principle of law that normally no one can be knocked out on technicalities rather administration of justice always insists decision of the lis on merits. I would take no exception to legal obligation of the parties to present its pleading well within time however when penal action is subject to the word 'may' then the Court (s) normally are to make effort avoiding penal action unless it appears that this is being exploited. Keeping the facts of matter, I am of the view that penal action (meaning deprival of guaranteed right of fair trial) by the Rent Controller was harsh one and such aspect should have been considered by the appellate Court, which has failed to do so.
5. In view of the above, both order and judgment passed by the fora below are hereby set aside and the case is remanded back to the Rent Controller with directions to allow the present petitioner to file his objections as well parties shall be permitted to lead their evidence and thereafter the issue shall be adjudicated in accordance with law.
Instant petition stands disposed of in the above terms along with pending applications
SA/M-11/Sindh Case remanded.
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