Wajid Akbar VS Mrs. Sarwat Raja etc.

ORDER SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

W.P.No.4095 of 2022 Wajid Akbar Versus Mrs. Sarwat Raja and others S. No. of order Date of order/ Order with signature of Judge and that of parties or counsel / proceedings Proceedings where necessary. 27.03.2023 Mr. Muhammad Asif Khan, Advocate for the petitioner.

Mr. Nisar A. Mujahid, Advocate for respondents No.1 to 4.

Through the instant writ petition the petitioner, Wajid Akbar, assails the judgment dated 23.09.2022 passed by the Court of the learned Additional District Judge, Islamabad whereby his appeal against the order dated 19.07.2022 passed by the Court of the learned Rent Controller, Islamabad, was dismissed. Vide the said order dated 19.07.2022, the learned Rent Controller dismissed the petitioner’s application for setting aside the ex-parte proceedings dated 29.06.2022.

2.The record shows that on 30.05.2022, respondents No.1 to 4 had filed an eviction petition before the Court of the learned Rent Controller, Islamabad seeking the petitioner’s eviction from the Upper Portion of House No.3, Street No.44, Sector F-7/1, Islamabad (“the rented premises”). The learned Rent Controller issued summons to the petitioner on 30.05.2022 to be served on him at the address of the rented premises. On the next date of hearing i.e. 14.06.2022, no one tendered appearance for the petitioner before the Court of the learned Rent Controller which caused him to issue summons to the petitioner through all modes including publication in “Daily Khabrain” and affixation on the rented premises for 29.06.2022. Since no one for the petitioner tendered appearance on 29.06.2022, the petitioner was

proceeded against ex-parte. On the date of hearing after 29.06.2022 i.e. 19.07.2022, the petitioner filed an application for recall of the order dated 29.06.2022. The said application was dismissed on 19.07.2022 which has been assailed by the petitioner in an appeal before the Court of the learned Additional District Judge, Islamabad. Vide order dated 23.09.2022, the said appeal was also dismissed. The concurrent orders dated 23.09.2023, 19.07.2022 and 29.06.2022 have been assailed by the petitioner in the instant writ petition.

3.Learned counsel for the petitioner submitted that the petitioner ought to have been granted one opportunity by the learned Rent Controller to appear and submit his defence to the eviction petition; that service of summons on the petitioner’s brother could not be equated with service of summons on the petitioner; and that the petitioner’s entry into the rented premises was not as a tenant but as an owner. Learned counsel for the petitioner prayed for the writ petition to be allowed in terms of the relief sought therein.

4.Learned counsel for respondents No.1 to 4 submitted that the petitioner had fabricated documents in order to show that he is the owner of the rented premises; that respondents No.1 to 4 had not executed any agreement to sell the rented premises to the petitioner. He, however, submitted that respondents No.1 to 4 would have no objection if the concurrent orders dated 23.09.2023, 19.07.2022 and 29.06.2022 are set-aside and the matter is remanded to the learned Rent Controller with the direction to decide the eviction petition at the earliest.

5.I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance.

6.The petitioner has not come up with a plausible ground for not appearing before the learned Rent Controller in response to the summons that according to the report of the process server had been served on the petitioner’s brother. It has become common place for tenants to avoid the process of the Court in order to protract their occupation of the rented premises. The affixation of the summons on the rented premises is sufficient to serve a tenant. Therefore there was no plausible reason for the petitioner not to have tendered appearance before the learned Rent Controller on 29.06.2022 which was the date after summons had been issued to the petitioner through publication in the “Daily Khabrain” as well as affixation of the summons on the rented premises. Since learned counsel for respondents No.1 to 4 has conceded to the instant writ petition to be allowed as he wants the Court of the learned Rent Controller to give a decision on the merits of the case, the instant writ petition is allowed subject to the payment of costs of Rs.50,000/- to respondents No.1 to 4 on the next date of hearing before the learned Rent Controller; upon the payment of such costs, the impugned orders dated 29.06.2022 and 19.07.2022 passed by the learned Rent Controller and 23.09.2022 passed by the learned Appellate Court would be considered as having been set-aside, and in such eventuality, the learned Rent Controller shall decide the eviction petition at the earliest, bearing in mind the guidelines laid down by this Court in the judgment reported as Muhammad Akbar Chohan Vs. The

Rent Controller (2017 MLD 53). The office may return the original documents filed by the petitioner after retaining its attested copies.

(MIANGUL HASSAN AURANGZEB)

JUDGE

Sultan*