SAEED PERVAIZ vs Syed MASOOD HASSAN

' CH. EJAZ YOUSAF, J.--- This petition for leave to appeal is directed against judgment, dated 13-9- 2007 passed by a learned Single Bench of the Lahore High Court, Lahore, wheteby order, dated 6-1- 2007, passed by Additional District Judge, Lahore, in appeal filed by the petitioner, was upheld.

2. Facts of the case lie in a small compass. The respondent/ landlord filed an eviction application against the petitioner, who is a tenant in the disputed property, on the ground of personal bona fide need and wilful default. The eviction application was contested. On conclusion of respondent's evidence, the petitioner was directed to adduce evidence but he failed to do the needful despite opportunities given. Resultantly, his right to lead evidence was struck off. Review application, seeking withdrawal of the said order, was also dismissed. Thereafter, Additional District Judge, as well as, the Lahore High Court were approached, but in vain, hence this petition.

3. It has been, inter alia, contended by the learned counsel for the petitioner that though action to strike off his defence was taken under Order XVII, rule 3, C.P.C. Yet, the impugned order was patently in violation of the said provision of law itself because parameters of the provision in question were not fulfilled and final opportunity, as required, was not afforded to him to produce evidence he has also tried to canvass that since C.P.C. Was not applicable to the proceedings before the Rent Controller, therefore, his defence could not have been struck off. It is further his grievance that though, on the said date, the petitioner himself could not appear yet, since affidavits of the witnesses were filed on his behalf, therefore, it was incumbent on the Rent Controller to take the same into account while deciding the eviction application.

4. Mr. A.H. Bhatti, learned Advocate Supreme Court for the respondent, on the other hand, while controverting the contentions raised by the learned counsel for the petitioner has stated that a number of opportunities, to produce evidence, were granted to the petitioner but were of no use, resultantly a final opportunity, vide order, dated 16-3-2006 for 25-3-2006, was afforded to him, which too, was not availed. Neither the petitioner nor his counsel did appear on the said date and merely affidavits on his behalf were filed by a stranger and it all was part of the strategy to delay the proceedings, hence Rcnt Controller had no option but to proceedisfurther with the case by passing the impugned order.

5. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the available record with their assistance. The first contention that since parameters of order XVII, rule 3 of the C.P.C. Were not fulfilled as no opportunity was afforded to the petitioner to produce his evidence, on its face appears to be misconceived because as per available record a number of opportunities were provided to the petitioner to produce evidence but he failed. The case was therefore, finally fixed for his evidence on 25-3-2006, on which date, again he did not bother to produce evidence or to appear himself in Court. Instead affidavits of some of the witnesses were filed and that too, by some other person. Resultantly, defence of the petitioner was struck off. The contention therefore, having been belied by the record, is devoid of force.

6. Adverting to the next contention of the learned counsel for the petitioner that since C.P.C. Was not applicable to the proceedings before the Rent Controller, therefore, petitioner's defence could not have been struck off, it may be pointed out here that though the provisions of C.P.C. In stricto senso are not applicable yet, equitable principles thereof can be applied to the rent proceedings as well, for a just cause because the Rent Controller is empowers to adopt procedure of his choice, which of course, has to be legal. Law is well-settled in this regard. The .Earliest decision on the point was in the case of Khadim Mohyuddin v. Rehmat Ali PLD 1965 SC 459 wherein it was observed that though Controller was given powers of summoning and enforcing the attendance of witnesses and compelling the production of evidence and pass orders after holding enquiry yet, he was not bound, in every case, to follow the procedure as laid down in the Code of Civil Procedure as the question of nature in inquiry is left to him. In the case of Ayub Khan and another v. Fazal Haq and others PLD 1976 SC 422, service on one of the parties was affected by affixation which was challenged as illegal on the ground that as the Rent Controller was not a Court, he could not have followed the procedure prescribed by the C.P.C. The contention was repelled and it was held that though the Rent Controller, in his discretion was entitled to follow the equitable principles of the C.P.C. But he was also free not to follow technical provision of the Code. In the case of Muhammad Saleh v. Muhammad Shafi 1982 SCMR 33 which is somewhat identical to the one in hand, petitioner's defence, who was tenant in the premises, was struck off by the Rent Controller as a result of failure to deposit the arrears of rent. It was argued that since provisions of C.P.C. Were not applicable under the Rent Restriction Ordinance, therefore, the Rent Controller could not have done so. The contention was found without merit on the ground that although the provisions of C.P.C.

Were not applicable in terms to the proceedings under the Rent Restriction Ordinance yet, the Controller was in his discretion competent to apply them if he had considered it necessary. In the case of Abdul Majid v. Syed Azhar Ali Shah and others PLD 1985 SC 191, the contention that since power of attorney was not filed by the counsel in accordance with the provisions of Order III, rule 4 of the C.P.C., therefore, application submitted along with the same was not maintainable too, was found to be without substance on the ground that though Civil Procedure Code as well as the Evidence Act both were not applicable yet, proceedings before ,the Rent Controller were not to be frustrated by mere formalism as in such cases the only requirement was to ensure that no party is prejudiced by the procedure adopted by him. In the case of Shaikh Muhammad Ibrahim v. Syed Abdul Aziz Shah and others 1990 SCMR 542, the objection taken that since before withdrawing the earlier eviction application permission was not sought from the Court within the ambit of Order XXIII, rule 1, C.P.C., therefore, the subsequent application was not maintainable too, was repelled and it was laid down that though C.P.C. Was not applicable to the rent cases yet, equitable principles might be applied to advance justice. In a recent judgment delivered in the case of Muhammad Tariq Khan v. Khawaja Muhammad Javad Asami and others 2007 SCMR 118, while referring the cases of Ayub Khan (supra) and Messrs Bambino Ltd. v. Messrs Selmore International Ltd. And another PLD 1983 SC 155; Sh. Abdul Hameed's case PLD 1994 Kar. 379; Atta-ul-Haq's case 1992 MLD 1409; Abdul Hameed's case 1986 MLD 541; Sh. Miraj Din's case PLD 1965 Lah. 374; Sr.

Lakshmi Narayan's case PLD 1964 Dacca 177; Ahmad-ul-Haq's case PLD 1960 Dacca 452 and Mst.

Fatima Bibi's case 1991 SCMR 1031, it has once again been reiterated that provisions of C.P.C. Are not applicable to the rent proceedings in stricto senso, however, Rent Controller is entitled to follow principles thereof. The contention therefore has no force.

7. As regards the next contention of the learned counsel for the petitioner that since affidavits of some of the witnesses were filed in Court on the date when the impugned order was passed, therefore, the Rent Controller ought to have considered the same as evidence, it may be pointed out here that no doubt in the case of Barkat Ali v. Muhammad Ehsan and another 2000 SCMR 556, it was for quick decision of cases, laid down, inter alia, that while replying to the ejectment application the respondent shall be required to submit his own affidavit and affidavits of two their witnesses in support of his affidavit on the date fixed in the notice served upon him, yet it was also held therein that the parties shall be bound to produce their witnesses in Court for cross- examination and in case of failure they would face the consequences and in such a situation their evidence shall be excluded from consideration. That being so, this contention too, has no force.

8. Upshot of the above discussion is that this petition being misconceived is hereby dismissed and leave refused. However, in the interest of justice, the petitioner is afforded three months time to vacate the premises.