SIIAMSHAD KHAN and another vs ARIF ASHRAF KHAN and 2 others

' MIAN HAMID FAROOQ.Shamshad Khan and another, the petitioners, through the present petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, seek leave to appeal against the judgment, dated 30-4-2007 passed by the learned single Judge of the Peshawar High Court, whereby petitioners' Constitutional Petition (Writ Petition No,96 of 2007) was dismissed in limine.

2. Facts of the case in brief, are that respondent No,1, on 26-3-2003, instituted the petition under section 13 of the N.-W.F.P. Rent Restriction Ordinance, 1959 seeking eviction of the petitioners from Shop No,15 Akbar Market, New Rampura Gate, Peshawar (disputed shop) on the ground of subletting the shop by the petitioner No,1 to petitioner No,2. The petitioners resisted the ejectment petition through separate written replies, inter alia, controverting the averments qua subletting the shop, however, it was admitted that petitioner No,1 is tenant under respondent No, 1 . The learned Rent Controller, on 9-12-2003, framed the following issues:---

(1) Whether the petitioner has got a cause of action?

(2) Whether the respondent has unlawfully sublet the disputed shop to respondent No,2?

(3) Whether the petitioner is estopped to sue?

(4) Whether the legal notice, dated 20-7-2002 was served upon the respondent No,1?

(5) Relief?

3. In order to prove the issues, respondent No,1 submitted his own affidavit and affidavits of Munshi Wazirzada and Gul Hassan and all of them, later on, appeared as P.Ws.1 to 3 for cross-examination.

The petitioners in their evidence also filed affidavits of four persons namely Shamshad Khan (petitioner No,1), Muhammad Shafi (petitioner No,2), Misri Khan and Abdul Jalil and placed on record certain documents. The learned Rent Controller after finding that the petitioners failed to produce deponents of the affidavits for cross-examination despite providing various opportunities, proceeded to strike of petitioner's defence, vide order, dated 14-6-2004. Pursuant thereto, the learned Rent Controller, Peshawar after hearing the parties accepted the ejectment petition and directed the petitioners to hand over vacant possession of the disputed shop to respondent No,1 without 90 days, vide order, dated 13-5-2005. Petitioners' appeal against the said order was dismissed by the learned Additional District Judge, Peshawar on 6-11-2006. The petitioners assailed the said judgment through Constitutional Petition (Writ Petition No,96 of 2007) and the learned single Judge in Chamber of the Peshawar High Court dismissed the said petition in limine, vide impugned order, dated 30-4-2007, hence the present petition.

4. Learned counsel for the petitioners has contended that the petitioners were not provided sufficient opportunity of defence and they were not allowed to produce witnesses inasmuch as even petitioner No,1 was not permitted to get his own statement recorded. He has added that due to sickness the petitioner could not appear before the Court and produce his witnesses. Contrarily, the learned counsel for the respondent has vehemently stated that sufficient opportunity was provided to the petitioners, but they failed to produce their witnesses for cross-examination and there was no alternative left for the learned Rent Controller, except to close their defence. He has referred to the case of Fateh Sher v. Muhammad Zubair 2003 SCM R 797. He has next contended that order, dated 13-9-2004 striking off defence of the petitioners, was not challenged by them at appropriate stage, thus, the same has attained finality. He also referred to the case of Aftab Ahmad Khan and others v. Mst. Surayah Begum and others PLD 2004 Pesh.

168.

5. We have heard the learned counsel for the parties and perused the available record. The issues in this case were framed on 9-12-2003 and then the learned Rent Controller called upon the ejectment petitioner to produce his evidence on 7-1-2004, which was concluded on 14-6-2004.

Thus, the ejectment petitioner was provided a period of more than five months to complete his evidence. Thereafter, on 24-6-2004, the petitioners were called upon to adduce their witnesses, however, they could not produce witnesses on 5-7-2004 and 14-7-2004, as it was stated that the petitioner No,1 is seriously ill. It appears from the order-sheet No,26, dated 21-7-2004 that petitioners' evidence was partially recorded, however, later on i.e, on 28-7-2004 there was an application for postponement of the case on the ground of ailment of Shamshad Khan which request was allowed and the case was postponed to 6-9-2004. Examination of various interim orders amply manifests that the respondent did not raise objections to any of the adjournments and thus, all the adjournments were deemed to be granted with the mutual consent of the parties.

The respondent having not resisted adjournments of the case, even once, cannot be allowed at this stage to agitate that the petitioners were granted sufficient time to produce their evidence. We feel that the petitioners were not provided sufficient and adequate opportunity to produce their evidence and they have in fact been denied right of hearing. In the given circumstances of the case it will meet the ends of justice if the petitioners be provided opportunity of producing evidence.

7. As regards the plea of learned counsel for the respondent that interim order, dated 13-9-2004 striking off petitioners' right of defence had attained finality. Suffice it to say that it is settled that the interlocutory order merge in the final judgment and an aggrieved person may challenge interim orders while assailing the final judgment in appeal. We have also examined the memorandum of appeal and find that the petitioners, while filing the first appeal before the learned Additional District Judge, have also challenged the order, dated 13-9-2004. Thus, the contention of the learned counsel is without force.

8. In the above perspective, we have examined the impugned judgment and are of the firm view that the learned single Judge in Chamber has erred in law, while dismissing the petitioners' constitutional petition primarily on the ground that the question of fact could not be agitated in the constitutional petition. We are persuaded to set aside the impugned judgment and remand the case to the learned Rent Controller for deciding ejectment petition. Afresh, after providing opportunity to the petitioners to produce their witnesses, whose affidavits were already tendered, for cross-examination.

9. For the foregoing reasons, this petition is allowed, converted into appeal and stands decided in the following terms:-

(i) Impugned judgment, dated 30-4-2007 passed, by the Peshawar High Court, dated 6-11-2006 of the Additional District Judge and 13-5-2005 of the Rent Controller are set aside.

(ii) Respondent No, 1 's ejectment petition against the petitioners shall be deemed to be pending before the Rent Controller, who is directed to provide two opportunities to the petitioners to produce their witnesses, whose affidavits were already placed on record, for cross-examination subject to payment of costs of Rs,20,000.

(iii) In case the petitioners do not pay the costs or fail to produce their witnesses, needless to add that law will take its own course.

(iv) If the petitioners pay the costs, as noted above, and produce their witnesses, then the Rent Controller shall decide the matter within a period of three months from today.

(v) Both the parties shall appear .Before the Rent Controller on 3-1-2008.

(vi) No order as to costs.