MUHAMMAD SHAFIQUE Versus ZAHIDA BEGUM

This first appeal has assailed the order of the learned Additional Rent Controller, Rawalpindi Cantonment dated 13-3-1995 by which the learned Court closed the evidence of the present appellant and passed the order of ejectment against him.

2.. The brief facts involved in the present appeal are that the appellant was a tenant under respondent No.1 of second floor of shop No.M/44-E, Bank Road, Rawalpindi Cantt. under the lease deed (Exh.R/1). It, was agreed between the lessor (Mst. Zahida Begum) and the lesseee that it will be used for purely commercial purpose and the lessee will not interfere with the water supply of other tenants and the lease will be renewed after initial period of three years on the existing terms and conditions for further period of two years at the increase of 20% monthly rent. The property is stated to be owned by Mst. Zahida Begum respondent No.l and Kh. Abdur Rashid son of Mst. Zahida Begum respondent Not. The respondents claim to be the owners/landlord of the disputed property. The respondents filed an ejectment petition under section 17 of the Cantonments Rent Restriction Act, 1963 on 29-8-1994 on the basis of default in payment of rent from 1-7-1993 till the date of institution of the ejectment petition and requirement of the disputed premises for self-use and occupation and conversion of the ' commercial premises into the residential and subletting etc.

3. The ejectment petition was hotly contested by the present appellant who disputed the relationship of landlord and tenant and claimed himself to be the owner on the basis of an agreement to sell dated 6-7-1993 entered into between Mst.Zahida Be-gum respondent No. 1, and the appellant in consideration of Rs.5 lacs, out of which Rs.3 lacs as earnest money were stated to be paid to the respondent No.l. The agreement to sell is mark `A' Exh.R/2. On 26-10-1994 the learned Additional Rent Controller framed an issue regarding relationship of the landlord and tenant placing the onus on the respondents/petitioners. The respondents /petitioners examined Haji Muhammad Abdul Rashid respondent/petitioner No.2 appeared as his own witness as his own witness as P.W.3. They also produced in evidence Exh.P/1 to Exh.P/3. On,13-12-1994 respondents' counsel made a statement that his evidence was closed and he reserved his right to produce evidence, if any, in rebuttal and the Court had recorded that evidence of the petitioners had been concluded and the counsel for appellant/respondent states that if the case is adjourned to 15-1-1995 he will produce complete evidence. The Court also recorded that the appellant/respondent if wanted to summon any witness he could deposit the summons, process fee and the expenses for witness within three days and the Court Process Server should effect the service of the summons and in case of refusal they should apprise the Court on 13-12-1994 so that the Court can use coercive measures and the case was adjourned for 15-1-1995. The counsel for the appellant submits that this very order shows that after the conclusion of the evidence of the respondents/petitioners the Court acted in such a hasty manner which was not equitable when he gave so many adjournments to the respondents/petitioners to produce their evidence. On 15-1-1995 it was stated in the interim order that partial evidence of the appellant/respondent was present, the Court on its own accord adjourned the case for evidence of the respondents for 8-2-1995. On 8-2-1995 the evidence of Mumtaz Khan, Stamp Vendor (R.W.1) and Ibrar Ahmad, Advocate (R.W.2) was recorded and cross examined. After recording the statements of the two witnesses the Court wrote down that the counsel for the respondent wants to produce rest of the evidence and last opportunity was given to the appellant/respondent for production of his evidence on 20-2-1995. On 20-2-1995 the application on behalf of the appellant/respondent was filed for stay of proceedings in the Court of the learned Additional Rent Controller as a suit for specific performance of the agreement to sell regarding the suit property was filed in the Civil Court. The learned Additional Rent Controller summarily dismissed the application and adjourned the case for the rest of the evidence on the responsibility of the appellant/respondent with the condition that if the appellant/respondent did not produce the evidence his evidence would be closed and adjourned the, case for 12-3-1995. On 12-3-1995 the appellant/respondent gave an application for adjournment. Mst. Zahida Begum respondent No.l, summoned witness on behalf of the respondent, was present in person. The learned Additional Rent Controller wrote down as under:--

On 13-3-1995, the learned Additional Rent Controller wrote down:--

In the later portion of this order subsequently on the same date Court wrote down:--

This order has been assailed in the present appeal.

4. Learned counsel for the-appellants has argued that the learned Court below erred in law by not recording evidence of respondent No.l (Zahida) who was bound down on 12-3-1995 for evidence on 13-3-1995. His submissions are that the Court on 12-3-1995 on its own accord adjourned the case and bound down the respondent No.l to appear in Court on 13-3-1995 for evidence. As Mst. Zahida Begum respondent No. 1 also signed on the Order Sheet dated 12-3-1995 to remain present-on 13-3-1995 but she did not appear on 13-3-1995 in the Court and the Court committed material irregularity by not recording her presence or absence in the impugned order dated 13-3-1995. His next submission is that in fact he had given an application on 14-12-1994 for summoning the rest of the witnesses and under section 27(2) of the Cantonments Rent Restriction Act, 1963 the Court could summon any person and examine him on oath and the application for summoning the witness was already lying with the Court on 14-12-1994; The appellant/respondent although was present but the Court refused to record his evidence before closing the same on 13-3-1995. He has relied on Javaid Akhtar Nawaz v. Mehr Kabir 1990 CLC 1122, Rehmat Ali v. Fazal Hussain etc. 1990 CLC 761, Qutabuddin v: Gulzar etc. PLD 1991 SC 1109, Jindwada etc. v. Abdul Hamid an another PLD 1990 SC 1192, Province of Punjab v. Mst. Zenat Shaheed etc. PLD 1990 Lah. 180, Mst. Arifa Amjad etcrrv. Abbas Tayyab Dar etc. 1990 CLC 1743, Allah Ditta v. Hafiz Zahoor Ahmad 1993 CLC 1359, Habib Insurance. Company Limited v. National Shipping Corporation 1990 ALD 766 (Karachi), Mst. Zaitoon Begum v. Muhammad Ilyas etc. PLD 1971 Lah. 143 and Ghulam Rasool etc. v. Mahboob Ali 'etc. 1991 CLC 1164 (Lahore) in support of his contention that Order XVII, Rule 3, C.P.C. is applicable to a proceeding of Rent Controller especially when a Court adjourns the case on the request of the parties and the parties fail to perform their act. According to him the present case was adjourned on 12-3-1995 not on the request of the Appellant but the same was adjourned by the Court itself bounding down Mst. Zahida Begum respondent No.l who failed to appear on 13-3-1995 and the Court could not penalize the appellant by closing his evidence. Such an act is 'unwarranted by law.

5. Learned -counsel for the appellant concluded his arguments by stating that the impugned judgment passed by the learned Additional Rent Controller suffers from infirmity of law, so far as it relies on an oral and vague statement made by Mst. Zahida Begum respondent No.1, a summoned witness, who was never put in the witness-box and was never examined or cross-examined. According to him the landlord has always to prove his clear title before the learned Rent Controller in view of Rehmat Ullah v. Ali Muhammad etc. 1983 SCMR 1064.

6. Learned counsel for the respondent hotly contested the present appeal on the points that four .clear opportunities were given to the appellant/netitroner to produce evidence but he failed to produce his evidence evidence was rightly closed by the learned Additional Rent Controller in view of Malik Abdul Qayyum v. Additional District Judge, Attock etc. 1989 SCMR 1768, Abdul Qayyum v. Mst. Husn Ara 1986 SCMR 957, Bashir Ahmad v. Rent Controller, Gujranwala 1983 CLC 229, Abdul Hussain v. Sardar Muhammad Usman Jogezai 1988 CLC 2429 (Quetta) and Muhammad Aqil v. Abdul Ghani 1988 MLD 1346. The Court cannot be helpless, spectators to wait indefinitely by choice of the party either for production of evidence or recording of statements and that in every ejectment proceedings the Additional Rent Controller will not necessarily stay the proceedings of ejectment, the moment there is a civil suit. According to him the agreement to sell was not produced before the learned Additional Rent Controller nor its execution was proved by the appellant-respondent although he was in possession of that document. Articles 70 and 103 of the Oanun-e-Shahadat Order, 1984 are clear where documentary evidence exists, the oral statement would be of no value.

Reliance was placed on M$t. Niaz Begum etc. v. Waris Khan etc. 1995 MLD 690 (Lahore) and Begum Mumtaz Riaz v. Masood Siddiqui etc. PLD 1992 Karachi 26. He further stated that Civil Procedure Code is not applicable before a Rent Controller. He has placed reliance on Khudim Mohyuddin v. Ch.Rehmat Ali Nagra PLD 1965 SC 459, Ayub Khan v. Fazal Haq etc. PLD 1976 SC 422, Muhammad Ramzan v. Muhammad Tufail 1980 CLC 753, Ghulam Nabi v. Mushtaq Ahmad PLD 1980 SC 206 and Mrs. Anita Subhan Khan v. Jamaluddin Ansari 1990 CLC 1224. It is abundantly clear that a Rent Controller is free to allow any procedure which he considers expedient in the interest of justice so far as this procedure is not arbitrary and is not inconsistent with the rules of natural justice or contravenes the provisions of law. According to him the evidence produced by the appellant is weak and not confidence-inspiring. The Rent Controller is not bound in every case to refer the matter and ask the landlord to go to the Civil Court for clearance of his/her title.

7. I have heard learned counsel for the parties and have perused the record as. well as evidence produced by both the patties. As far as the title, of the respondent/petitioner was concerned it was disputed by the appellant/ respondent from the very beginning by asserting that he himself is the owner of the property in question vide an agreement to sell dated 6-7-1993 which was produced on record arid bears clear signatures of Mst.Zahida respondent No.l and from the very beginning of the evidence when the appellant was producing his evidence the learned counsel for the appellant/respondent submitted that he wanted to examine Mst.Zahida Begum as a witness in this case. He also got Mst. Wahida Begum respondent summoned in the Court. He made averments in the written statement that he entered into a transaction of sale with Mst. Zahida Begum in consideration of Rs.5 lacs vide an agreement to sell dated 6-7-1993 and he had paid Rs.3 lacs as earnest money to the said 'respondent/petitioner and for this reason he summoned the witness to confront mark `A' dated 6-7-1993, according to the provisions of Oanun-e Shahadat Order, 1984. Although the Civil Procedure Code in its complete sense does not apply to the rent proceedings but all the judgments produced by the learned counsel for the respondent have laid the principle that when the objection is taken about the jurisdiction of the Rent Controller that objection must be treated preliminary objection and must be resolved before taking any further action. In the instant case the objection was taken as to the relationship of landlord and tenant and the tenant claimed himself to be the owner of the disputed premises, the learned Additional Rent Controller rightly framed the preliminary issue to decide the question of relationship of landlord and tenant between the parties which in fact was an issue whether the learned Additional Rent Controller had jurisdiction to hear the instant ejectment petition or not, and for this reason the appellant/respondent was to be given ample opportunity to produce evidence. From the perusal of all interim orders this fact is not borne out that a sufficient opportunity in that concern was given to the appellant/respondent. The order dated 12-3-1995 is manifestly clear that though in the beginning appellant's counsel requested for adjournment but the respondent No.l was summoned by the Court and she was bound down to appear as witness on 13-3-1995 for evidence, but the order dated 13-3-1995 does not disclose anywhere whether respondent No.l who was.bound down by the Court was present or absent. It was the duty of the Court to see whether the witness bound down on 12-3-1995 by the Court itself, was present and the appellant/respondent failed to cross-examine her. It is also clear that the appellant/respondent was present and the counsel for the respondent desired to produce him in evidence. Even through an application the Court was informed that a suit for specific performance of the agreement to sell was pending adjudication before the Civil Court but this application was summarily dismissed by the learned Additional Rent Controller.

8. Looking from another angle the impugned order/judgment does not give impression of a judicial order and cannot be said to have been passed by the learned Additional Rent Controller after application of his independent mind to the previous order passed by him. Such an order cannot be considered as an order passed by the learned Additional Rent Controller in its proper exercise of jurisdiction. The learned Court below has not taken into consideration its own previous order. In order to attract the penal provisions the Court has to see and keep in consideration that whether in the preceding order the parties to the suit have requested for adjournment and the adjournment was sought on their request and they failed to produce evidence if this is not the case the penal provisions of law shall not be attracted towards the present appellant as although the learned Rent Controller is at liberty to follow any procedure but cannot arbitrarily use the procedure which is not consistent with the rules of positive provisions of law and also equity and natural justice. Even otherwise, in the absence of any provisions of law the Rent Controller in the matter of procedure can follow equitable principle contained in the Code of Civil Procedure.

9. From what has been stated above, I do not find that the order of closure of evidence passed by the learned Additional Rent Controller is a proper judicial order exercising due diligence and application of mind, therefore, the same is set' aside, the appeal is accepted and the case is remanded back to the learned Additional Rent Controller for decision afresh after affording proper opportunity of producing evidence to the parties. The learned Court below would strictly act in view of Rehmatullah's case 1983 SCMR 1064, regarding the civil matters.

10. The appellant may take a recourse to the learned executing Court by making an application for restoration of possession under section 144, C.P.C.

A.A./R-2170/L - Appeal accepted.