ZAHIDA BEGUM Versus MUHAMMAD SHAFIQ

SAIDUZZAMAN SIDDIQUI, J.--The above appeal with the leave of this Court is filed by the appellants against the judgment of a learned judge in Chambers of Lahore High Court, Rawalpindi Bench, dated 3-7-1995.

2. The appellants instituted an ejectment case against the respondent on 29-8-1994 in respect of premises No.M-44-E, Bank Road, Rawalpindi Cantt., before Additional Rent Controller, Rawalpindi Cantt, on the ground of nonpayment of rent from 1-7-1993, personal and bona tide requirement of premises for appellant No.2, unauthorised conversion of premises from commercial use to residential use and subletting of a portion of the demised premises without permission of appellants. The respondent resisted the ejectment case and denied the existence of relationship of landlord and tenant between the parties on, the ground that on 6-7-1993, appellant No. l entered into an agreement of sale with the respondent in respect of the demised premises and received a sum of Rs.3 lacs out of the total agreed sale consideration of Rs.5 lacs. The Rent Controller, accordingly, framed a preliminary issue in the case and after recording evidence of the parties held that the relationship of landlord and tenant existed between the parties. Since non-payment of rent was admitted by the respondent, straightaway ejectment order was passed directing the respondent to hand over vacant and peaceful possession of the premises to the appellants. The respondent challenged the ejectment order of Rent Controller before the learned Judge in Chambers in F.A.O.No.26/95 which was accepted by the impugned judgment and the case was remanded to the Rent Controller for decision of. the case after affording opportunity to respondent to lead.evidence in the case. Leave was granted in the appeal to consider inter alia the following contention:

"4. After hearing the learned counsel for the petitioners, inter alia, the contention that by executing agreement of sale, which has not been proved, and which has been withheld in evidence in spite of several adjournments granted to the respondent the finding given by the Rent Controller regarding the existence of relationship of landlord and tenants, and the admission of the respondent that he did not pay the rent since the execution of such alleged- agreement, the order of ejectment passed by Rent Controller was. not open to interference by the learned High Court. Leave is granted to consider the above contention. As the petitioners have already been put in possession of the premises, therefore, status quo issued shall be maintained."

3. In support of the appeal, the learned counsel for the appellants contended that the learned judge in Chambers while remanding the case to Controller failed to take into consideration that ample opportunity was allowed to the respondent to produce the evidence in support of his contention but he failed to do so and as such the order of the Controller closing the side of respondent and proceeding to decide the case on merit was a proper order in the circumstances of the case., It is also contended by the learned counsel for the appellants that the learned Judge in Chambers failed to take into consideration that after institution of the rent case, respondent had instituted a civil suit against appellant No. 1 for specific performance of the alleged agreement of sale in his favour which was pending and as such the plea of respondent that he had become owner of the demised premises could only be decided in the said proceedings. It is lastly contended by the learned counsel for the, appellants that the appellants have not only obtained possession of the demised premises in execution of the decree of Rent Controller but the civil suit instituted by the respondent was dismissed by the Civil Judge Ist Class, Rawalpindi, on 5-11-1995 for want of evidence and appeal filed by the respondent against the said order before the High Court of Punjab, Rawalpindi, Bench, was ordered by the Court to be returned to respondent as the requisite court-fee of Rs.15,000 was not paid on the memo. of appeal and no one appeared on behalf of respondent in the Court when the case was called on 21-5-1996 in the Court. The learned counsel for the respondent the other hand supported the judgment of High Court. We have heard the learned counsel for the parties at length.

4. It is an admitted position in the case that respondent was inducted in the denvsed premises by appellant No. l under a written agreement of tenancy dated 1-10-1984. The respondent also does not dispute that he stopped payment of rent of the demised premises to appellant No. l since 1-7-1993 as he allegedly purchased the suit premises from appellant No. l under an alleged agreement of sale dated 6-7-1993.

4-A. The appellants closed their evidence before the Controller on the preliminary issue in the ejectment case subject to the right of rebuttal on 13-12-1994. Thereafter the case was adjourned to 15-1-1995 for evidence of respondent. On this date the entire evidence of respondent was not present, therefore; the case was adjourned to 8-2-1995 for production of entire evidence of respondent at- his own risk. On 8-2-1995 respondent examined only two witnesses and requested for time to produce the remaining evidence in the case. The request for time to produce remaining evidence was allowed and case was adjourned to 20-2-1995 with these observations:

(Sd.)

8-2-1995

5 It is quite clear from the above order that the Controller allowed time to respondent to produce his remaining evidence up to 20-2-1995 as a last chance in the case. However, on 20-2-1995 instead of producing his remaining evidence, the respondent moved application before the Controller for stay of proceedings of the case on ground that he had filed a civil suit against appellant No. 1. The Controller rejected the application for stay of proceedings and as the respondent undertook to produce the remaining evidence on the next date of hearing on the condition that in case he failed to produce the evidence his evidence may be treated as closed, the Controller allowed adjournment up to 12-3-1995 in the interest of justice with these observations:

On I2-3-1995, the respondent instead of producing the remaining witnesses, filed application' for adjournment on the ground that his witnesses were not present. Appellant No.1 who was perhaps summoned as Court-witness, was present in Court in spite of her illness and she denied execution of agreement of sale. Although in terms of the order dated 20-2-1995 the evidence of the respondent could be closed, the Controller as an extra indulgence shown to respondent adjourned the hearing of the case to the following day for production of his witnesses with these observations:

On 13-3-1995, the respondent and his counsel were absent.', One Muhdrnmad Waheed, nephew of respondent, appeared before the Controler on that date and stated that his witnesses could not come today. The Controller, therefore.-passed the following order:--= ,, . '-. '~. . w,._

6. From the above narration of facts, it is abundantly clear that the respondent was allowed last chance to produce his remaining witnesses in the case by 20-2-1995 but he failed to produce the same. However, the Controller in the interest of justice and on the undertaking of respondent that if he is allowed a longer adjournment, he will produce all his evidence on the next date and in case he failed to produce the witnesses his evidence may be treated as closed, allowed another opportunity to respondent to produce his witness on 12-3-1995. The respondent, however, did not produce his remaining evidence on 12-3-1995 and again applied for adjournment which was allowed up to the following day but he again defaulted in complying with his undertaking given to the Court, on 20-2-1995 resulting in the closing of his side and decision of the case on mrits on the basis of the evidence on record. In these circumstances, neither it can be argued that the Controller did not allow sufficient opportunity to respondent to produce his evidence in the case nor it can be said that he acted against the principle of natural justice. No exception, therefore, could be taken to the order of Controller closing the evidence of the respondent in the case and deciding the case on merits. The learned Judge it Chambers, therefore, had no justification to interfere with the order of Controller in the circumstances of the case.

7. Apart from the fact that the order of Coritroller closing the side of respondent in the ejectment case did not suffer from any infirmity or illegality so as to call for interference by the learned Judge in Chambers, the fact that the appellants were handed over possession of the premises through execution of the decree of Controller and a civil suit filed by the respondent seeking specific performance of alleged agreement of sale was dismissed by the trial Court acid the appeal against that order before the High Court was returned to the respondent on account of non-payment of court-fee and non-prosecution, we do not feel the present case fit for remand to the Controller lot a fresh decision. We, accordingly, set aside the impugned order of High Court and allow the appeal with costs.

A.A./Z-218/5 Appeal accepted.