SHAB MALIKHAN Versus THE STATE

This appeal is directed against order, dated 16‑7‑1991 passed .by Additional Rent Controller, Lahore Cantt. through which the ejectment petition filed by respondent seeking eviction of the appellant from property in dispute on the ground of default in the payment of rent and personal need, has been accepted.

2. The respondent filed ejectment petition against the petitioner seeking his eviction from the premises in dispute on the ground of default in the payment of rent since June 1990 upto the March, 1991. The ejectment petition was instituted on 16‑3‑1991. The appellant contested the same. The appellant filed written‑statement in which a specific plea was raised that there was an agreement of sale of the property in dispute between the parties and that the respondent asked the appellant not to deposit the monthly rent as it was he who could not abide by the terms of the agreement being out of the country.

3. The learned Rent Controller framed issues and recorded the evidence. The evidence of two of the witnesses of the respondent was recorded on 3‑7 1991 on which date learned counsel for respondent made a request that the other witness of the respondent was not present therefore, an adjournment may be given. The complete evidence of the appellant was also not available therefore the case was adjourned to 8‑7‑1991 for recording evidence of both the parties with the observation that no further adjournment would be given.

On 8‑7.1991 evidence of Abdul Waheed Mian as P.W.3 as witness of respondent was recorded and the request .of .the respondent to .grant an adjournment for examining attorney of‑the respondent who had gone abroad and the other witness who had fall an ill was declined. The appellant on the said ,date examined himself as R:W. I and the request of learned counsel for the appellant for an opportunity to produce further documentary evidence was also declined.

4. I have noticed that since a plea was raised in the written‑statement that the respondent had instructed the .appellant not to make payment of :monthly rent, it was necessary that respondent/landlord should have appeared as his own witness‑who could be subjected to cross‑examination on the material fact because it was argued that though under the agreement of sale it was specifically provided that .the appellant would continue paying the monthly rent .and the tenancy was retained in spite of agreement of sale, it could be proved that the respondent himself was responsible for the non‑payment of rent and the default in payment of rent if any was not wilful. Apart from that the question of bona ride need in good faith of the property by the respondent could also not be decided properly unless he appeared and examined himself is his own witness to establish his bona fides and allowed himself to be Subjected to cross‑examination. Likewise the order, dated R‑7‑1991 for declining, The prayer of the appellant to lead further evidence as also to produce documentary evidence also suffers from illegality as the same is arbitrary. The discretion in case of both the parties in closing their evidence hay been exercised arbitrarily whereas the same was required to be exercised judicially after due consideration of the attending circumstances.

5. In the present case the appearance of respondent in the facts and circumstances of this case as his own witness to decide both the issues was necessary. The impugned order, dated lti‑7‑1'X)1 is not sustainable. The appeal is accepted. The order, dated 16‑7‑1091 is set aside and the case remanded to the learned Addl. Rent Controller, Lahore Cants for fresh disposal after affording further opportunity to the parties to lead evidence in the light of the observations made above. The parties are left to hear their own costs.

The parties arc directed to appear before the learned Addl. Rent Controller, Lahore Cantt, on 11‑4‑1992 to whom the record shall be transmitted. He shall decide the case within four months from the said date.

A.A./G‑35/L Case remanded.