KASHIF IFTIKHAR Versus MUHAMMAD IMRAN ASHFAQUE
AFTAB AHMED GORAR, J.--- This common judgment will dispose of all the three captioned constitution petitions altogether as otherwise same are born out of one and the same interlocutory order whereby the right of defense of the tenant was struck off. The gist of the constitution petitions is that petitioner being aggrieved and dis-satisfied with the order of learned Rent Controller challenged an interim order delivered on 05-04-2018 by the court of Learned XI-Rent Controller Karachi [Central]. The operative part of the impugned order reads as follows:-
"Record shows that evidence of applicant Muhammad Imran son of Ashfaq Hussain was recorded by the court of XII-Rent Controller, Karachi Central on 29-11-2017 and opponent side moved application that senior is out of city so cross-examination was reserved. Thereafter, cross-examination at length was conducted on 18-01-2018 but again advocate for opponent requested for reserving the cross-examination and same was allowed by the court of XII Rent Controller, Karachi Central. Thereafter, this case was received by way of transfer to this court and matter was already fixed on 30.01.2018 for cross-examination of application. On 30.01.2018 both the sides with consent requested for adjournment and obtained the date of 13.02.2018. On 13.02.2018 again adjournment was sought by clerk of the opponent by moving adjournment application and again matter was adjourned to 19-02-2018 for cross-examination of applicant and his witnesses. On 19.02.2018 again application moved by clerk of the opponent and in the interest of justice same was allowed and matter was adjourned to 22.02.2018 with clear direction to opponent side to appear and conduct the cross-examination of applicant and his witnesses. On 22.02.2018 again advocate for opponent not appeared and applicant and his witnesses were in attendance, so application for adjournment moved by the clerk of the opponent was disallowed and cross-examination of applicant and his witnesses declared Nil. It is pertinent to mention here that on 22.02.2018 advocate for applicant filed statement along with copy of computer generated air ticket and mentioned therein that applicant is going abroad. Thereafter, applicant closed his side of evidence and this application was moved by opponent side on 05.03.2018.
"The rent application as filed on 10.07.2017 and record shows that opponent side is responsible for delay. This matter of record that so many opportunities were given to opponent side but opponent side avoided to appear and conduct the cross-examination of applicant and his witnesses. No documentary evidence is attached with application in hand to show that the opponent and his advocate was ill."
2. Mr. Naveed Anjum, learned advocate representing the petitioner contended that order dated 22.02.2018 and 05.04.2018 respectively has been passed by respondent No.3 on technical ground therefore both may be set aside; per learned counsel no proper opportunity of cross-examination had been provided to respondents Nos.1 and 2 to re-cross-examination of the landlord applicant; per learned counsel petitioner is facing grave injustice and difficulty since the respondent No. 3 passed impugned order; per learned counsel the instant constitution petitions may be allowed and order dated 22.02.2018 and 05.04.2018 may be set aside.
3. Mr. Ghulam Mustafa Khawaja, advocate, representing respondents Nos. 1 and 2 respectively contended that the both the impugned orders are well reasons and are as per spirit of law of land; per learned counsel the learned rent controller did not err in law while striking out defence of the tenant because ample opportunities have been provided for re-cross-examination; per learned counsel the petitioner has willfully and deliberately avoided to cross-examine the applicant and his witnesses with the pretext that petitioner ought to have fly abroad because air ticket was provided before the learned rent controller; per learned counsel petitioner did not bother to cross-examination the applicant and his witnesses on one pretext or the other; per learned counsel there is no documentary evidence on record to show their intentional absentia; per learned counsel there is no bar when utmost several opportunities have been provided but no one come forward to put cross-examination; per learned counsel the captioned constitution petition is also not maintainable; per learned counsel the constitution petitions may be dismissed in the interest of justice and equity.
Learned counsel has relied upon the case law reported as PLD 1983 Supreme Court 21, 1983 CLC 998, 1987 CLC 1620 and 2003 YLR 1722.
4. Heard and record perused.
5. Admittedly after scanning entire record like smoke over screen needs whitewash. Primarily applicant through his attorney was examined on 29.11.2017, cross-examination was reserved at the request of learned counsel for the opponent tenant thereafter on 18.01.2018 after lapse of forty-nine days learned counsel for the opponent was able to cross-examine the respondent No.1; time and again learned counsel for the opponent experienced same request and had requested learned rent controller to adjourn the matter for further cross examination to some other date, request of the learned counsel for the petitioner was allowed and matter went for cross-examination on 22-01-2018. Learned rent controller owing to the Judicial Policy introduced in the Year 2009 whereby no adjournment can be given in rent cases and if any given then the application for adjournment with genuine reasons is necessary. Learned rent controller keeping in view the Judicial Policy as was introduced; on 22-02-2018 learned rent controller struck out the defence by experiencing several adjournments sought by learned counsel for the opponent except documentary evidence and the valid reasons thereto.
6. Glimpsed upon excuses as was tendered by the opponent set not to cross-examine the applicant is responsible for causing wilful, deliberate and intentional preplanned delay by obstructing the proceedings cannot be cured in writ jurisdiction. Series of ample opportunities have been provided to the petitioner tenant before the rent controller to re-cross-examine the applicant and his witnesses but opponent tenant failed to avail such an opportunity as was provided to him before the rent controller. It surfaces that opponent was not ready to bring truth on record but choice with mala fide intention to go ahead and obstruct the proceedings in any manner. More so, record reflects that there were crystal clear directives issued by the rent controller with mutual consent for conducting cross-examination but it was opponent who failed to avail such an opportunity.
In the case of Mian Sher Bahadar and 2 others v. Civil Judge, Takht Bhai and another reported in 2003 YLR 1722, it has been laid down as follows:-
"----Ss. 13 & 15---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Discretion exercised by Rent Controller---Tenants having failed to produce their evidence despite several opportunities were provided to them in that regard, Rent Controller struck off right of defence of tenants---Rent Controller passed order striking off defence of tenant competently in proceedings pending before him and discretion exercised by Rent Controller did not suffer from any error of jurisdiction---Discretion exercised by Rent Controller neither being arbitrary nor capricious, same could not be interfered with by High Court in exercise of Constitutional jurisdiction---Constitutional petition otherwise filed against interlocutory/ interim order of Rent Controller, was not maintainable.
----Ss. 13 & 15---Constitution of Pakistan, (1973), Art. 199--- Interlocutory/interim orders--- Interference through Constitutional petition- Scope--Constitutional petition filed against interlocutory/interim orders of rent collector was not maintainable.
7. All the recourse has been measured by putting compass over the proceedings before the rent controller, the impugned order of the learned rent controller is not arbitrary, vexatious, capricious or without jurisdiction and there is no jurisdictional error which requires interference by this Court. Be that as it may it is also well settled principle of law that litigation always be adjudged on merits rather to avoid technicalities. Herein this case, there is no technical error as alleged by the learned counsel for the petitioner although several opportunities were provided to him to carry out re-cross-examination of the applicant and his witnesses which opportunities have been lost by tenant opponent himself, the delay in making re-cross examination is on the part of the opponent tenant and not on the part of applicant and his witnesses as well as learned rent controller.
8. At the juncture I am of the firm opinion that learned rent controller has not erred in law and the facts and had provided opportunity for further cross-examination, in failure of opponent tenant, finding no other way learned rent controller ordered to struck off the defence of the opponent. The impugned order is well reasoned and is as per spirit of Judicial Policy as was introduced in the Year 2009 whereby no adjournment can be sought, if, with sound reasoning but there is no documentary proof on record to show that there was seriousness of ailment of either party viz. tenant opponent or learned counsel for the opponent which can be cured while exercising power under writ jurisdiction. Similarly appeals against the similar order are not competent, on the basis of the principle laid down by the Hon'ble apex Court, the writ petition also, would not be entertained. The party aggrieved in such like situation should wait till a final order is passed against it and then file an appeal under section 15 of the Ordinance. The reference is made to PLD 1983 Supreme Court 21 in the case of Abdur Rehman v. Haji Mir Ahmed Khand and another.
9. The upshot of above discussion is that the instant constitution petitions are very much incompetent and are hereby dismissed.
SA/K-1/Sindh Petitions dismissed.