1986 PLP 1374 (MLD)

(3) Whether the opponent has committed such acts as are likely to impair the material value or utility of the premises? (4) Whether the opponent has indulged in such activities as are causing nuisance to the neighbours (5) Whether the landlord requires the premises in good faith for his own occupation or for the occupation of his children? (6) What should be the order? The respondent in support of the case examined himself and his son while the appellant did not examine himself in defence. The learned Rent Controller on the basis of the evidence produced by the parties and after taking into consideration the arguments advanced by the learned counsel for the parties, decided issues Nos.1, 2, 3, and 4 in the negative and issue No.5 in the affirmative and allowed the rent application on the ground of personal use only, vide his order, dated 10‑10‑1983. . In support of the above appeal Mr. Mirza Abdul Rashid, learned counsel for the appellant, has urged that (1) the respondent has not established bona fide requirement and, (2) that the learned lower Court was probably determined to decide the matter in haste while ignoring the rights of the appellant to defend his case. On the other hand Mr. Faizuddin, the learned counsel for the respondent, has urged that the respondent has established bona fide requirement that he needs the premises for his own use. He was also submitted that the learned lower Court did not determine to decide the matter in hasts. Reverting to the contention No.1 of the learned counsel for the appellant that the respondent has not established bona fide requirement in the instant case. The respondent has stated in his eviction application that he had suffered from pulmonary T.B. and after effects of pulmonary T.B., he needs enormous hygienic space for his own comfort and in order to keep members of his family away from the affliction. He has also stated that the wife of the respondent had suffered from neurosis resulting in growth of adverse symptoms upon her heart. It was advised that she should take complete rest and avoid climbing exercise as much as could be possible. He has further stated that the present accommodation which was sufficient in 1968 does not cater the need of respondent now. The appellant/ tenant denied the contents of paragraphs i 12, 13 and 14 of the eviction application. He has stated in his written statement that the respondent has got sufficient spacious accommodation on the first floor and there are three rooms on the ground floor which are lying vacant and is not in their use so far. The respondent filed affidavit‑in‑evidence and has stated that he is contemplating to carry his son Athar Ahmed Khan who had a wider circle' of acquaintances and friends. They throng at the residence. It is very desireable that he must have separate apartment which may cater his needs. His other children namely Shagufta Ahmed, Suhail Ahmed and Ambreen Ahmed do need spacious and separate accommodation for the undisturbed prosecution of their respective studies for career in life. He also stated that he had suffered from pulmonary T.B. and needs seclusion and comfort without any mental or physical disturbance. His wife had suffered from neurosis resulting in growth of adverse symptoms upon her heart. She has been advised not to use climbing stairs and similar other exercise in order to survive recuperate. He also stated that he needs the entire ground floor and first floor .for his genuine personal bona fide needs. His son has also filed affidavit‑in‑evidence and fully supported the version of his father. He has also stated that he completed his studies y and he is employed these days with Messrs National Beverages, Karachi. He also needs the premises as his marriage is hauled up for want of As against all the aforesaid evidence, there is only denial in the written‑ statement to the effect that the respondent has sufficient accommodation. It is appear that the averment in the ejectment application requirement of the respondent has gone unchallenged though enough opportunity was afforded to appellant but he did no avail of the same. In such circumstances nothing has been brought b way of cross‑examination which could show that claim of personal us is false or is based on wrong statement. It is well‑settled legal position that the assertion of the landlord on oath as to requirement of the premises for his personal use is to be accepted if constitutes with his averment in his rent application an not shaken in cross‑examination or disproved in rebuttal. The evidence of the respondent in the instant case fulfilled the standards laid dow by the Superior Courts. Reliance is placed on the case of Badruddi Hassan Farooqi through 5 legal heirs versus Manghi Industrial Hom PLD 1976 Kar.

620. The principles laid down in the above case were duly approved by the Hon'ble Supreme Court in the case of Syed Abdus Sattar Chisht v. Aftab Malik 1980 S C M R 742 and the case of Peerzada Rafiq Ahmed v. Chaudhry Abdul Rehman 1980 S C M R

772. The finding on this point is duly supported by the attendin circumstances and the evidence on record. Learned counsel for the appellant has not been able to point out any omission or misreading o evidence. In view of the above facts, the assertion made by the respondent in ejectment application and in his evidence that he required the premise in good faith for his personal use and for the use of his wife an children has gone unchallenged. Reverting to the last contention of the learned counsel for the appellant that the learned Rent Controller decided the case in haste, I have perused the diary sheets of the lower Court record. It seems that on 19‑5‑1982 the respondent and his son filed affidavit‑in‑evidence and the case was adjourned to 18‑7‑1982. The case was adjourned at the request of the learned counsel for the appellant to 9‑8‑1982. Then again it was adjourned to 1‑9‑1982 when the appellant did not cross‑examine the respondent and his son. The case was adjourned to 9‑9‑1982 for the affidavit‑in‑evidence of the appellant. On 9‑9‑1982, the affidavit‑in‑evidence was not filed but an application for adjournment was filed which was allowed and the case was adjourned to 12‑10‑1982. On 12‑10‑1982 the affidavit‑in‑evidence was not filed as such the side of the appellant was closed and the matter was adjourned to 20‑10‑1982 for final arguments. It seems that the respondent and his son filed affidavits‑in- evidence on 19‑5‑1982. The case was adjourned to 18‑7‑1982 for the cross‑examination of the respondent and his son. On 18‑7‑1982 the case was adjourned to 9‑8‑1982 for the same purpose. On 9‑8‑1982, the learned counsel for the appellant filed an adjournment application on the ground that he was busy before other Courts and the case was adjourned to 1‑9‑1982. On 1‑9‑1982 the appellant was present in person and his counsel was absent. The learned Rent Controller closed the respondent's side for the purposes of cross‑examination and adjourned the case to 9‑9‑1982 for the purpose of filing affidavit‑in‑evidence of the appellant. On 9‑9‑1982 the appellant filed an application for adjournment as his counsel was out of Pakistan. The application was granted and the case was adjourned to 12‑10‑1982. On 12‑10‑1982 the appellant did not file affidavit‑in‑evidence as ordered by the learned Rent Controller and as such the side of the appellant was closed and the case was adjourned to 20‑10‑1982 for final arguments. It seems that on 19‑10‑1982 the learned counsel for the appellant filed application for recalling the orders, dated 1‑9‑1982 and 12‑10‑1982 and for permission to cross‑examine respondent and his witnesses. The respondent filed counter‑affidavit. The learned Rent Controller after taking into consideration arguments of the learned counsel for the parties dismissed the applicAtion, vide order, dated 28‑11‑1982. On a perusal of the application under section 151, C.P.C. and the affidavits of the appellant and his counsel, I am of the opinion that the absence of the appellant and his counsel are not of a satisfactory and convincing nature, and so I am not inclined to interfere with the finding of the learned Rent Controller that the appellant could no B establish good cause for his absence on 1‑9‑1982 and 12‑10‑1982 in this case. I make explicitly clear that section 151 of the Civil Procedure Code is not invocable when the defendant /opponent fails to establish existence of good cause or sufficient cause for his non‑appearance. Reliance is placed on the following decisions of Hon'ble Supreme Court. In the case of Shivrathan G. Mohatta v. Muhammadi Steamship Co. Ltd. P L D 1965 S C

669. In this case a suit was filed by the plaintiff was dismissed in default of appearance but the order of the learned Single Judge was reversed in Letter's Patent Appeal by L.P.A. Bench who found that the counsel for the plaintiff has been negligent in the prosecution of the suit but thought that it would be wrong to make the plaintiff suffer on account of his advocate's professional misconduct. The Hon'ble Supreme Court while hearing the appeal against the order of L.P.A, Bench concurred in the view taken by the L.P.A. Bench of the High Court but added that there were other sufficient and good grounds for restoration of the suit which reasons were specified in that judgment of the Supreme Court. In the case of Zulfiqar Ali v. Laldin and others reported in 1974 S C M R page 164, a second appeal was dismissed in default by a learned Single Judge of the Lahore High Court and the Division Bench of the Lahore High Court dismissed in limine the appeal filed against that order. The matter came up before the Hon'ble Supreme Court in a petition for special leave to appeal and it was argued on behalf of the petitioner that the dismissal of the appeal in default was due to the negligence of the counsel and not due to the negligence on the part of the petitioner and, therefore, the restoration should have been allowed.This contention was not accepted and the Hon'ble Supreme Court observed as follows. The contention is without any force. The mere fact that a litigant lips engaged a counsel to appear on his behalf does not absolve him of all responsibility. It was as much his duty as that of the learned counsel, engaged by him to see that the appeal was properly and diligently prosecuted. If he engaged counsel who was lacking in his sense of responsibility to the Court, it is he who should suffer and not the other side. In the circumstances of this case, when no one appeared when the appeal was called on, the Court had no alternative but to dismiss the appeal in default. The refusal to restore was also fully justified in view of the fact that the ground made out in the, petition for restoration was found to be untrue. The petitioner could not legitimately take any exception to this order. The appeal was, therefore, rightly dismissed by the Division Bench and we see no reason to interfere. This petition is, accordingly, dismissed." In the case of Chiraghdin and 4 others versus Mst. Jannat Bibi and 6 others 1976 S C M R 399 a petition for special leave to appeal had been dismissed for non‑prosecution by the Hon'ble Supreme Court and an application for restoration was also dismissed in spite of the fact that Advocate for the petitioner was ill on the date of hearing for the reason that neither the Advocate‑on‑Record nor the petitioners appeared on the date of hearing. In the case of Rafique Ahmed Khawaja versus Abdul Haleem 1982 S C M R 1219 the Hon'ble Supreme Court was not impressed with the contention that the appellant was under no obligation to pursue his case and that his case had gone by default entirely due to negligence of his counsel. The Hon'ble Supreme Court took the view that High Court on a thorough re‑examination of the explanation furnished by the appellant in support of his non‑appearance had come to the conclusion that the appellant himself was negligent in not keeping in touch with his counsel when the circumstances indicated that he was available in Karachi. A reference was also made to above cited case of P L D 1965 S C 669 and it was observed that the decision in that case did not proceed solely on the basis that the party should not suffer on account of the professional misconduct of , his Advocate but further reasons were given in support of the order of the High Court. It was, therefore, observed that P L D 1965 S C 669 had no authority for the proposition that a party cannot suffer on account of negligence of his counsel in the conduct of proceeding before the Court. I am of, the view that where the counsel of a party has been negligent, his client must Also suffer. On the basis of the above-cited case I am of the view that no doubt a party can be made to suffer for the negligence of his Advocate but generally the Court also examines the conduct of the party. If the party is also at fault and is guilty o carelessness or negligence, he suffers for his fault and for the fault of his Advocate. But where the party is not at all at fault and is not guilty for any carelessness or negligence in view of the special circumstances of the case and to save the party from suffering graver injustice or hardship, the Court may not penalise the party for the negligence of his Advocate. In the light of the above observation I am of the view that in the instant case the appellant himself was careless and negligent. In these circumstances the learned Rent Controller was justified in not recalling his earlier orders. Absence of the appellant from the proceedings and lack of interest taken by his counsel left the Rent Controller with no other alternative but to proceed with the case, as he has done. I am, therefore, of the view that no interference was required with the final order of Rent Controller. In these circumstances the cases cited by the learned counsel for the appellant are not applicable to the facts of this case. In my view a correct order has been passed by the Rent Controller allowing the application on the ground of the personal requirement and I see no reason to interfere with the order passed by the learned Rent Controller. As a result, First Rent Appeal No.897 of 1983 is dismissed but with no order as to costs. The appellant /tenant is, therefore, granted time till 30‑9‑1985 to vacate the premises failing which writ of possession will be issued without any notice to the appellant. H.B.T. Appeal dismissed.