P L D 1982 Karachi 451 (PLP)

This second appeal is directed against the judgment dated 7‑1‑1980, passed by the learned District Judge, Sukkur, who dismissed the appeal of the appellants whose defence was struck off by the learned Rent Controller under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, and they were directed to put the respondent/landlord in possession of the premises in question within 30 days of that order.

2. Briefly, the facts stated are that the respondent filed an application for ejectment of the appellants under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, on grounds of default, in payment of rent, personal use, and sub‑letting. During the pendency of the proceedings, the learned Rent Controller passed an order on 5‑6‑1978 directing the appellants to deposit the arrears of the rent and the future monthly rent under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959. The appellants deposited the rent a rears, whereas defaulted in the payment of monthly rent for the month of October, 1978 by 15‑11‑1978, the due date. The plea raised was that on account of serious illness of Haji Muhammad Umer grandfather of Muhammad Farooq partner of Haji Zafar Ahmed, they had to leave for Karachi on 8‑11‑1978, where Haji Zafar Ahmed also fell ill and as a result they had to send monthly rent of Rs. 400 under postal cover letter to the Court through the cheque drawn on United Bank Limited Nishtar Road, Sukkur on 8‑11‑1978 on account of illness of Zafar Ahmed they came back to Sukkur on 21‑I1‑478 and on making inquiry they found that the postal cover was not received in the Court of learned Rent Controller. Therefore, an application was made on their behalf on 23‑11‑1978 for condonation of delay in default of payment of rent. Subsequently, an application on 7‑4‑1979 was made on their behalf for permission to lead evidence to prove the fact of the illness and sending of the cheque in time on 8‑I1‑1978, which application was granted by consent of the respondent. On 1.5‑7‑1979, the appellant No. 2 made an application under Order XIII, rule 2, C. P. C. for condonation of delay for filing certain documents to be considered. in evidence for the purpose of condonation of delay in depositing the monthly rent for the month of October, 1978. This application was argued and was fixed for orders on 28‑10‑1979. The learned Rent Controller on 28‑10‑1979, instead of passing an order on the application under Order XIII; rule 2, C. P. C. and allowing the parties to lead evidence in view of the application already granted by him to determine as to whether it was a fit case for condonation of delay in depositing the rent for the month of October, 1978, passed an order under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, striking off the defence of the appellants and directing them to put the landlord/respondent in posses sion of the premises.

3. There is no dispute that an application for condonation of delay in depositing the rent for the month of October, 1978, was filed on the grounds mentioned above, on 23‑I1‑1978. There is also no dispute that in order to prove the alleged grounds with regard to illness and tendering o cheque on 8‑11‑1978 for condonation of delay, an application for leading evidence was made on 7‑4‑1979 which was granted. It is also an admitted position that while the matter was pending for recording of evidence on this issue, the application was made by the appellants under Order XIII, rule 2, C. P. C. for condonation of delay to produce certain documents to be considered in the evidence in support of the pleas that the cheque was despatched on 8‑11‑1978, under a postal cover, and the illness of Haji Muhammad Umer, grandfather of the appellant and War Ahmed partner of Muhammad Farooq. In view of that admitted position the learned Rent Controller instead of allowing evidence to be recorded passed an order striking off the defence of the appellants. The learned counsel for the appellants Mr. Rehmanali Naqvi, in view of the circumstances, contended that the learned Rent Control r, should have passed an order on the application under Order XIII, rule 2, C. P. C., allowed the evidence to be led by the parties on the pleas advanced by the appellants in support of the application for condonation of delay, in depositing rent for the month of October, 1978 and should then have disposed of the case. He has therefore, contended that the case may be remanded to the Court of the learned Rent Controller for re‑consideration and finding on that issue, before the case is finally disposed of. 1n my view both the learned Courts below have failed to give a serious thought on such a plea raised on behalf of the appellants though the learned Ist Appellate Court in its judgment has observed as under :‑ "In any case, it is borne out of record that the learned Controller passed the impugned order without disposing of application under Order XIII, rule 2, C. P. C. and without going through the diary‑sheet of the case. Moreover, the impugned order was also passed after more than 1i months of hearing of the arguments if any, which arguments were stated to have been heard on 15th of September, 1979. In this way the impugned order can conveniently be set aside and the Rent Controller can be directed to dispose of the application of the appellants dated 15th July, 1979 and to record evidence as may be tendered before him and then to dispose of the ,application in regard to the default. However, after going through the entire record I feel that it will not be advisable now to remit the case back to the Controller, as this case can conveniently be disposed of by the Court, on the basis of the material on record."

4. I have gone through the material on record and have also heard the learned Advocates for the parties and I am unable to agree with the Ist Appellate Court that the case can conveniently be disposed of without remanding it to the Lower Court for reconsideration, as neither the application under Order XIII (2), C. P. C. has been finally disposed of nor the parties have been allowed to lead evidence on the issue which prayer was. already granted by the learned Rent Controller. What I further find that the adjournments allowed to the appellants were granted by the Court of the learned Rent Controller and neither the Court closed the evidence of the appellants nor the appellants themselves closed their evidence. What is further clear in the impugned judgment of the learned Ist Appellate Court that though the learned ;Judge found sufficient reasons to remand the case to the trial Court for reconsideration, he mainly basing his findings on presumptions and surmises rather than on positive evidence, passed the impugned judgment, which has caused a serious prejudice to the case of the parties and has resulted in miscarriage of justice.

5. In the result, I set aside the judgments of the two Courts below and remand the case to the Court of learned Rent Controller with the direction to dispose of the application under Order XIII, rule 2, C. P. C., allow the parties to lead evidence on the issue as to whether it was a` fit case for ,condonation of delay in default of payment of rant for the month of October, 1978 or not, and then dispose of the case according to law. The appeal is allowed accordingly, with no order as to costs. s. A. H. Appeal accepted. Case remanded.