1983 PLP 3018 (CLC)

1- Respondent 3s owner of building known as Shakil Mansion on plot No. H.C. 20, Ali Akbar Market, Central Commercial Area, Bahadurabad and the appellant is tenant in respect of a shop on the ground floor on monthly rental of Rs 100.

2. The respondent filed an application under section 13(2) of the Sind Urban Rent Restriction Ordinance, 1959 for ejectment of the appellant o 30th September, 1978 on the ground that in spite of demands he had no paid rent from 1st March, 1975 to 31st August, 1.975. The appellant in his written statement, filed on 25th November, 1975 adrQied the tenancy and the rate of rent but denied default stating that the res pondent had refused to . accept the rent and, therefore, he had been deposit ing the same with the Controller in Miscellaneous Application No. 2210 o 1975 and no rent was due.

3. On the pleadings of the parties the following issues were settled o 25th August, 1976 (1) Whether the opponent has committed wilful default in payment o rent ? (2) To what relief the applicant is entitled ? (3) What should the order be ?

4. On 15th January, 1977 the case diary shows that advocates were present and the case was adjourned . to 17th February, 1977 for evidence. On 9th April, 1977 Advocate for applicant was present but there Was non present for opponent and the case was adjourned to 14th May, 1977 for the same purpose. The proceedings were adjourned to 17th July, 1977 and 10th September; 1977 when again parties counsel were present and case w adjourned to 3rd November, 1977. There were many adjournments of the proceedings and on 13th May, 1979 the respondent/applicant and his Advocate were present but the appellant/opponent and his Advocate were absent. Evidence of the respondent/applicant was recorded in support o the application and his Advocate closed his side. On 8th December, 197 the Controller recorded and announced the impugned order. Execution application was filed by the respondent on 4th March, 1980 and on 20th March, 1980 the appellant filed application for setting aside the ex part decree stating that till the framing of issues on 25th August, 1976 the matte was pending before the Civil Judge No. 21 as all the Civil Judges were functioning as Rent Controllers within the area of their jurisdiction but thereafter three Courts of Rent Controllers were appointed for trying all rent cases and therefore, the appellant was waiting for notice of transfer but n such notice was received by him or his counsel. He came to know' about the impugned order only on 16th March, 1980 when he received not of execution.

5. The respondent filed a counter-affidavit stating that after the transfer of Rent Case No. 3475 of 1975 the Advocate for opponent/appellant had waived notice and made such endorsement on the diary of the case. There had been about 29 hearings in the case after it was transferred but the opponent/appellant never cared to attend and prosecute the case during a period of 3' years till it was ex parte on 8th December, 1979. The respon dent also referred to the fact that since March, 1975 till 23rd April, 1980 for a period of 5 years the tenant had not deposited any rent.

6. The learned Controller by his impugned order dated 5th May, 1980 dismissed the application. The instant appeal was presented on 10th May, 1980. An application (C.M.A. 1409;1980) under section 5 of the Limita tion Act was also filed alongwith the memo. of Appeal stating that the appeal is so against the main ex parte decree of the Controller passed on 8th December, 1979 of which the appellant had knowledge only when he was served with notice of execution application. The application, therefore, sought condonation of delay in filing appeal against the order dated 8th December, 1979.

7. By a common order dated 13th October, 1980 recorded in First Rent Appeal No. 168 of 1980, the application under section 5 of the Limi tation Act was dismissed as being not maintainable and the instant appeal was dismissed as being barred by time by Naimuddin, J. A review applica tion (C.M.A. 3376/1981 was allowed by the learned Judge observing that the appeal dismissed related to order dated 8th December, 1979 but so far it is directed against order dated 5th May, 1980 the appeal had not been disposed of.

8. I have heard arguments of Mr. Anis Ahmed, the learned Advocate for the appellant and Mr. Munawar Abbas, the learned Advocate for the respondent and have perused the record of proceedings before the Con troller. At the outset it is made clear that the appeal against the order dated 8th December, 19.79 stands disposed of by order of my learned brother Naimuddin, J. and the view taken by him in First Rent Appeal No. 168 oft 1980 was upheld by the Supreme Court. The instant appeal is only against the order of the Controller dated 5th May, 1980. The only contention of substance raised before the learned Controller and now before this Court in the instant appeal is that notice of transfer of the rent case was not receive by the appellant or his counsel and, therefore, he did not attend the proceedings before the transferee Court. However, this is belied by the Court diary dated 19th March, 1967 which reads as under "19th March, 1976 Case called. Opponent's counsel present. None present for applicant. Notice waived by the opponent. Case transferred to IIIrd Rent Controller, Karachi vide D. J. Order No. A/989/76, dated 6th March, 1976. Put off to 12th April, 1976 for same purpose court is vacant. Link Judge. XXI C.J. Karachi." Under the Sind Civil Court Rules it is the Link Judge who is permitted to sign the diaries in case the Presiding Officer is absent and, therefore, the argument that the Court was vacant and the reader had written the diary cannot be accepted as the diary also shows that it was signed by the Link Judge. Further as observed by the learned Controller the case diaries show that counsel of the parties appeared on so many dates and the issues were admittedly framed in the presence of both the counsel of the parties on 25th August, 1978.

9. In Abdul Shakur Haji Aminuddin v. Miss Mumtaz and others, P L D 1961 (W.P.) Kar. 145 decision of the Karachi Bench of the erstwhile High Court of West Pakistan, it was inter alia observed that once a party receives intimation of an action it is for him to pursue it and to keep himself in touch with the proceed, either personally or through his counsel. Under the circumstances there is no weight in this appeal which is dis missed however, with no order as to costs. The appellant is hereby directed to give vacant possession of the shop premises within one month of the fiat of this judgment. M.Y.M. Appeal dismissed.