1985 PLP 3021 (CLC)

Facts necessary for the disposal of this constitutional petition emerging from the perusal of the original record summoned in this Court are that Muhammd Hanif and Muhammad Rafiq sons of Lal Din, respondents Nos. 3 and 4 herein, brought an application for ejectment of the petitioner from a shop bearing No. B-II-17-S-19, situate in Gujranwala City, on 2-3-1981, on the ground of personal need of respondent No.

4. The eviction petition was contested by the petitioner. Necessary issues arising from the pleadings of the parties were framed on 18-10-1981 and the case, thereafter, had been adjourned to different dates. On 27-11-1982, ex parte proceedings were ordered against the petitioner but the same were set aside on 17-2-1983, and the case was adjourned to 8-3-1983, for evidence, on which date evidence of the respondents-landlords was recorded and the case was posted to 2-4-1984, for evidence of the petitioner. On the latter date, the petitioner's evidence was not present. Respondent's counsel was also not available. Case was, therefore adjourned on the request of both the parties to 3-5-1983, for petitioner's evidence with the direction that the petitioner shall produce it at his own responsibility. Petitioner did not produce his evidence on 3-5-1983, and took the plea that the witness summoned by him was not in attendance. Learned Rent Controller did not accept this plea and held that it was for the petitioner to get his witnesses served but he neither got them served nor had he produced them in Court. Learned Controller asked the petitioner's counsel to examine the petitioner but he declined to get his statement recorded. Learned Rent Controller, therefore, came to the conclusion that the petitioner wanted to prolong the proceedings and he did not intentionally get his witnesses served. With these findings/conclusions, learned Controller by his order, dated 3-5-1983 closed the petitioner's evidence and directed his ejectment holding that in the absence of any rebuttal from the petitioner, case of the respondents-landlords was proved by the evidence led by them. Petitioner preferred an appeal against the aforesaid order of ejectment which was dismissed by the learned Additional District Judge, vide order, dated 12-4-1984 impugned in the present petition.

2. Learned counsel for the petitioner submits that the findings of the learned Rent Controller that the petitioner had deliberately not got his witnesses served is against the record. He points out that the petitioner had summoned Saleh Muhammad, a petition-writer, as his witness for 3-5-1983, but the summons were not issued to him with the result that he was not available on that date. According to the learned counsel, he was a very important witness from the point of view of the petitioner and without him, mere statement of the petitioner would have been of no use.

3. Submission of the learned counsel is supported by the record which shows that the petitioner made an application for summoning Saleh Muhammad, petition-writer, as his witness for 3-5-1983, which application was allowed and the petitioner had also deposited the diet money and the process fee but the said witness is not shown to have been summoned.

4. Ch. Mushtaq Ahmad Khan, Advocate, who was holding the watching brief for respondents Nos. 3 and 4 has accepted notice. He has also examined the record and has very fairly and frankly conceded that the summons having not been issued to the aforesaid witness, petitioner's evidence should not have been closed and he ought to have been allowed another opportunity to produce his evidence. Learned counsel for the petitioner has submitted that if an opportunity is allowed to the petitioner, he will himself appear as his witness and produce only Saleh Muhammad, petition-writer, as his other witness and conclude his evidence on one date and that he will produce Saleh Muhammad on his own without summoning him through the Court.

5. In view of the position aforestated, I find considerable force inthe submission of the learned counsel for the petitioner that the learned Rent Controller erred in shutting out the evidence of the petitioner, A who was thereby denied an opportunity to rebut the case of the respondents. Impugned orders of ejectment cannot, therefore, be sustained. 6.? In view of what has been stated above, this writ petition is allowed and the impugned orders passed by the learned Rent Controller B and the learned Additional District Judge are declared to be without lawful authority. Parties are directed to appear before the learned Rent Controller on 15-1-1985, who will decide the eviction petition afresh after allowing opportunity to the petitioner to appear as his own witness and to produce Saleh Muhammad, petition-writer, as his witness. It is clarified that the petitioner shall produce this witness at his own responsibility and will not make a request for summoning him through Court. It is further directed that the learned Rent Controller shall decide the eviction petition within three months from today. There shall be no order as to costs in the circumstances of the case aforementioned. I.D.????????????????????????????????????????????????????????????????????????????????????????????????????????????????? Writ issued.