1989 PLP 1505 (CLC)

8. The main attack and the whole emphasis of the learned counsel for the appellant was that the evidence of the appellant was wrongly and illegally closed. The learned counsel, in this behalf, as already noted, has relied on the cases of Haji Muhammad Ramzan Saifi, Mst. Alain Bibi and Allied Bank. Besides the other points of distinction the order in the three cases were passed in civil suits while the present is an ejectment petition. Neither C.P.C. is applicable nor Rent Controller is a Court stricto senso. Additionally the learned Rent Controller has not referred to any provision of law while closing the evidence of the appellant and‑rightly too. The order would be deemed to have been passed under Order XVII, Rule

1. The same reads as under.‑ "(1) The Court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit. (2).................. (3) Where sufficient cause is not shown for the grant of an adjournment under sub‑rule (1) the Court shall proceed with the suit forthwith."

9. Now coming to the factual controversy the first date for the evidence was 5th of November, 1987 which was declared holiday on account of Eid‑Millad‑un- Nabi, 6th was the probably Friday, therefore, the ejectment came up for hearing on 17th of November, 1987. The same was adjourned to‑ for the evidence of the petitioner to 19th November, 1987. Neither any witness was present nor any one was summoned for this date. Thereafter there were 14 dates for the evidence of the appellant till it was closed on 16th of June, 1988. Out of these opportunities on one occasion the Presiding Officer was on leave while at 4 other occasions he was busy with other official work, therefore, the matter could not be taken. The learned Rent Controller after granting 10 opportunities recorded that no evidence is present, therefore, the appellant is allowed last opportunity to produce the evidence. This happened on 14‑4‑1988 and petition was adjourned to 5‑5‑1988 but again no evidence was in attendance but since respondent put in objections to the report of the Local Commissioner, which were treated as application, therefore, the matter was adjourned to 2‑6‑1988. On this date, since the Presiding Officer was busy, therefore, ejectment petition was posted to 9‑6‑1988. The learned Rent Controller again recorded that no evidence is in attendance and once again made it last opportunity for the production of evidence by the appellant. Thereafter the petition was adjourned to 16‑6‑1988. The appellant was called upon to produce the evidence but no witness was in attendance, therefore, the Rent Controller asked the learned counsel for the appellant to produce the appellant as his own witness. This was not done and he refused to examine the appellant. The result was that the evidence of the appellant was closed except the statement of Municipal Engineer, who was a summoned witness and who had asked for adjournment on account of his own official engagements. The petition was accordingly adjourned to 20‑6‑1988 for statement of Municipal Engineer, who appeared and informed that he is not the author of the report sought to be proved from him, therefore, the appellant was directed to summon the proper person. This necessitated the adjournment of the ejectment petition to 4‑7‑1988 but as the process fees was furnished by the appellant just two days before the date of hearing, therefore, the witnesses could not be served and matter was adjourned to 7‑7‑1988. The appellant was directed to get the witnesses served at his own responsibility and furnish process fee and diet money by next day. The appellant once again failed, to discharge his obligation. He only furnished the process fee but neither deposited the diet money nor made any effort for the service of the said witnesses. The result was that the statement of this witness was also excluded on account of the failure of the appellant to deposit the diet money and get the witnesses served.

10. The learned counsel for the respondent in support of the arguments that the evidence of the appellant was rightly and legally closed has referred to the cases of Col. (Retd.) Sadiq Hassan Sheikh v. Lt.‑Col.Farooq Ahmad 1987 SCMR 1887, Abdul Majeed v. Lutfi Siddiqui and two others 1987 CLC 455, and Abdul Hassain v. Sardar Muhammad Usman Jogezai 1988 CLC 2429 at 2430. The relevant portion of the judgment of the Honourable Supreme Court in the case of Sadiq Hassan Sheikh reads as under:‑ "He has contended that the petitioner was not given sufficient opportunity to lead his evidence. This contention is without any substance. As already mentioned the respondent concluded his evidence on 15‑10‑1986. The order closing the evidence of the petitioner was made on 18‑12‑1986. In between these two dates the proceedings were adjourned on three occasions to enable the petitioner to produce his evidence. It was only when the learned Additional Rent Controller was satisfied that the petitioner was purposely prolonging the proceedings that he made the order closing his evidence. We can find no infirmity in the order of the learned Additional Rent Controller in this regard. While the relevant portion of the judgment of Abdul Hussain case reads as under:‑ "Additionally it is undisputed that subsequent to 23‑11‑1987 four clear opportunities were afforded for appearance of appellant in Court which were not availed without any plausible cause or explanation. Evidently Courts cannot be helpless spectators. to wait indefinite by surrendering to the whims or choice of parties‑ whether for production ‑of evidence or recording their statements. A party to the proceedings is obviously bound to comply with time schedule anil directions of the Court with complete diligence. Whereas in the instant case there is not only negligence of appellant reflected from record but directions of the Court have also been clearly disregarded. Therefore, in my opinion by all standard opportunity provided to appellant was quite reasonable and he is not entitled to any further concession. In this view I am also supported by observations in following judgments. Muhammad Adam and others v. Muhammad Yousaf 1980 CLC 467; N.L.R. 1982 Civil 655; Writ Petition No.2786 of 1981 (Lahore); Zafar Ahmad v. begum Amir Ahmad Khan and others PLD 1982 Lah. 785."

11. The record reveals that neither the appellant submitted any list of witnesses nor any witness was present on any of the dates fixed for his evidence. The learned counsel for the respondents has also pointed out that the appellant was delaying the proceedings at every step. In this behalf he has pointed out that the appellant was served for 26‑2‑1986 but he got an adjournment for filing the reply on the pretext that the copy has not been supplied to him in spite of the fact that he has clearly endorsed on the notice issued to him that he has received the copy. Anyhow the petition was adjourned to 12‑3‑1987. The written reply was not still submitted and petition was adjourned to 26‑3‑1987, then to 2‑4‑1987, then to 16‑4‑1987 and thereafter to 23‑4‑1987 and again for 30‑4‑1987 and finally to 7‑5‑1987 when the written reply was ultimately submitted. This speaks volumes as to the conduct of the appellant.

12. I am not prepared to believe that the learned Rent Controller, adjourned the proceedings for the evidence of the petitioner for more than a dozen times of his own motion and there being no request on behalf of the appellant for adjournment. When the case is fixed for specific date for production of evidence of a party and evidence is not present and the matter is adjourned, the adjournment presupposes request on behalf of the concerned party. It passes one's comprehension that the evidence was not present and the appellant did not make request for adjournment, then why the Rent Controller should go on granting adjournment after adjournment. The appellant is trying to capitalize the lack of legal knowledge of the Rent Controller. Most of the orders are vague and not speaking orders. The Rent Controller is under legal obligation to pass speaking orders. This equally applied to the executive authorities performing' quasi‑judicial functions and also to the interim orders passed by them.

13. The appellant reported on 14‑4‑1988 that no evidence is in attendance, therefore, he was given last opportunity to produce the evidence on 5‑5‑1988. Again appellant reported on 9‑6‑1988 that no evidence is in attendance still he was allowed one last opportunity to conclude the evidence. This is sufficient compliance of law and principle of natural justice. I hold that he was afforded more than fair opportunity to lead his evidence. If the evidence was closed then the appellant should blame himself and none else. The parties cannot be allowed to drag the proceedings according their own planning as it will amount to this denial of justice to the other side.

14. Now coming to the second point as to the specification of time and amount to be deposited as diet money for summoning the Municipal Engineer. The arguments is‑clearly misconceived. The time was clearly specified. The interim order reads as under:‑ For the deposit of diet money the appellant was to make an application, which was never submitted. Even otherwise appellant was in know of the amount because earlier he had deposited the money for summoning Municipal Engineer, which was paid to the Municipal Engineer, who appeared on 20‑6‑1988. This controversy in any case, is irrelevant because the learned Rent Controller has taken into consideration the report and so am I doing, therefore, the appellant should feel satisfied.

15. Then comes the merits of the case I first take up the issue No.4 pertaining to personal use. AV.1, AW.2 and AW.6 have appeared to prove this issue. The bare fact that these witnesses were not cross‑examined on the point of personal use is sufficient to accept their statements and answer issue in favour of the respondent. This is not all. The learned counsel for the respondent made an offer that appellant if likes can shift to the present accommodation available with the respondent and hand over the possession of the premises in dispute to her. The appellant did not accept this genuine and generous offer on behalf of the landlady. The offer was generous because in face of the fact that appellant had failed to prove that the need of the respondent is not bona fide and having been adjudged as defaulter still the landlady offered to accommodate him.

16. The learned counsel for the appellant laid much emphasis on the fact that it was proved from the report of the Municipal Engineer that landlady is getting the property vacated on the false pretext. On the other hand, the learned counsel for the respondent has pointed out that if the claim of the respondent as contained in para. 3‑A of the ejectment petition and the evidence of A.Ws 1, 2 and 6 is taken into consideration then this report becomes irrelevant. It is besides the point and does not controvert the claim of the respondent. 1, therefore, refer to the report which reads as under:‑ "I have personally checked the house in the presence of Mst. Qamar‑un‑Nisa and Mr. Iqbal Ahmad. It was found that the house is not in a dilapidated condition. However, it requires minor repairs in the form of white washing/painting, replastering at certain portions, small repair of masonary work and ordinary repair work to some portions of roofs to prevent water leakage during rains. 1t is added here that these repair works as mentioned above can be carried out without any disturbance to the inhabitants. The report is submitted for further necessary action." On the other hand para. 3‑A of the ejectment petition reads as under:‑ The report is clearly vague and inclusive on the face of it. In order to prove this contention the respondent has examined Manzoor Ahmad A.W.1, Rasikh Maqbool A.W.2 and Mst. Saeeda her special attorney appeared as A.W.6. These witnesses were not cross‑examined, as already noted, on the point of personal use. Now when report and the claim of the respondent are considered together, the plea of the learned counsel for the respondent that the report is irrelevant is established. This also ends the controversy as to the refusal to allow the production of Municipal Engineer, who was to appear to prove this report. The learned counsel has referred to the judgment of the Honourable Supreme Court in the case of Sabu Mal. The relevant portion reads as under‑‑ "The contention that the finding on the question of the personal need of the landlord is not sustainable in law has no substance, as all the Courts below have come to the conclusion, after examining the evidence brought on the record, that the landlord was living in a small rented accommodation situated in the premises of a temple, and he bona fide required the house in dispute for his personal residence. If a landlord possesses more than one house in the same urban area, the choice as to the house in which he would like to live himself is surely a matter within his prerogative and discretion, and the law does not give either to the tenant or to the Rent Controller the power to determine where the landlord should personally reside. The law, however, provides an adequate safeguard by stipulating in subsection (4) of section 13 of the Ordinance, that the tenant may be put back in possession if the landlord does not occupy the premises himself after getting them vacated on the ground of personal need. Subsequent litigation in respect of another house owned by the respondent is thus irrelevant to the present dispute." The relevant portion of the judgment in Siddique's case reads as under:‑ "What is after all required by a landlord or his son to prove his good faith or bona fides in regard to personal use. He has to make a statement with regard to factual position as it stands and if the same is disproved in rebuttal in context of the conditions as laid down in clauses (b) and (c) of sub‑para. (ii) of paia. (a) of subsection (3) of section 13 of the Ordinance then it can be safely said that the landlord or his son has not been able to prove his bona fides or good faith." While the relevant portion of the judgment in the case of Hafeezan Coal Co. reads as under:‑ "Additionally, provision of section 13(4) contains salutary check against mala fide action of landlord and reasonably controls the interest of tenant by providing adequate safeguards. In support of this aspect reference may be had to the observations in case (i) Sh. Abdul Aziz and others v. Kh. Hasan Joo and others 1981 SCMR 924, (ii) 1972 Lah. 437."

17. This brings us to default. The appellant had made following deposits in the Court of Rent Controller for the period from November, 1986 to June, 1987: Sr.No Date of deposit Amount Period. (1) 5‑3‑1987 Rs. 900.00 Not specified, (2) 5‑4‑1987 Rs. 300.00 Not specified. (3) 21‑4‑1987 Rs. 600.00 Not specified. (4) 6‑5‑1987 Rs. 300.00 Not specified. (5) 4‑6‑1987 Rs. 300.00 Not specified. I have gone through the receipts neither the period nor the person in whose favour these amounts have been tendered has been specified. Therefore, it was not valid tender in the eye of law. Same cannot be considered as discharge of legal obligation to pay or tender rent. Therefore, the appellant is a defaulter. Now if we presume that the first deposit made on 5‑3‑1987 pertained to months of November, December, 1986 and January, February, 1987. Then the appellant will be a defaulter for at least November and December,

86. The learned Rent Controller in this behalf has held as under:‑ "The respondent could have paid the rent within sixty days after becoming it due. The rent of November, 1986 became due on 1‑12‑1986 which had to be paid on or before 29‑1‑1987 either in favour of the petitioner or in favour of the previous owner. The rent of December, 1986 became due on 1‑1‑1987, which had to be paid on or before 2‑3 1987. But the receipt produced by the respondent indicate that the payments for the months of November and December, 1986 and January, 1987, were made on 5‑3‑1987, meaning thereby that default has been committed." There is nothing wrong with these findings. This brings us to the contention that since the appellant was not served with a legal notice as to the transfer of the ownership, therefore, he cannot be held to be the defaulter. I may point out in the very outset that there is no provision in the Cantonments Rent Restriction Act, 1963 as the service of notice, necessary for default, as is the case under the Punjab Urban Rent Restriction Ordinance, 1959 which was amended and section 13‑A added. Now the question is what is the effect of absence of notice? Can it be a justification for non‑payment or tender of rent? I am of the clear view that in the absence of notice the appellant was under legal obligation to pay or tender rent to the. previous landlady. But it is not a case of the appellant that either he paid or tender rent to her. This conduct clearly disentitled him to any indulgence. This is not all the learned counsel for the respondent has argued that in fact a legal i notice was issued to the appellant through registered post, acknowledgement due but he intentionally and mala fide did not receive the same. The respondent in order to prove the issuance of notices has produced A.W.3, who is a Record Clerk of G.P.O. Multan. This witness has stated that the notice was booked through postal receipt Exh.A.l. Since the addressee was not available at the residential address, therefore, the notice was redirected to his office address. This time Postman reported that the later address is not complete. Muhammad Ali Gillani A.W. 5 appeared to prove notice Exhs.A.5 and stated that the same was received back undelivered. It is the case of the petitioner that he is living in the house in dispute with his family. Therefore, the presumption is that the appellant was aware of the contents of the notice and in order to hoodwink the issue he intentionally got the notice redirected to his office address, which was withheld mala fide. There is presumption in law that the addressee was aware of contents of such notice. This is not all the appellant was served with the notice from the Rent Controller on 23‑2‑1987 and he has clearly endorsed on the reverse of notice that copy has been received. Still he did not act deligently and promptly to tender the rent, which was for the first time was deposited with the Rent Controller on 5‑3‑1987. This cannot be treated as valid tender because by this time at least the appellant had clear notice as to who is his landlady and entitled. to receive the rent. But still the appellant proceeded to deposit the rent without specifying the particulars in whose favour the same was tendered. This is no compliance.

18. The result is that I do not find any force in this appeal. The same is dismissed with costs: However, I allow the appellant one month's time to vacate the premises. A.A./I‑20/L Appeal dismissed.