1988 PLP 2429 (CLC)

Date of hearing: 3rd May, 1988. This appeal is directed against order, dated 13‑3‑1988 passed by learned Civil Judge II‑cum‑Controller, Quetta whereby eviction application has been dismissed for want of proper evidence, and non‑prosecution.

2. Facts briefly stated are, that on 14‑11‑1984 appellant filed an application seeking eviction of respondent from Shop No. 1‑15/8‑9 situated at Club Road, Quetta, on the ground of default for 11 months commencing from January, 1984. Respondent filed written statement on 21‑2‑1985 specifically denying assertions made in the application. It was inter alia pleaded that premises was taken on rent from Messrs Fida Ali and Brothers by Messrs Sardar Muhammad Usman Jogezai and Company, a registered partnership Firm, and not by respondent in his personal capacity. In view of said objection maintainability of proceedings was challenged, thereby denying relationship. Similarly allegations of default were squarely repudiated. However, on 2‑3‑1985, appellant filed application wherein it was explained that factually Sardar Muhammad Usman Khan Jogezai was inducted in suit premises as a juristic persons, whereas other assertion, of written statement were generally denied. Trial Court on the pleadings of parties framed following issues on 2‑3‑1985: (1) Whether there exists relationship of landlord and tenant between the parties. (2) Whether notice under section 13‑A of Ordinance VI of 1959 has been duly served upon the respondent. (3) Whether the respondent has failed to pay rent from January, 1984. (4) Relief. Record indicates that several opportunities for adducing evidence were allowed to appellant and ultimately on 15‑10‑1986 last chance was given. Even thereafter various adjournments were sought for completion of evidence, and finally side of appellant was closed on 9‑7‑1987. Appellant then moved application for recalling aforementioned order, which was however, granted by learned Control?ler vide order, dated 11‑11‑1987. Thus, another final opportunity was provided to appellant for appearing in the Court on 23‑11‑1987 to record his statement. Surprisingly appellant failed to appear in the Court not only on 23‑11‑1987, but also subsequently on 17‑12‑1987, 15‑2‑1988 and 13‑3‑‑1988 when ultimately impugned order rejecting the eviction application was passed.

3. Mr. Mohsin Javaid learned counsel for appellant vehemently urged that reasonable efforts were made by appellant to produce evidence, therefore, responsibility of non‑examination of witnesses cannot be exclusively attributed to him. He strived hard to argue that, on account of certain confusion, last date of hearing was not correctly communicated to appellant, therefore, in all fairness opportunity for his statement ought to have been granted by trial Court. To supplement his submissions reliance has been placed on the observations in following reported cases (i) Wadera Dalel Khan and others v. Province of West Pakistan P L D 1970 Quetta 79, (ii) Muhammad Aslam and others v. Muhammad Yousuf 1980 C L C

467. Mr. W.N. Kohli learned counsel for the respondent emphatically challenging the objection raised, by other side, contended, that several adjournments to procure evidence were allowed to appellant, which ware not availed. He maintained that in spite of special indulgence shown by trial Court, in recalling its earlier order, dated 7‑9‑1986 about closing of evidence, appellant wilfully abstained from appearing in the Court to give his statement. Pointing out persistent conduct, of appellant, it was argued, that he had rendered the Court helpless in raking any progress in the matter, therefore, defence was rightly closed. I have minutely gone through record, and considered arguments advanced by learned counsel for parties. It is pertinent to note that trial Court recalling its earlier order for closing appellant's side, vide order, dated 11‑11‑1987 provided still another opportunity for recording his statement. It was expressly directed that appellant should appear in Court on 23‑11‑1987 for said purpose, but there is absolutely no explanation about absence of appellant on 23‑11‑1987 or thereafter. It may be seen that impugned order was passed when counsel for appellant was present. Plea concerning confusion about date was never agitated at the time of hearing. Therefore, contention regarding confusion of date raised in memo. of appeal or during arguments is apparently an afterthought, hence cannot be permitted at this stage. 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 indefinitely 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 and 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 standards 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 Aslam and others v. Muhammad Yousuf 1980 C L C 467, N L R 1982 Civil 655, Writ Petition No. 2786 of 1981 (Lahore), Zafar Ahmed v. Begum Amir Ahmed Khan and others P L D 1982 Lah. 785 . It was next contended that trial Court even after closing side was bound to consider statement of P.W. Hamid Latif Rana, already available on record. There is no cavil to the legal position in this behalf. Mr. W.N. Kohli however, answering said objection referred to the observation in impugned judgment whereby it was held that evidence on record was not sufficient to support claim in eviction application. No doubt normally trial Court should have given reasons, by making some comments on the available evidence. In any case this Court in the exercise of appellate jurisdiction can appropriately consider available record, which is alleged to have been ignored by Trial Court. Therefore, with the assistance of learned counsel for parties, statement of A.W. Hamid Latif Rana was ,scrutinized and its' evidentiary value discussed. According to his version notice under section 13‑A was given to respondent who in his personal capacity, was tenant in the premises. During cross‑examination the witness unambiguously admitted rent receipts pertaining to premises in question issued by predecessor of appellant, which are undisputedly in favour of Messrs Sardar Usman Khan Jogezai and Company. Oral version of the witnesses is quite contradictory to documentary 'evidence. Rent receipts admittedly issued by landlord suggest that respondent was not tenant, in his personal capacity. Notice under section 13‑A sent to respondent in his personal capacity as such is not relevant. Accordingly I am persuaded to confirm the observation of Court that A . W. Hamid Latif Rana does not support claim put up in the eviction application. Thus, for the foregoing reasons, there is no substance in the appeal which is accordingly directed to be dismissed. Parties are left to bear their own costs A. A./313/Q???????????????????????????????????????????????????????????????? Appeal dismissed