2002 PLP 1527 (CLC)

TALAAT QAYUM QURESHI, J.‑‑‑ The respondent No. 1 filed an application for ejection of petitioner from the disputed shop specifically mentioned in the heading of the ejection petition. The petitioner submitted replication in which he denied the relationship of landlord and tenant. The Rent‑ Controller framed issue; whether the relationship between the landlord and tenant exists between the parties. The parties were directed to produce evidence in support of their respective claims. Respondent No. 1 in order to substantiate its claim examined Altaf Hussain Ex‑Secretary of Prince Amin Colony who was examined as P. W.1. Roshan Ali was examined as P.W.2. In rebuttal the petitioner who was respondent No. 1 in the ejection petition examined Fazal‑e‑Subhan, Assistant Divisional Engineer Phones, External City, Peshawar who was examined as A.W.1, Muhammad Younas Sales Representative of Sui Northern Gas Pipe Lines, Peshawar was examined as A. W.2 and Abid Khan, Water Moharrir of Municipal Corporation, Peshawar was examined as A.W.3. Since the remaining evidence of the petitioner was not in attendance despite various opportunities provided to him, the learned Rent Controller passed ejectment order on 15‑3‑2001. Being not satisfied with the said order, the petitioner filed Appeal No.21 of 2001 which too was dismissed vide the judgment/order, dated 14‑3‑2000 by the learned District Judge, Peshawar. Through writ petition in hand, the petitioner has called in question the judgments/orders passed by the Courts below.

2. We have heard Mr. Afridi Khan, Advocate the learned counsel representing the petitioner at length and carefully examined the documents annexed with the petition.

3. The main argument of the learned counsel for the petitioner was that there is no provisions in the Rent Restriction Ordinance, 1959 to strike off the defence of the petitioner for non‑furnishing of the affidavits and the learned Rent Controller had no jurisdiction to condemn the petitioner unheard and to strike off the defence of the petitioner. This argument of the learned counsel for the petitioner has no force.

4. The proceedings before the Rent Controller are not in stricto sensu judicial that evidence should be recorded in the same manner as in a civil suit. The learned Rent Controller being persona designate is required to satisfy himself about the grounds in the ejection petition and pass the orders in consonance with justice. The principle object behind all legal formalities is to safeguard the paramount interest of justice. It cannot be denied that legal precepts were devised with a view to impart certainity, consistency and uniformity to the administration of justice to secure the same against arbitrariness, error of individual judgment and mala fides. Since the finalization of rent cases took years which tantamount to frustrate the justice, therefore, in order to curtail the delay, the august Supreme Court of Pakistan in Barkat Ali v. Muhammad Ehsan and others 2000 SCMR 556 while giving guidelines to the Courts, laid down following procedure to be followed in rent cases with immediate effect: ‑‑ "(1) Affidavits of not more than two witnesses in support of the ejectment application shall be filed in the Court in addition to the affidavit of the petitioner himself in support of the contents of the ejectment petition. (2) While replying to the ejectment application the respondent shall be similarly required to submit his own affidavit and affidavit of two other witnesses in support of his affidavit on the date fixed in the notice served upon him. (3) The parties shall be bound to produce their witnesses for purpose of their respective cross‑examination on the day fixed by the Court. (4) A party obtaining the affidavits of the witnesses in support of his petition/reply would be bound to produce them in the Court for cross‑examination and in case of its failure to do so their evidence shall be excluded from consideration. (5) Appeals against the interim order of the Rent Controller and resort to Constitutional jurisdiction against orders at intermediate stages arising out of the ejectment proceedings, should be discouraged. (6) The Court should take serious view of the situation when witnesses for cross‑examination in support of their affidavits deliberately avoid/evade appearance in Court. (7) Adjournment of ejectment petition should not be allowed except under unavoidable circumstances on an application moved by a party supported by affidavit. In such cases also adjournment should not be made for a period exceeding three days. Following the above procedure in ejectment matters appears to be necessary to achieve the goal of expeditious disposal of a case with a period of three months particularly in respect of residential tenements having regard to the decisions unanimously taken in the Chief Justices Committee Meeting held on 26‑2‑2000. (8) There is need for organization and methodical arrangement of supervision and control by the High Courts over the functioning of the subordinate Courts which will be in accord with the B decisions reached at the Chief Justices' Committee Meeting held on 26‑2‑2000. The District and Sessions Judges of all Provinces would be responsible for the integrity and expeditious disposal of the cases and working of the subordinate .Courts within their respective jurisdiction.

5. This Court and the Courts below are bound to follow the guidelines set forth by the august Supreme Court of Pakistan. In case in hand, vide order, dated 14‑7‑1997 the petitioner was directed to produce his evidence but despite availing more than forty adjournments the petitioner failed to produce complete evidence. It is worth‑mentioning, vide the order, dated 31‑1‑2001 the learned Rent Controller had directed the petitioner to furnish his affidavit and affidavits of two supporting witnesses till 15‑3‑2001. The petitioner not only failed to furnish the requisite affidavits but also failed to produce evidence. He even kept silent when the learned Rent Controller on 15‑3‑2001 directed him to record his statement and eventually declined to record his statement. The non‑compliance of the order of the learned Rent Controller in furnishing the requisite affidavits and the very conduct of the petitioner forced the learned Rent Controller to pass the ejectment orders in a case which was instituted on 11‑11‑1992 i.e. after 9 years of its institution. The learned Rent Controller has properly appreciated the evidence available on record and the impugned judgment is in line with the judgment of august Supreme Court of Pakistan cited above. The learned District Judge has also rightly concurred with the findings of the learned Rent Controller.

6. This Court does not sit as the Court of appeal and cannot decide whether evidence sufficed for conclusion arrived and is not at all obliged to go into the merits of the case de novo reappraise and assess evidence on question of existence of relationship of landlord and tenant between the parties. Wisdom in this respect has been sought from Messrs Muhammadia Medical Hall, Khan Arm Dealers through Khurshid Alam v. Mahmood‑ul‑Hassan and 3 others NLR 1982 SO

23. We while exercising our Constitutional jurisdiction cannot disturb the concurrent findings of facts recorded by the Courts below on reappraisal of evidence unless it is shown that the Courts below either misread the evidence or perversely appreciated the evidence. Merely because of fresh appraisal of the evidence this Court would reach a different conclusion is no ground to disturb the concurrent findings of facts recorded by the Courts below. We have even otherwise, not been able to find any illegality or perversity in the impugned judgments of the Courts below warranting interference in exercise of our Constitutional jurisdiction. The writ petition is, therefore, dismissed in limine. Q.M.H./M.A.K./508/P Petition dismissed.