P L D 1984 Quetta 99 (PLP)

This first appeal under section 15 of the Baluchistan Urban Rent Restric tion Ordinance (Ordinance VI of 1959) is directed against the order of the learned Controller, Quetta passed on 10‑8‑1983 whereby the eviction application filed by Mst. Rabia Begum wife of Haji Rustam Shah has been dismissed. The appellant filed an eviction application against the respondent on 31‑12‑1968 on the grounds of (a) damage caused by the respondent to the leased premises, and (b) bona fide requirement for re‑construction. It has been observed by the learned Controller that "the applicant has failed to produce the evidence this shows that applicant has no interest with the application as such I dismiss the application with costs for non‑prosecution and interest".

2. The learned counsel appearing for the landlady/appellant has com plained before me that the observation of the Controller is not only unjustifi ed but is contrary to the facts on record and in that connection has drawn my attention to the proceedings recorded in the case and has pointed out that on some occasions the witnesses were in attendance but the case was adjourned and the witnesses were not examined. The proceedings recorded on i0‑6‑1980 and 27‑10‑1980 do support the contention of the learned counsel. It has been further contended by the counsel that applications for summoning the witnesses were made whereupon the diet money and process fee was deposited on the order of the learned Controller but no summon was ever issued by the office as such the appellant has been condemned not for her fault but due to the mistake of the Court's own officers. On 16‑3‑19,0 an application was made by the applicant that she had deposited the diet money and expenses for two witnesses namely Muhammad Nabi and Abdul Baqi and the relevant entry to that effect was there at No. 85 Book No. 49 on 14‑6‑1979 and the receipt issued by the Office in that behalf was referred to but the application contain ing the particulars of the witnesses was not found on the file. The learned Rent Controller did not care to ascertain the facts from his office and even penalized the appellant with costs on 10‑12‑1979. One witness was present in Court on 10‑6‑1980 but be was not examined and the case was adjourned. Again on 16‑12‑1982 an application was made on behalf of the landlady that one of the witnesses (Abdul Baqi) has shifted to Karachi and there was no expectation that he would return in the near future and in these circumstances it was prayed that another witness named in that application be permitted to be produced whereupon it was ordered by the Controller that "Notice to the opposite‑party for the date already fixed be issued". This application remained undisposed and no witness was ever summoned and the case was adjourned. On 26‑5x1983 the case could not be taken up for want of time. On this day an application was again made and it was prayed that one of the witnesses cited earlier namely Muhammad Anwar Murgiwala had died and in his place one Kbadim Hussain was desired to be produced. The learned Controller recorded the following orders thereon :‑ NOTIC E SHOULD BE FORWARDED TO THE RESPONDENT. A COPY OF APPLICATION IS ATTACHED TALBANA HAS ALSO BEEN ATTACHED. This application too remained undisposed.

3. I have minutely perused the record of the case and was astonished to find that the learned Controller did not care to see the record of the case to ascertain whether his orders have been complied with by the office. The basic mistake which led to the trouble was the mistake of the Court's own office who did not issue any summon to any witness and this mistake has led to the abuse of the process of the Court and has prejudiced the appellant.

4. The learned counsel appearing for the respondents made a faint attempt to justify the order of the Controller and submitted that it was the landlady who was to bring her witnesses herself. I have gone through the order‑sheets recorded in this behalf and found that the case has been adjourned by the Court on some occasions even when the witness was present. The observations of the learned Controller in the face of these facts on record are simply unjustified, It was the obligation of the learned Rent Controller to see the record himself; in order to ascertain if his orders on the various applications made on behalf of the appellant for summoning the witnesses through Court for which she had furnished the process fee and paid diet money were summoned have been complied with. The Presiding Officer of a Court of law entrusted with the settlement of dispute is under an obligation to do justice and he is not C absolved of that obligation by inadvertent admission of the counsel eve regarding a matter which is not borne on record and it is the bounden duty of the Court to look into the record himself. If this duty is kept in vie unnecessary litigation resulting in unnecessary loss of time and money of the parties might have been avoided. The well‑known and recognized principal that an act of Court shall prejudice no man is founded upon justice and goo sense and affords a safe and certain guide for the administration of law. The perusal of the record has left me in no doubt that this principle has not been adhered to by the learned Controller and his omission to consult the record bad led to the perpetuation of a mistake which cannot be attributed to the appellant and she has been deprived of her legitimate right to establish her case and for these reason the order of the Controller deserves to be set aside. The appeal is accordingly allowed and the order impugned is set aside and the case remitted to the Controller who would decide the case in the light of the observation made above. In the circumstances of the case the parties are left to bear their own costs. M. Y. H. Appeal accepted.