1993 PLP 2261 (CLC)

The counsel submitted that notwithstanding the various objections, the Controller not only directed the consolidation of the cases by his order dated i1‑4‑1992 but also deprived the appellants of their right to cross‑examine the witness. He pointed out that on 2‑4‑1992 a statement was filed on behalf of the respondent withdrawing the ground of default in payment of rent. This statement too was disposed of by the said order dated 11‑4‑1992, the last para. of which reads as follows:‑‑ "I therefore exercising the inherent powers and relying on 1979 SCMR 338, allow the application of applicant for consolidation, the cross made on applicant to be brought in other rent cases except three rent cases in which no affidavit or application has been filed by the applicant. The cross of applicant in RA No. 130/91 be typed in same verbatim and be placed in all the rent cases except three rent applications as stated by me, this the I order the consolidation of the rent cases and treat RA. No. 130/91 as leading rent case. Provided the applicant closes his side too and the opponent/opponents to file affidavit in evidence on 18‑4‑1992. As such I allow application for consolidation and statement of withdrawing the ground of default simultaneously." The learned counsel submitted that in these circumstances the consolidation was not justified. In any case, he argued, that the cross‑examination in Rent Case No.130/91 was conducted strictly for purposes of that case, and therefore the Rent Controller seriously erred in ordering that the said cross‑examination be typed verbatim and placed in the file of all the cases. He stated that had the consolidation order been made earlier he would have covered in the cross- examination the other cases too, but, when the cross‑examination had already concluded, before the consolidation, the direction that the earlier cross -examination be placed in other cases clearly amounted to depriving the concerned appellants of their valuable right of cross‑examination, in contravention of the principles of natural justice. In support of his contention he placed reliance on the cases of Malik Aman v. Haji Muhammad Tufail (PLD 1976 Lahore 1446), Shaikh Abdul Hamid v. Muhammad Siddique (PLD 1981 Lahore 42), Shabbir and 2 others v. Mst. Ghulam Fatima (1987 CLC 1407). In all these cases, the procedure of recording evidence in one case and placing its copy in other cases was disapproved. With regard to the third objection the learned counsel's submission was that he was required to submit separate affidavit in evidence in all the fifteen cases but the time allowed to him was not sufficient for the purpose. According to him the other reason for the default was the delay in the supply of copy of the consolidation order. The last objection was that under section 15(2)(vi) it was incumbent on the respondent/landlord to file the requisite sanctioned plan for the construction of the new building alongwith the eviction application and this admittedly having not been done the appellants could not be evicted on that ground. It was pointed out that, in the present case, the‑ approved plan was filed at a later stage and was notified alongwith the eviction application. On this point the counsel sought support from the cases of Muhammad Usman v. Wali Muhammad and 4 others (1985 CLC 1669), Umar Daraz v. Mst. Fatima and 13 others (1986 CLC 103). While the former case appears to support the appellants' contention, the latter case, however is distinguishable for in that case it seems that no proper approved plan had at all been filed. Mr. Muhammad Sharif, Advocate, alongwith Mr. Mumtaz A.Shaikh, Advocate, appearing for the respondent in all these appeals have vehemently opposed the admission of these appeals. On the first objection, it was pointed out that although the three cases were excluded in the consolidation order yet soon thereafter by consent of the parties all these were agreed to be dealt with alongwith the other cases as similar points of law and facts were involved in all the cases and for this reason the objection being raised now by the appellants was never raised earlier at any stage. In reply to the second objection, the learned counsel stated that after the withdrawal of the ground of default in payment of rent the only ground that remained to be examined in all the rent cases was the ground of re‑construction of building and that being so the order for consolidation of all these cases was just ‑ and proper. He stated that the exhaustive cross examination conducted in Rent Case No. 130/91 covered all possible points, as such the insistence of the appellants for separate cross‑examination in all the cases was merely to prolong the proceedings. His contention was that even if the appellants had been allowed cross‑examination m other cases there was nothing new that could be brought out in view of the fact that the eviction was sought on the sole ground of reconstruction. He therefore, submitted that the mere fact that the cross‑examination had been concluded in Rent Case No. 130/91 before the consolidation of all the cases caused no prejudice to the appellants and therefore there was no contravention of the principles of natural justice. He submitted that even if there was some irregularity in‑the procedure that was of no consequence for no prejudice was caused to the appellants. As regards the shutting of the appellants' evidence the counsel stated that the appellants were given more than one opportunity to file their affidavits‑in‑evidence but they failed to do so. Before the closing of their side on 2‑5‑1992 the Rent Controller had specifically given them a last chance on 25‑4‑1992. As such the order of the Rent Controller was proper. On the last objection the respondent's counsel's submission was that it was not necessary for purposes of section 15(2)(vi) to file a plan for reconstruction alongwith the eviction application itself but it was sufficient compliance of that provision if such a plan was brought on record at a subsequent date. For this proposition reliance was placed on the case of Qamar Din v Mst. Taleh Begum reported in 1980 SCMR 608.‑ In this case the Hon'ble Supreme Court while considering section 13 (2)(vi) of the West Pakistan Urban Rent Restriction Ordinance, 1959, which provision is almost similar to the provision of section 15 (2)(vi) of the Sindh Rented Premises Ordinance, 1979, held that the requisite sanction for the reconstruction need not be filed alongwith the ejectment application but such sanction may be produced at a later stage. Finally, the respondent's counsel submitted that F.R.A.No. 294/92 in which too the impugned order was challenged was dismissed in limine by a learned Single Judge of this Court by his order dated 25‑5‑1992. Against that order a petition for leave to appeal (No. 203‑K/92) was filed m the Hon'ble Supreme Court which too was dismissed by their Lordships. He stated that the effect of the Supreme Court order was that the said order dated 25‑5‑1992 stood approved by the Supreme Court. Accordingly, it was contended that the points raised in the present appeals merit no consideration for these had been raised in the said F.RA. No. 294 of 1992 and repelled firmly by this Court and finally by the Supreme Court. In reply to the last submission of the respondent's counsel, Mr. Khalid Latif submitted that as the order dated 25‑5‑1992 in the said F.RA. 294/92 as also the Supreme Court order was obtained by fraud, I was not bound by the same. He further submitted that in these proceedings I should go into the question of fraud allegedly committed by another party in the earlier appeal. In support of his contention he placed reliance on the cases reported in PLD 1975 SC 331, 1988 CLC 2037, 1991 SCMR 520, 1979 CLC 831, PLD 1981 SC 545, PLD 1976 Karachi 1110, PLD 1990 SC 693, PLD 1982 SC 146, PLD 1975 Peshawar 212, PLD 1975 Lahore 780 and PLD 1974 Lahore 65. in answer to my query, however, the learned counsel failed to point out any spec instance of fraud and all that he could say was that the said F,RA. was not filed by the proper person, but again he was unable to produce the proper person to substantiate the allegation. In these circumstances I see no force in the contention that the said orders were obtained by misrepresentation or fraud. No useful purpose will, therefore, be served in discussing the authorities cited above. He then submitted that, in any case, as the second objection in these appeals to the effect that the appellants were deprived of further cross‑examination after the consolidation of the cases, has not been expressly dealt with in the said Supreme Court decision, I could give a finding thereon. It is true, as pointed out by Mr. Khalid Latif, that in the Supreme Court judgment this question has not specifically been decided but the fact remains that in the order dated 25‑5‑1992 of the learned Single Judge, approved by the Supreme Court, this point has been expressly determined and further the point had also been taken in the petition for leave. As such, by implication, this objection stood rejected by Supreme Court judgment and it would not be open for me to deviate from the finding of the Hon'ble Supreme Court. In so far as appellants' first objection is concerned, it is without substance. Respondent's counsel's contention that soon after Controller's order dated 11‑4‑1992, directing the consolidation, the three cases left out under the said order were, by consent of the parties, dealt alongwith the other cases, fords support from the diary sheet. The appellants' counsel failed to point out anything in the record of these cases to show that he had taken any such objection earlier. Even in t1fe memo. of appeal no such ground has been taken. As to the second objection, the admitted position is that the landlord in all these cases is common, the building is common and after the withdrawal of the ground of default in the payment of rent the only common ground left in all the cases was that the landlord required the premises for reconstruction of new building. This being so the consolidation of the cases did not suffer from any illegality. However, the propriety of Controller's action of depriving the appellants of the chance of further cross‑examination, after the consolidation of the cases, is questionable, for, the earlier cross‑examination, admittedly, related only to one case and, therefore, in all fairness, after the consolidation of the cases the appellants deserved an opportunity to undertake cross -examination of the respondent's witness to cover the other cases too. This could have been done either by allowing further cross‑examination in the same case in which cross‑examination had already been conducted or by permitting cross‑examination in one of the other cases. On this point the contention of the respondent's counsel was that, even if this was an irregularity, it was, in the circumstances of the present case, of no significance as it did not cause any prejudice to the appellants, and as such there was no violation of the principles of natural justice. I would, however, not examine this issue any further for I propose to dispose of these appeals on the basis of the Supreme Court's judgment dated 1‑6‑1992. The grievance that, the appellants were not allowed to submit the affidavits in evidence, has no merit, as the appellants had been allowed several opportunities for the purpose. Even otherwise, such objection has been repelled in the aforesaid Supreme Court's judgment. The last objection is also not well founded for this question has already been settled in 1980 SCMR 608 mentioned earlier and also in the above‑referred Supreme Court judgment. In the result, all these appeals are dismissed in limine. However, the appellants are allowed three months' time from today to hand over vacant possession of the premises in their respective occupation to the respondent subject to their continuing to pay the monthly rent regularly to the landlord during this period. The ad interim order granted earlier is vacated H.B.T./K‑306/K Appeal dismissed.