1992 PLP 1084 (CLC)

‑‑‑‑S. 15‑‑‑In a case involving an enquiry or trial, parties should be heard personally at the stage of summing up of proceedings‑‑‑Said rule need not be' inflexible and parties, could either expressly or impliedly, consent that in place of personal hearing, written submissions be made.‑‑[Administration of Justice]. Ali Muhammad v. Rent Controller and Chief Commissioner, Karachi PLD 1957 Kar. 204 and Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak PLD 1959 SC 45 ref. Zafar Hadi Shah for Appellant. Mazhar Imam for Respondent. Date of hearing: 7th October, 1991. During the course of arguments from the side of the appellant it was pointed out by Mr. Zafar Hadi Shah that the then incumbent of the office of the learned IInd Senior Civil Judge and Controller, Karachi (East) on 29‑1‑1990, in the presence of learned counsel from both the sides and without objection from either, directed that written arguments be filed in the case. On the next date of hearing i.e. 10‑2‑1990 the learned counsel for the respondent/landlady submitted a statement that she proposed to give up the ground of default in the rent case., Simultaneously written arguments were submitted from the side of the respondent/landlady and the case was adjourned to 18‑2‑1990 for the same purpose namely, submission of written arguments from the side of the appellant/tenant. On 18‑2‑1990, however, the learned Controller, who had heard the rent case and had required the parties to submit written arguments, was succeeded by the present Controller viz. Miss Sofia Lateef. It is claimed by Mr. Zafar Hadi Shah that on 18‑2‑1990 merely written arguments from the side of the tenant were submitted and no hearing whatever took place, the case being adjourned thereupon to 5‑3‑1990. Mr. Mazhar Imam, from the other side, urges that both Advocates were present before the presiding officer and besides submission of written arguments learned counsel were heard. I have gone through the order sheet dated 18‑2‑1990 and find that while presence of counsel is mentioned it is nowhere recorded that any personal hearing took place. In this state of the record, it is not possible to go by anything which is stated at the Bar, being conflicting in nature. On the record, therefore, it is clear that no hearing took place before the learned Controller and Senior Civil Judge, Karachi (East) on 18‑2‑1990 and that she on such date posted the case for orders on 5‑3‑1990 and such merely on the basis of written arguments in a case, which was not heard by her at all. Speaking generally, in a case involving an inquiry or trial, parties should be heard personally at the stage of summing up of the proceedings. The rule need not be inflexible and they may, either expressly or impliedly, consent that in place of personal hearing written submissions be made. However, the last is a conscious act. The direction, accepted on 29‑1‑1990 by the learned counsel for the parties to place written arguments, was in the background of the fact that the then Controller had personally heard the case and written arguments before such an officer could, in the circumstances, be adequate. However, such an order, without mutual consent of the parties, could not be continued and could not displace due hearing before the successor Controller, who had barely glanced at the file. In' that there was denial of hearing the impugned order would be bad, as observed in Ali Muhammad v. Rent Controller and Chief Commissioner, Karachi PLD 1957 Kar. 204 and Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak PLD 1959 SC

45. In this view of the matter, this appeal has to be accepted and the impugned order is liable to be set aside with a direction that the case, on remand, be placed by learned District Judge, Karachi (East) before a Controller other than the one, who passed the impugned order. R & P be returned forthwith. The learned Controller, who may come to be seized of the case, shall decide the dispute, as far as possible, within a period of four (4 ) months after appearance of parties before him. Appeal allowed. H.B.T./F‑178/K Appeal accepted.