1989 PLP 670 (CLC)

Appellant present in person. Feroze Khan for Respondent. Date of hearing: 26th October, 1988. This appeal was taken up alongwith FRA No. 230 of 1986, pending between, the same parties. Mr. Abdul Aziz Shaikh, Advocate is appellant's counsel for this appeal; whereas in the other above‑noted appeal. Mr. Ali Ahmad Tariq, Advocate is representing the appellant above named. Mr. Abdul Aziz Sheikh did not appear when both these appeals were called out. Hence Mr. Ali Ahmad Tariq, Advocate prayed for an adjournment as in his opinion it was necessary for proper dispensation of justice if both the appeals were heard together. However, finding that this appeal calls in question, the order of appellant's ejectment passed by the learned Rent Controller on the ground of default in payment of rent for nine months of the year 1985, while the other appeal (FRA 230 of 1986) was from an order of appellant's ejectment on account of default in payment of rent for 3 months of the year 1984, I did not feel inclined to agree with the view of Mr. Ali Ahmad Tariq, Advocate and heard the said appeal separately with this appeal. However, when this appeal was taken up on its turn, Mr. Abdul Aziz Shaikh, Advocate was again absent. The appellant was, however, present who orally requested for an adjournment stating that he had met his counsel Mr. Abdul Aziz Sheikh last evening when he was not well and had asked him to obtain an adjournment in this appeal. The appellant could not, however satisfy me as to what prevented Mr. Abdul Aziz Skeikh, Advocate in giving him an application for adjournment under his signature on the ground of his illness, if he was really ill and unable to attend the Court today. however, did not find any sufficient cause to adjourn the hearing of this appeal. A reference to order sheet entries of this appeal further revealed that on 21st September, 1988 when it was called out, Mr. Abdul Aziz Shaikh was in attendance but he got it adjourned to a date in office. The order sheet entry of 21‑9‑1988 reads as under:‑ "Mr. Aziz states that he has sent a registered notice to his client but the same has returned back unserved. It appears that he was not available, therefore, requests one adjournment more. By consent the matter is adjourned to a date in office". It was then fixed for hearing on 12th October, 1988 when it was again got adjourned at the instance of the appellant. When I insisted upon the appellant to proceed with the case and make his submissions. Mr. Ali Ahmad Tariq, Advocate holding brief for Mr. A. Aziz Shaikh prayed for a short adjournment, without appreciating that he could make this request only when he was so requested by Mr. Abdul Aziz Shaikh Advocate. On my enquiry, he, however, can did stated that Mr. Abdul Aziz Shaikh had not made any such request to him. Hence; I did not entertain his request. Thereupon, the appellant again prayed for a short adjournment on the plea that he would engage some other advocate to represent him in this case. In the face of the delaying tactics adopted by the appellant after obtaining the order of stay of the execution of the impugned order, in total disregard of the order for an early hearing of this appeal passed on 13‑12‑1987. I flatly refused to accommodate him as it would have tantamount to do injustice to the respondent. I have, therefore, heard Mr. Feroze Khan, learned counsel for the respondent and, with his assistance, I have perused the evidence of parties and the impugned order in the presence of the appellant. The relevant facts are these. The respondent filed an application for ejectment against the appellant on 3‑5‑1986, on the solitary ground of default in payment of rent for the months of January, April, June and September, 1985 to December, 1985. The appellant is admittedly the tenant of the respondent in respect of Shops Nos.25, 26 and 27 of the building known as 'Press Chambers', situated at I.1. Chundrigar Road, Karachi. The consolidated monthly rent of all the three tenements is Rs.400 only. The appellant filed written statement in denial of the respondent's claim. fie also raised preliminary objections that one application in respect of the three tenements was not maintainable and that it was hit by the principle of res judicata as another case bearing No.R.C.3737/84, on the ground of default had been already filed before the VIIlth Senior Civil Judge and Rent Controller, Karachi. The said application was finally disposed of by the learned Rent Controller on 7‑4‑1986, out of which the appeal bearing FRA No.236 of 1986 referred to above, has been filed. With regard to default in payment of rent for the months in question, it was pleaded by the appellant that the respondent had declined to accept the rent on the ground that he had already filed an application under section 8 of the Ordinance for fixation of rent against the appellant registered as Rent Case No.2644 of 1984. Upon respondent's total refusal to accept the rent since August, 1984, the appellant sent the rent through money order but the respondent refused it. The appellant, therefore, started depositing the rent in Misc. Rent Case No‑140 of 1985 and hence nothing was due from him. Mr. Feroze Khan, learned counsel for respondent drew my attention to Ex.15 on the basis of. which, coupled with the copies of the Deposit Receipts of rent in the National Bank of Pakistan, City Court Branch, (Exhs.6 to 14) with reference to Misc. Rent Case No.140 of 1985 in the Court of Controller No.XIX Karachi has held, and in my opinion rightly too. that the appellant had been depositing the rent in Court but not in time. It was for the appellant to prove that the rent through the aforesaid Bank Deposit Receipts had beer deposited in respect of the abovementioned months for which he, was stated to have committed default, in time and that there was no default committed by him as alleged. He could not; however, do so inasmuch as having denied that the rents for the months in question had been much beyond time, he expressed his inability‑ to tell the period of rent shown in the rent receipts (Exhs.6 to 14). On the contrary, the respondent in para. 6 of his affidavit‑in‑evidence had categorically deposed that the rent in Misc. Rent Case No.140 of1985 had been deposited as under:‑ (i)Rent of January, 1985 deposited on 2‑5‑1985. (ii)Rent of April, 1985 deposited on 22‑7‑1985. (iii)Rent from June, 1985 to September, 1985 deposited on 2‑1‑1986. (iv)Rent for October, 1985 to December, 1985 deposited on 19‑3‑1986. (v)No rent is deposited after December, 1985." He was not cross‑examined on this aspect and hence this issue of default could be decided on the basis of the respondent's above‑quoted un-controverted or un-assailed statement. The preliminary objections raised in the written statement were also of no substance inasmuch as it has been admitted by the appellant's witness in his cross‑examination that "it is correct that all the three rooms tenements were taken on rent at a time. The rent of all they, three tenements is Rs.400 per month". Besides, the appellant had himself also filed only one application Misc. Rent Case No. 140 of 19851 A for depositing the rent of all the three tenements. ‑The plea of res Judicata is equally misconceived and untenable for the obvious reason that the earlier ejectment application had been filed in respect of default in payment of rent for certain months of the year 1984 and not in respect of the months involved in this appeal. Under the aforesaid facts and circumstances 1 am satisfied that the learned Rent Controller has passed a proper and legal order to which no valid exception can be taken. In the result, the appeal fails and is hereby dismissed. The parties are, however, left to bear their own costs. Appeal dismissed. M.B.A.IB‑97/K