1980 PLP 2011 (CLC)

Khair Din and two others had filed application under section 13 of the West Pakistan Urban Rent Restriction Ordinance of 1959 against appellant Qamaruz Zairian before the Court of Senior Civil Judge/Rent Controller Quetta on 19th of April, 1975. Wherein they requested for his ejectment from the disputed house on ground of non-payment of rent. The appellant contested the petition- He filed objections oil 26th of May, 1975. In his objection he averred that he had not defaulted in payment of any rent. Besides fie raised immaterial pleas in defence. On the pleadings of the parties the Rent Controller framed two issues:

(1) Whether the respondent has committed default in payment of rent? (2) Relief. Land lord respondents in support of their stand examined Mohammad Hanif and Abdul Malid. The appellant failed to produce any evidence in rebuttal. Consequently, on 2nd March, 1977, the learned Rent Controller ordered immediate ejectment of the appellant from the premises. In the order the learned Rent Controller observed that the appellant had not taken any interest to produce his evidence in defence in Spite of chances given to him on dates 12th of July, 1976, 4th of September, 1976 and 21st of October, 1976. On his such failure to do so, the Rent Controller observed that tire appellant had no evidence as defence. In operating part of the judgment the Rent Controller held :

"I am satisfied by the applicant, evidence and front the attitude of the respondent, so pass the eviction order with the direction to respondent to hand over the vacant possession of the premises with immediate effect.

2. Being aggrieved against such order the appellant filed a first appeal' before Court of District Judge Quetta. "1 he District Judge Quetta dis posed of his appeal on 14th June, 1977. The District Judge confirmed the decision of the Rent Controller Quetta. In his order the District Judge has observed :- "I have heard the learned counsel for the patsies in this appeal. I have perused the R and Ps of the case .."I have minutely perused the order of Rent Controller." Besides, the learned District Judge reproduced the abovesaid wording of the Rent Controller Quetta. Eventually he held that the order of the learned Civil Judge//Rent Controller Quetta was justified one. The above said concurrent decisions of the two lower Courts have given cause of action to the appellant to bring this second appeal before this Court.

3. At the outset Mr. Yousfzai contended that the appellant had failed to '"deposit the arrears of rent pending the disposal of' appeal as such had flagrantly violated the direction of the Rent Controller regarding depositing of rent therefore, had made himself liable for action under subsection (6) of section 13 of the Ordinance. He argued that his defence as such should be struk off and he should not be heard in this appeal also. Mr. Ehsanul Haque the learned counsel for the appellant refuted the contention of Mr. Yousufzai. He relied on the citation reported in case of Abdul Ghafoor v. Ahmad Runhi (PLD1969SC424). The proposition laid down in tile authority is

"A close scrutiny of the above provisions clearly indicates that an order passed under section 13 (6) of the Ordinance remains effective only upto the time of the final determination of the proceedings before the Controller. The order contemplated by the first part of section 13 (6) is of an interim or interlocutory nature and cannot be said to remain effective after the final determination of the proceedings in which it is made. It is worthy of note that the penalties provided under subsection (6) of section 13 for non-compliance of an order passed thereunder are that if the tenant is the petitioner his application is dismissed and if he is the respondent then his defence is struck off' and in either case the landlord is put into possession of the property without taking any further proceedings in the case. Such an order in my view can only be passed by the original Court." I have no reasons to disagree with the view expressed by their Lord ships. Thus I am of clear view that in obsence of specific order passed by this Court under subsection (6) of section 13 in case of depositing of rent, no order of ejectment could be passed by this Court on basis of the order of the Rent Controller made under section 13 (6) of the Ordinance. I most respectfully agree with the proposition laid by their Lordships in the above authority. The contention of Mr. Yousufzai therefore hiss no substance. It is thus repelled accordingly.

4. Coming to the other aspects of the case, the R and P of the case is before me. I have in detail perused the diaries of the Rent Controller Quetta. The diary of the 1st October, 1976 indicates that witnesses 7Wuhammad Jafhar, Salamat Ali and Soofi Rahim Bux in spite of service, on them had not attended the Court. Witnesses Muhammad Jaffar and Soofi failed to inform the Court, the reason of being absent. Witness Salamat Ali informed the Court that because of his illness lie would not be in position to attend the Court. His absence as such was condoned. The Court directed that except witness Salamat Ali bailable warrants in the sum of Rs. 500 be issued to the other two witnesses. The diary further shows that the witnesses Aurangzaib and Akbar Shah were not served. The appellant was directed to furnish their fresh addresses. The diary of 7th December, 1976 shows that the counsel were present but their evidence was Pot ready. The matter was then adjourned to 22nd March, 1977 for the said purpose as that on 22nd March, 1977. The diary of 22nd March, 1977 shows that the counsel were present. Process fee was not paid by the appellant. The learned counsel vehemently attacked the orders of the lower Courts. He vehemently challenged the wording of the diary maintained by the Rent Controller. The learned counsel for the appellant contended that the diaries of the case did `not establish that the Rent Controller had ordered the appellant to deposit tire process fee. Having failed to pass such order in the diary the Rent Controller should not have closed his defence. After going through the diaries maintained by the Rent Controller I feel that there is much force in the contention of Mr. Ihsanul-Haque. The diaries dated 21st October, 1977 and 7th Decem ber, 1977 are quite silent on the point of the payment of process fee. Indeed the wording of the diaries would certainly confuse a man of ordinarily prudence. Obviously benefit of such confusion should have been given to the appellant, but not to the respondents. The appellant should have been given opportunity of having produced his evidence in defence by the Rent Controller. Having failed to do so the order of the Rent Controller cannot be maintained, so the order of the District Judge. Beside I have examined the deposition of the respondent's witnesses Muhammad Hanif and Abdul Malik. However I would refrain from giving my comments on their evidence at this stage as it would certainly prejudice case of one of the parties before trial Court where the case is being remanded for retrial, but I can say it with confidence that the District Judge had not perused the proceedings of the case. I am not satisfied with view of the District Judge that lie had minutely read the order of the Rent Controller. Had the District Judge perused the R and Ps and the order of the Rent Controller, he would have certainly set aside the order and remanded the case to the Rent Controller with a direction to allow the appellant to adduce evidence in defence. The bare reading of the two orders dated 22nd March, 1977 and 14th September, 1977 passed by the Rent Controller and the District Judge clearly shows that it is not a judgment within the meaning of rule 4 Order XX of the C.P.C, The Order IV envisages that a judgment should contain concise statement of the case, the points for determination, the decision thereon and the reasons for such decision. Indeed both these orders of the lower Courts do not show so. Indeed, neither the Rent Controller nor the District Judge have applied their minds to the facts and the evidence on record or given reasons for their such decisions. The both orders indeed could not be maintained. My view is strengthened by the following cases : In case of Harbhagwan and others v. Ahmad and others (A I R 1959 All. 505) the Division Bench of Lahore High Court it is held- "that if a judgment is brief and uninteligible it should be set aside and the case be remanded to that Judge for recording judgment according to law." In case of Messrs Kuldip Oil Industries Ltd. v. Ch. Pratab Singh (A I R 1922 Lah 122) Division Bench of Allahabad High Court, it is held :- "Brevity may be the soul of wit, but brevity must not be taken to the point to which it has been taken by the Court below. The statement of the facts of the case is concise to a degree. It is not apparent from the judgment as to what the points of determination were. There is no discussion whatsoever of any oral or documentary evidence, nor are the conclusions that the plaintiff's suit shall stand decreed supported by any reasoning whatsoever. In the circum stances we would have been at least compelled to send the case back for a fresh judgment, because the learned counsel for the appellant has very rightly remarked that he is expected to attack the reasoning of a judgment in appeal and not merely the formal expression of the adjudication. In the view that we are taking the case goes back as a whole." After testing the two impugned orders on the touchstone of the above said authorities, I can say with confidence that the two lower Courts have failed to comply with the provision of Order XX, rule 4, C. P. C. There is no discussion on oral evidence of the respondent. The lower Courts ought to have considered the evidence produced by the respondent before passing the impugned orders. The both orders suffer from such infirmities of the law. However the Rent Restriction Ordinance, does not say that a Rent Controller has to strictly follow all the provisions of the Civil Procedure Code except a few provisions of the Civil Procedure Code. But in absence of such provisions in the Rent Restriction Ordinance the Rent Controller has to follow the general principles of the Civil Procedure Code. In view of the circumstances discussed above I am fully convinced that the appellant has certainly made out a case calling for interference of this Court. In view of such position I set aside the decisions of the two lower Courts. The case is remanded to the Civil Judge/Rent Controller Quetta who would afford a chance, to the appellant for leading his defence. Besides, the respondents may also be allowed to lead their further evidence if they so desire. The learned Rent Controller should complete the case within two months after receiving the order of this Court: The learned counsel for the parties are directed to appear before the Court of Civil Judge/Rent Controller Quetta on 14th October, 1978. In view of the peculiar circumstances of the case the parties shall bear their own costs. M. A. K. Case remanded.