2001 SCMR 1676 (PLP)

Date of hearing: 4th September, 2000. SYED DEEDAR HUSSAIN SHAH, J.‑‑‑This common order shall govern the petitions as parties, facts, impugned judgment and case‑law are same and common.

2. Brief facts of the case are that the petitioner filed two Rent Cases bearing No.550 of 1995 and 514 or! 1995 for ejectment of the respondent through her attorney Muhammad Ashraf before the VII‑Senior Civil Judge/Rent Controller respectively on the grounds that the respondent had made alterations in the shop in dispute impairing its utility and value, committed wilful default in payment of rent and for the personal bona fide use. Both the rent applications proceeded separately and were decided by the Rent Controller in favour of the petitioner. Respondent assailed the judgments of the Rent Controller before the High Court of Sindh through F.R.As Nos.328 of 1999 and 329 of 1999, whereby the learned Judge in Chambers allowed the appeals and set aside the orders of the Rent Controller by a common judgment dated 13‑10‑1999 hence these petitions for leave to appeal.

3. Mr. Abrar Hassan, learned Advocate Supreme Court for 'the petitioner contended that learned Judge in Chambers wrongly reversed the orders of the Rent Controller solely on the ground that evidence .of attorney Muhammad Ashraf could not be treated as evidence on behalf of the petitioner‑landlady; that the learned Single Judge failed to appreciate that a person holding properly executed General Power of Attorney can be validly examined on behalf; of the landlady in a rent case; that the impugned order is not sustainable in law. He cited Karim Bakhsh v. Haji Arthi Khan v. Secretary to Government of Punjab 1983 SCMR 179 and Syed Abdul Rauf v. Abdul Sattar 1998 SCMR 2525.

4. Miss Wajahat Niaz, learned Advocate‑on‑Record for the respondent pointed out that the respondent was not allowed to cross‑examine the witness of the petitioner‑applicant despite two applications were filed by him for cross‑examining attorney Muhammad Ashraf which were dismissed. She also referred to order of the Rent Controller dated 16‑3‑1998 whereby side of the petitioner/applicant was closed and cross‑examination of attorney was not permitted consequently statement of attorney in the affidavit in absence of cross‑examination could not be treated as evidence in law.

5. In case of Karim Bakhsh (supra), this Court has observed that mere fact that the landlord did not appear in the witness‑box was no ground for rejecting the claim. In case of Syed Abdul Rauf (supra) this Court has observed:‑‑ "We are of the view that every case is to be decided keeping in view its peculiar facts and circumstances and no hard and fast rule can be laid down. There can be legitimate causes and reasons for a suitor to a cause for non‑appearance in Court. Mental or physical disability as well as the case of a female would stand on a different footing. The Courts are meant for the citizens from where they seek justice and, therefore, to put a clog or non‑suit them on account of non appearance even in genuine cases without any valid and cogent reasons would be a dangerous proposition for administering justice with even hands between the parties. In our opinion, it will not be in the interest of justice to lay down that in every case where a party does not appear or arranges his appearance through attorney, an adverse inference should be drawn against him. Such a rule if laid down, would result into great hardship in cases where the parties, for instance, reside abroad, who will have to sue and defend themselves through their attorney."

6. Learned Judge in Chambers discarded the evidence of attorney who appeared on behalf of the petitioner as under:‑‑ "

13. Neither the landlady, nor her husband appeared to place before the Rent Controller, their case for their requirement, but on mere statement of the attorney that husband of the applicant has no other accommodation to start his own business hence she requires the shop for the personal need of her husband, the Rent Controller ordered eviction of the appellant from the shop in dispute." It has been further observed that:‑‑ "there is no statement of landlady or the relative who requires the shop. There is statement of a third person only that, too, has been rebutted through the evidence of the opponent/appellant. Statement of a third person about the personal need of the owner cannot be accepted as conclusive to evict a tenant on this ground."

7. Admittedly, on 16‑3‑1998, cross‑examination of the attorney of the petitioner could not be made as the side of the applicant was closed by the Rent Controller in the following terms:‑‑ "The attorney of the applicant present with her Advocate. On the other hand, the opponent and his Advocate are called absent. At the early hours the counsel of the applicant appeared and was informed by the Reader that the case will proceed but thereafter he has not turned up. It is now 1205 Noon. The side of the applicant is, therefore, closed due to default on the part of the opponent."

8. We have minutely gone through the evidence and have also examined the orders as well as judgments of both the Courts below from which it transpired that side of the petitioner‑landlady was closed and the respondent was not afforded a reasonable opportunity to cross‑examine and A in absence thereof the affidavit‑in‑evidence was not considered as evidence with the result respondent could not place his case in the cross‑examination consequently evidence of the petitioner was held to have gone unchallenged which caused prejudice and injustice to the respondent.

9. The view taken by learned Single Judge that appearance of petitioner‑landlady through her attorney Muhammad Ashraf in the witness box was no evidence worth consideration in support of her case cannot be upheld in view of the law laid down by this Court referred to hereinabove.

10. In all fairness and equity we convert these petitions into appeals and allow the same. The impugned judgment of the learned Judge in Chambers as well as the orders of the Rent Controller are set aside. The cases are C remanded to Rent Controller for decision afresh‑ after providing an opportunity to the respondent to cross‑examine the attorney of the appellant/applicant‑landlady. The Rent Controller shall decide the cases within a period of four months after receipt of this order and shall also submit progress report every month to this Registry. Q.M.H./M‑232/S Appeal allowed.