2009 PLP 1178 (YLR)

KHAWAJA NAVEED AHMAD, J.

Learned counsel for the petitioner submits that the petitioner constructed a multi-storeyed building on Plot No. S.R. 7/26 and 27, Unit No. B-(VI)(2)92, known as Tayyab Ali Alvi & Ismail Alvi Building, Altaf Hussain Road, South Napier Road, Karachi. He stated that Muhammad Siddiq Haji Dawood was tenant of the building. The petitioner had filed Rent Case No.1556/2001 in the Court of learned Rent Controller and during the ejectment proceedings the tenant Muhammad Siddiq Haji Dawood had expired. The legal heirs of the tenant Muhammad Siddiq Haji Dawood, who were seven in number, were impleaded as party. The landlord was examined and his side was closed. The tenant Muhammad Siddiq Haji Dawood had filed his affidavit-in-evidence on 24-10-2002. His cross-examination was reserved for want of original documents. In the meantime on 8-3-2003 one Muhammad Iqbal had filed an application under Order, I, Rule 10, C.P.C, claiming therein that he was sub-tenant of Shop No.25 and he had legitimate right to contest the case. The Court had allowed the application but the Intervenor, who had become the respondent had not filed any written statement within time and was debarred from doing so. In the meantime, the Intervenor had died and legal heirs of Intervenor were made party. Learned counsel has stated that the respondent No.1 had never applied in the lower Court for recalling the order of debarring their father from filing written statement and they had never shown desired to file the written statement and as such the order debarring them from filing written statement had attained finality. In the meantime in the trial Court diary dated 30-10-2006 it was erroneously mentioned that the matter is fixed for cross-examination of applicant through it was not fixed for such purpose and this error was rectified by the Court by its subsequent order dated 7-2-2007. Respondent No.1 had challenged this order in the Court of District & Sessions Judge, Karachi (South) with a limited prayer that the respondent may be allowed to cross-examine the landlord. The learned District & Sessions Judge, Karachi (South) vide its order dated 8-5-2007 was not only pleased to allow party to cross-examine the landlord but the Court had also allowed the legal heirs of (late) Muhammad Iqbal to file written statement also. Learned counsel for the petitioner is aggrieved by this order and says that the learned District & Sessions Judge, Karachi (South) has allowed the appeal beyond the prayer clause and he has given relief to the party which was not even demanded by the party. Learned counsel has further stated that the order was an interlocutory order and it was not appealable in the Sessions Court. In support of his contentions, learned counsel for the petitioner has relied upon the cases reported as Mehmood Ahmed v. State Life Insurance Corp. Pak 1998 CLC 1987 and Habibullah v. Zakir Ali (PLD 2000 Karachi 238). I have heard learned counsel for the petitioner at length and have perused the order of the learned District & Sessions Judge, Karachi (South). The contentions raised by learned counsel for the petitioner to the effect that order of debarring a party from filing written statement is an interim order does not carry weight because a party who has been debarred from the proceedings for that party it is a final order and the learned District Judge had rightly entertained the appeal against that order. Learned advocate for the petitioner has raised another contention that the learned District & Sessions Judge, Karachi (South) has granted the relief to the appellant in excess of the relief claimed by the appellant. The Courts in the interest of justice are not bound to grant the relief sought by the parties. The Courts in the interest of justice can grant relief to the parties which Courts deem fit and proper in the circumstances of the case. In the present case, learned District & Sessions Judge, Karachi (South) had deemed fit and proper that a party, who was allowed to become Intervenor on merits should be allowed to file, the written statement so that their rights should not be prejudiced. It has been repeatedly held by the superior Court that the cases should not be decided on technicalities but on merits. Learned counsel for the petitioner has vehemently argued that the procedure should be adopted and according to Code of Civil Procedure, 1908 the Intervenor was debarred from filing written statement and learned District & Sessions Judge, Karachi (South) has erroneously allowed his legal heirs to file the written statement, specially when they have not asked for it in the prayer clause of their Memo of Appeal. I agree with the learned counsel for the petitioner that the Intervenor had not applied for filing written statement, therefore, the learned District & Sessions Judge, Karachi (South) should not have allowed them to file written statement, however, the right of participation cannot be denied. The legal heirs of Intervenor are allowed to cross-examine the landlord and participate in the proceedings till the conclusion of the proceedings including addressing final arguments before the trial Court. Accordingly, Constitutional Petition No.377 of 2007 is disposed of in the above terms along with listed application. Learned counsel for the petitioner requests that it is an old matter and learned Rent Controller may be directed to conclude this case within three months. The request is allowed. The learned Rent Controller is direct to dispose of the case expeditiously. S.A.K./T-3/K Petition disposed of.