1984 PLP 418 (SCMR)

NASIM HASAN SHAH. J.‑‑This petition is directed against the judgment passed by a learned Single Judge of the Lahore High Court, dated 19‑7‑1983 dismissing the Writ Petition (W. P. No. 2549/1983) filed by the petitioners which was directed against the order of a Rent Controller ordering his ejectment from a shop, situate in Kasur, which order was upheld by the learned Additional District Judge. The relevant facts are that the respondents filed a petition seeking the ejectment of the petitioners from a shop bearing No. IV‑B‑R‑II situated in Gandam Mandi, Kasur. Several grounds were urged in support of the ejectment petition, namely, personal need damage to the property and default in the payment of rent. The Courts below have found that the allegations of the landlord with regard to personal need and damage to the property were not established, but found the petitioners guilty of payment of rent and, therefore, ordered their ejectment on the ground of default. The case of the petitioners was that the respondents/landlords were permanent residents of Gujranwala and used to receive the rent personally but after some time they felt that it would be more convenient for them to collect the rent through one Riaz alias Khalifa, their brother‑in‑law who was in Kasur, doing some business their. Accordingly, a post‑card was written by respondent No. 1 (Exh. R/1) instructing the petitioners to pay the rent of the premises to their brother‑in‑law at Kasur instead of paying the rent directly to them. Consequently, the petitioners started paying the rent of the shop with effect July, 1976 to the said Riaz. The default in the payment of rent found against the petitioners relates to the period after July, 1976. The crucial questions before the Rent Controller were :‑ (i) Whether the respondents had written a post‑card to the petitioners directing them to pay the rant to Riaz Ahmad ; and (ii) Whether the rent was in fact paid to Riaz Ahmad in pursuance of the aforesaid post‑card. During the course of the evidence led before the Rent Controller, Sardar Muhammad respondent No. 1 was confronted with the post‑card allegedly written by him instructing the petitioners to pay rent to Riaz Ahmad. The said Sardar Muhammad denied his signature on the said post‑card. The petitioners, thereupon, applied to the Rent Controller for an opportunity to examine a handwriting expert to seek his opinion with regard to the question whether the signatures on the post‑card were those of Sardar Muhammad or trot. This application was rejected. The petitioners also requested the learned Rent Controller to summon Riaz Ahmad who was allegedly refusing to appear on the request of the petitioners before the Rent Controller but this application too was rejected, on the ground that it was made at a belated stage. In the result, the petitioners were held guilty of having committed default in the payment of rent. We have heard the learned counsel for the petitioners as well as Malik Muhammad Azam, learned counsel for the contesting respondents. We feel that the learned Rent Controller acted arbitrarily and perversely in not allowing the crucial questions in the case to be clarified, namely, whether Sardar Muhammad had sent a post‑card to the petitioners asking them to pay the rent to Riaz Ahmad, and whether Riaz Ahmad had indeed been accepting the rent. Since no order of ejectment in law can be passed against a tenant without giving him a reasonable opportunity of showing cause that he is not liable to be ejected, we consider that a legal condition, laid down by the statute, was violated. Hence, the order of the Rent Controller and the subsequent orders upholding the same cannot be sustained. On the request of the learned counsel for the respondents, this petition is converted into an appeal. The orders passed by the Rent Controller dated 24‑2‑1981 as also the subsequent orders affirming the same, namely, the order of Additional District Judge dated 25‑5‑1983, as also those of the High Court dated 19‑7‑1983, are hereby set aside. The case will be remanded back to the Rent Controller who will allow a handwriting expert to examine the signatures on the post‑card (Exh. R/1) with a view to ascertaining his opinion as to whether the person signing it, was Sardar Muhammad respon dent No. 1 or not. He will also summon Riaz Ahmad to give evidence in, the case. However, since this case has been pending for quite some time, the needful shall be done within a period of three moths. This appeal is allowed in the above terms leaving the parties to bear their own costs. S. Q. Appeal allowed.