1979 PLP 114 (CLC)

S. K. Lodhi v. Claims Commissioner, Pakistan and others P L D 1968 Lah. 1311 rel. K. H. Khurshid for Appellant. This Second Appeal from Order arises from a proceeding brought for ejectment of the appellant from half portion of Choubara of the Property No. S. 31 R. 146, situate at 8 McLeod Road, Lahore, which portion had been transferred by-the Settlement authorities in favour of respondent Mst. Mumtaz Begum. The Choubara which was an evacuee property, had been finally disposed of by the Additional Settlement Commissioner on 5-1-1966, in appeal preferred by one Zahid Hussain. In that appeal, the parties had filed an amended deed of agreement whereby Mst. Mumtaz Begum and Zahid Hussain had agreed to division of the Chobara according to the alignment of the wail on the ground floor, the eastern portion going to respondent Mst. Mumtaz Begum and the western. portion to Zahid Hussain. The whole Chobara had been in occupation of the appellant and as such he became a tenant by operation of the law. In her ejectment petition, the landlady, had alleged default in payment of rent and damage to the property. The allegations were denied by the appellant who had also denied the service of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The landlady, finding it difficult to prove the notice, pressed her case only on the ground of damage. The following issue was accordingly framed. "Has the respondent caused damage to the property in dispute and consequently lost protection under section 30 of Displaced Persons (Compensation and Rehabilitation) Act?" 2. The specific allegation, as it transpired in the evidence, was that the appellant had demolished the stairs leading up to the landlady's portion of the Chobara. After going through the evidence of the parties, the Controller finding the issue against the appellant, directed his ejectment. The order was upheld, by the Additional District Judge, Lahore, in the first appeal filed. By the appellant. 3. Learned counsel for the appellant urged that the appellant having purchased Zahid Hussain's portion was himself owner of half the Chobara and as no wall had been erected between the two halves and the Chobara had not otherwise been partitioned by metes and bounds, ejectment of the appellant could not be ordered without first partitioning the property. He urged that the appellant had led evidence to show that there had, in fact, existed no stairs, the demolition of which was alleged, but that the Tribunals had arbitrarily disbelieved the evidence. 4. I find from the agreement of association between Mst. Mumtaz Begum and Zahid Hussain, which had been the basis for the transfer of the Chobara to them by the Additional Settlement Commissioner, shat the identity of the two portions-was clearly described. Paragraph 2(b) of the agreement is to the effect that the two transferees bad already erected a wall in the hall room of the shop of the ground-floor which divided the ground-floor between them and that the same wall would also divide the Chobara in question. Since the wall on the ground-floor exists and there is no evidence that it does not, the identity of the two portions of the Chobara stands determined. There is, thus, no force in the contention that an actual partition of the Chobara must be carried out before an ejectment could be ordered. As regards the contention that the appellant is already owner of the portion transferred to Zahid Hussain, it is to be noted that no such plea had been set up in the written statement filed by the appellant. Nor had any issue been consequently framed about it. Even if the appellant could be said to have acquired ownership rights from Zahid Hussain, that will not affect the present proceeding because the dispute relates to Mst. Mumtaz Begum's portion only in regard to the question whether there had been a stair-case or not, or if any, whether the same had been destroyed by the appellant, both parties had led evidence. Since this is purely a question of fact and concurrent finding has been recorded by the Tribunals below to the effect that there had been such a stair-case which had been demolished by the respondent, the same cannot be-agitated in the second appeal. 5. Another ground taken was that the judgment passed in appeal by the Additional District Judge, Lahore, was vitiated, the same having been delivered about four and a half months after the hearing of arguments. Reliance was placed on Pathana v. Mst. Khundal (P L D 1952 B J 38). In this authority a learned Single Bench of this Court held that where judgment had been delivered five months after hearing arguments, it tantamounted to delivering judgment without hearing the parties. This view based on the supposition that it was not reasonably possible for the Presiding Officer to retain the arguments in his brain for five months when the judgment was actually written. While no word of approbation can be uttered for undue delay in pronouncing judgment after conclusion of arguments, there can be no absolute rule that the judgment in every case of delay would stand vitiated, for it is possible and it usually happens that the Presiding Officers take notes of the arguments, on the basis of which they cast their judgment. There can be other cogent reasons too for the delay. There is a Division Bench authority of this Court, i.e. S. K. Lodhi v. Claims Commissioner, Pakistan and others (P L D 1968 Lah. 1311) wherein it had been held : "Mere delay in pronouncement of judgment, which may be due to multiple reasons, is no ground to detract from the correctness or legality of a particular order." 6. In the matter in hand, arguments had been heard on 13-7-1977. On 7-9-1977, the order could not be announced because the Presiding Officer (Additional District Judge) was busy with election duty. On the next date i.e., 26-9-1977, it was found that the appellant had not furnished certified copy presumably of the Controller's order impugned in the first appeal. He was accordingly given time and the copy was furnished on 17-10-1977, whereupon the matter was adjourned and the order was announced on the next date, i.e. 26-10-1977. I, therefore, find that the delay was not of four and a half months but a little over three months and that there is explanation for the delay. The appellate authority's order cannot, therefore, be held to be vitiated on this account. 7. For the foregoing reasons, the appeal is found to be without merit and is accordingly dismissed. Appeal dismissed.