2004 PLP 830 (CLC)

Petitioner has called in question the judgment passed by the learned 1st Additional District Judge, Karachi‑Central, in F.R.A. No.346 of 2001 dismissing the said appeal and maintaining the ejectment order, dated 26th September, 2000 passed by the learned IIIrd Rent Controller, Karachi Central. The facts relevant for the purpose of decision of the Constitutional petition are that an application under section 15 of the Sindh Rented Premises Ordinance, 1979, was filed by respondent/ landlady Mst. Fatima Saeed seeking ejectment of petitioner/tenant Muhammad Irfan from the shop as defined and described in the said ejectment application on the grounds of wilful default in payment of rent and requirement of the premises in question for her personal bona fide use. Petitioner/tenant resisted the ejectment application and in his written‑statement he denied to be a defaulter. He also disputed the claim that the demised shop was required by the landlady for her personal bona fide requirement. Son and attorney of landlady filed his affidavit‑in‑evidence. His evidence remained unrebutted as according to the learned Rent Controller the tenant failed to cross‑examine him whereas according to the tenant no proper opportunity was provided to him either to cross‑examine the said witness or to adduce his own evidence in rebuttal. It appears that ejectment was allowed on both the grounds and appeal filed against the said order was rejected by the learned Appellate Court. It has been mainly contended and vehemently urged by the learned counsel for the petitioner that the petitioner was declined a proper and reasonable opportunity either to cross‑examine the attorney of, the respondent/landlady or to adduce his own evidence causelessly by the learned Rent Controller An application for re‑opening of the side of the petitioner/applicant and grant permission to cross‑examine his attorney was rejected by the learned Rent Controller on the ground that the said application was filed beyond time though no such time is provided under any provision of the Limitation Act or any other law for the time being in force. The learned counsel has further argued that the petitioner/tenant was not allowed time to file his affidavit‑in‑evidence in rebuttal as on the very first day of the hearing for the said purpose request for time was declined by the learned Rent Controller without any reasonable cause and his side was closed. The learned counsel has, therefore, vehemently urged that in view of the such conduct of the learned Rent Controller substantial prejudice has been caused to the petitioner and the case has been decided without there being any evidence of the other side on record. While assailing the order passed by the learned Appellate Court Mr. Anwar Hussain, learned counsel for the petitioner, has further argued that the learned Appellate Court has also acted illegally and failed to exercise jurisdiction vested in it while ignoring the fact that the petitioner was virtually condemned unheard before the learned Rent Controller. Mr. Muhammad Shafiq Mughal, learned counsel for respondent No.1, has argued that sufficient opportunity was given to the petitioner/tenant by the learned Rent Controller but he himself failed to avail, the same and, as such, the orders passed by the learned Rent Controller and the learned First Appellate Court do not suffer from any illegality or infirmity, hence do not call for any interference. With the able assistance of learned counsel for the parties I have examined the R & P of this case. After going through the case diaries and the orders passed by the learned Rent Controller I find that the order for closing the side and further refusing to recall the witness of the landlady and to allow the petitioner/tenant to cross‑examine the witness are not justified. It appears that application for are‑opening the side and allowing the counsel for the tenant to cross‑examine he said witness which was filed on 25‑11‑1999, according to the learned Rent Controller was time‑barred as the side was closed on 12‑10‑1999 and the said application was filed beyond a period of thirty (30) days. The plea taken by the learned counsel for the tenant that with effect from 12‑1‑1999 to 25‑11‑1999 he was busy due to throat operation of his wife also did not find favour with the learned Rent Controller and according to her it was not a sound reason for not filing the said application within time. I inquired from the learned counsel for respondent No.1/landlady to show any relevant law fixing the time of thirty (30) days for filing an application for re‑opening of the side but he frankly conceded that he was not in a position to defend the said order on that ground However, he argued that the petitioner/tenant has been negligent to defend his case and, as such, does not deserve any indulgence. After hearing the learned counsel for the parties and having gone through the record I find that the learned Rent Controller has erred in law and failed to exercise the jurisdiction vested in her on a flimsy ground which has no legs to stand as no time limit is provided for filing an application for re‑opening the side. However, it is expected that it should be filed within a reasonable time and should not suffer from laches. Rights of the parties should not be allowed to be jeopardized in such a manner. The Courts are not expected to thwart the rights of the litigants as the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. Imtiaz Ahmad v. Ghulam Ali PLD 1963 SC

382. However, inconvenience to the other side in appropriate cases can always be compensated through costs. I am satisfied that a reasonable opportunity was not provided by the learned Rent Controller to the petitioner/tenant to put up his case by cross‑examining the attorney of the landlady, and thereafter filing his evidence in rebuttal. However, I have noted some slackness on the part of the tenant as well for which the other side should be duly compensated. This petition was allowed by a short order, dated 20‑1‑2003 which is reproduced below and shall form part of this order:‑‑‑‑ "For reasons to be recorded later this Constitution petition is allowed and the orders passed by the learned First Appellate Court as well as the learned Rent Controller are set aside subject to payment of costs of Rs.10,000 (Rupees ten thousand) only by the petitioner/opponent to the respondent No. 1/applicant within one week from today. This case will go back to the learned Rent Controller who shall provide an opportunity to the petitioner/opponent to cross‑examine the applicant and her witnesses on, 15th February, 2003 or any other convenient date with the consent of the parties but not beyond one week from that date. After completion of the cross‑examination of the applicant's witnesses, the opponent shall file affidavits‑in -evidence within three weeks thereof. The learned Rent Controller is expected to dispose of the matter afresh within a period of six months from the date of receipt of this order. No fresh notices will be issued by the parties who shall appear before that Court on 15th February, 2003." The above are the reasons for the same. Ejectment order set aside. H.B.T./M‑20/K Case remanded.