2001 PLP 1005 (MLD)

(c) Based on mere surmises, conjectures, misappreciation, and misinterpretation of law and facts; (d) Without any rationale or justification rather even without proper application of judicial mind; (e) Against the fundamental principles of natural justice; (f) Apparently not cogent rather vague, sketchy, and non‑speaking as the contentions raised by and on behalf of the appellant have not been properly considered rather totally ignored and overlooked thus remained unnoticed unattended, and unweighed, and not appreciated properly; (g) Unusual with material irregularity tantamounting to gross miscarriage of justice, wrongful assumption of jurisdiction and/or refusal to exercise the duly vested in him; (h) Not cogent or reasonable rather against the well‑settled fundamental principles prudence and law; (i) Unreasonable somuch so that the petitioners are glaringly apparent on the face of the record; (j) Self‑contradictory and self‑destructive; (k) Fit to be summarily set aside.; thus nullity and untenable in law." Learned counsel for the appellant also laid much emphasis on the point that the appellant died on 26‑10‑1995. Therefore by way of his own right being son of original tenant and as a legal representative of the deceased, by operation of law. Mr. Sethna got the tenancy rights in the demised premises. Therefore, toe question of alleged subletting does not arise. Lastly he submitted that since the respondents are guilty of playing fraud on the learned Rent Controller by abusing the process of law the appellant's C.M.A. No.735 of 1992 may be allowed and the impugned order may be se aside. He cited Imtiaz Ahmad v. Ghulam Ali and others PLD 1963 SC 38: (FB), Jamil Ahmad v. Late Saifuddin 1997 SCMR 260, P.O. Punjab v. Col Abdul Majeed 1997 SCMR 1692, Shezan Limited v. Abdul Ghaffaf and others 1992 SCMR 2400, Muhammad Ashraf Shaikh v. M/s. Aeroflo Airlines 1993 CLC 555, Abdul Farid Khan v. Ferozdin, 1993 CLC 515 Mst. Azizan v. Meherdin 1993 CLC 1187, Muhammad Siddiqi v. Fakir Muhammad 1993 CLC 1'158, Mst. Ghulam Fatima v. Chief Administrator Auqaf 1993 CLC 692, Mst. Alia Masood v. Mrs. Mussarat Musawar PLL 1993 Karachi 676, Muhammad Ali v. Imdad Hussain 1997 CLC 768 Muhamamd Afzal v. Small Business Corporation 1997 CLC 1080, Dr. M Mustafa Hussain v. Muhammad Mustafa PLD 1986 Karachi 199, Khawaja Gulzar Ahmed v. Mst. Latifan 1985 CLC Karachi 1044, Haji Rashid Ahmac v. Mst. Akhtari Jehan 1988 CLC Karachi 262, De. Zubeda Hamid Ali Khai v. Mrs. Shibli 1991 MLD 1383 and others in support of his submission.

7. Learned counsel for the respondent, while supporting the impugned judgment submitted that ample opportunity was given to the appellant and her advocate to lead evidence but she committed gross negligence in the prosecution of the case. In support of his submissions he cited the following case‑law: "M/s. Niazi Institute of Science Organization v. Anwar Zaman 1989 SCMR 261, Mst. Shirian Begum v. Habib Bhai 1988 SCMR 670, Rehmat Ali v. Javed‑ur‑Rehman 1985 SCMR 698, Muhammai Suleman Sulfi v. Mst. Azra Shamim 1989 SCMR 1810, Rafiq Ahmad Khawaja v. Abdul Haleem 1982 SCMR 1229, M. RafiquMalik v. Mst. Surriyya Khanum and 4 others 1995 CLC 1933, M/s Niazi Institute of Science Organization v. Anwar Zamani 1987 CLC 1804, Shaikh Muhammad Igbal v. Saira Bano 1993 CLC 1761 Kamaruddin Shalwani v. Ahmad Muneer Nanawatty 1993 MLI 1341, Mehr Abdur Rashid v. Ch. Sher Ali 1993 MLD 2149 and Mirza Abdul Ghafoor v. Shafi Woolen Industries Ltd. PLD 198! Lahore 299.

8. The burden to prove the alleged default and subletting was initiall; on the respondent. In support of their case the respondent filed affidavit‑in evidence on 3‑9‑1990 of two witnesses. Their Deputy Manager Real Estat Division Mr. Pir Khan Sajid gave details of the alleged wilful default i: payment of rent in the following way: "

4. I say that the opponent failed to pay rent of the said premises fo May, 1988, therefore, the rent paid by her in June, 1988 wa appropriated towards the rent of May, 1988 and likewise the rent paid by her in July, August, September and October, 1988, The opponent further failed to pay rent of the said premises for Octobe and November, 1988, therefore, the rent paid by her in December 1988 was appreciated towards the rent of October, 1988.

5. I say that the opponent did not pay any amount towards the rent of November and December, 1988 and in January, 1989; she tendered the rent under the name of a firm i.e. M/s. N.D. Sethna & Co. and since the said firm was not the tenant of the applicant, therefore, the applicant returned the said cheque to the opponent under cover of their letter dated 25‑1‑1988. I produce photocopy of the said letter as Exhibit "A‑2".

6. I say that since the opponent did not pay any amount towards the rent of November and December, 1988, therefore, the rent paid by her vide. Cheques Nos.015093 and 015094 dated 9‑2‑1989 was appropriated towards the rent of November and December, 1988. I produced photocopy of the rent receipt as Exhibit "A‑3".

7. I say that the opponent did not pay any amount towards the rent of January and February, 1989. Therefore, the rent paid by her in the month of March, April and May, 1989 was appropriated towards the rent of January, February and March, 1989. I produce photo copies of the rent receipts as Exhibits "A‑4", "A‑5" and "A‑6."

8. I say that at the date of institution of this case, the opponent had failed to pay the rent from April, 1989 to September, 1989, thus, a sum of Rs.423 was due and payable by her towards arrears of rent,

9. I say that subsequent to the filing of this ejectment case the opponent has further failed to pay the rent of the said premises from October, 1989 onward, thus a sum of Rs.634/50 is further due and payable' by her towards arrears of rent from October, 1989 to June, 1990."

9. In para.10 of his affidavit-in‑evidence it was alleged that the appellant had vacated the demised premises and shifted to Flat No. 12 second floor, Trust Building, No.2 Katrak Road Saddar Karachi and without consent of the respondent possession of the demised premises was handed over to Mr. D.D. Sethna. It was further alleged that after institution of the rent proceedings on 18‑5‑1990 again without consent of the respondent, the appellant handed over the possession of the demised premises to one Sohail son of Mr. S.M. Latif Proprietor of M/s. Latif Optical Store, State Life Building Saddar Karachi. Another witness, Security Guard Jamadar M. Abbas confirmed that Mr. Sohail son of S.M. Latif and his children were in possession of the demised premises. Admittedly, the evidence of ‑the respondent has gone unchallenged and unrebutted.

10. This brings me to 'the question whether the appellant was condemned unheard. The record shows that the appellant's learned counsel received copy of die affidavit‑in‑evidence of respondents witnesses on 3‑9‑1990 and the, matter was adjourned to 20‑9‑1990 for cross‑examination of respondent's witnesses, but no cross‑examination took place. Thereafter the matter was adjourned or eight dates of hearing for same purpose and ultimately the respondent closed its side and on 23‑1‑1991 the matter was adjourned for 10‑2‑1991 for evidence of the appellant. After expiry of 35 days the appellant filed application on 27‑2‑1991 for setting aside the order dated 23‑1‑1991, which was allowed in the interest of justice subject to payment of costs. of Rs.500 and the appellant was directed to cross‑examine the respondents witnesses, but the appellant's learned counsel failed to avail this opportunity and moved adjournment application which too was granted as last chance on 21‑5‑1991 and the matter was adjourned to 3‑7‑1991. On 3‑7‑1991 neither the appellant paid costs of Rs.500 nor her learned counsel cross‑examined the two witnesses in spite of last opportunity and application under section 151, C.P.C. was submitted for reducing the amount of costs on personal grounds. By consent the application was allowed and the costs was reduced from Rs.500 to Rs.400 and the matter was adjourned to 4‑7‑1991 for cross‑examination. On this date of hearing in spite of fact that the matter had been adjourned as last opportunity, the respondent's witnesses were neither cross-examined nor costs of Rs.400 was paid. So much so, that neither the appellant nor her learned counsel attended the Court. Therefore, as a last resort the learned Rent Controller again closed the side of the appellant to cross‑examine the respondents witnesses and the matter was adjourned to 14‑7‑1991 for filing of affidavit‑in‑evidence by the appellant. Again on this date of hearing the case was adjourned to 1‑8‑1991, but neither cost was paid nor affidavit‑in‑evidence was filed by the appellant, as they were called absent without any intimation. Ultimately the side of the appellant was closed and the matter was adjourned to 4‑8‑1991 for final arguments. , On this date neither the appellant nor her counsel were present. Therefore, after hearing the arguments of the learned counsel for the respondent the matter was adjourned to 12‑8‑1991. On this date the matter was fixed for judgment when the appellant learned counsel filed application for recalling the order dated 4‑7‑1991 and the matter was adjourned to 26‑8‑1991 and 29‑8‑1991. Ultimately on 25th adjournment the learned Rent Controller dismissed the appellant's application dated 12‑8‑1991 for non prosecution and the case was adjourned to 20‑9-1991 for judgment. On 20‑9‑1991 since the appellant did not file any application for restoration of application dated 12‑9‑1991 which had been dismissed for non‑prosecution, the learned Rent Controller passed the ejectment order on 25‑9‑1991.

11. The above facts and circumstances clearly belie the claim of the appellant that she had been condemned unheard. The case‑law by the learned counsel for the appellant is not attracted to the facts and circumstances of this case. The record shows that the learned trial Court had given sufficient opportunity of hearing to the appellant and her counsel to pursue their case properly and deligently but they failed to do so within the parameter of reasonableness fairness and equity. Keeping in view the conduct of the appellant and her learned counsel I have no hesitation in holding that she and her learned counsel committed gross negligence in conducting the case before the learned Trial Court, therefore, her side was rightly closed. The impugned order therefore requires no interference. The case‑law (supra) cited by the learned counsel for the respondent fully supports this view. It would be advantageous to reproduce para.6 of the judgment (unreported) passed by the Hon'ble Supreme Court, in Civil Petition No. 74‑K of 1997, cited by the learned counsel for the respondent, as these observations are fully applicable to the instant case: "We have gone through entire record of the case and considered arguments advanced by learned counsel for the parties. Firstly, it may be seen that learned counsel for petitioners did not controvert the fact that more than 12 adjournments were sought on behalf of petitioners during pendency of F.R.A. No.357 of 1992. Strangely enough the eviction order was passed on 31‑5‑1992 and petitioners have successfully delayed it for about .5 years. Bare perusal of impugned judgment dated 24‑2‑1997 reveals that on account of frequent adjournments sought by learned counsel for petitioners, the disposal of appeal was almost impossible. We sincerely feel that learned counsel as officer of the Court was expected to adopt reasonable attitude, for ensuring effective and expeditious administration of justice, so that unconscionable delay could be averted. Record reveals that appellate Court was rendered helpless, by violent refusal of counsel to make progress in the matter. The impugned order displays said commentary on the wilful delay caused on behalf of petitioners concerning disposal of appeal. Evaluating relevant factors and attending circumstances we are satisfied that discretion exercised by the High Court in refusing to grant further opportunity, was neither perverse nor arbitrary. Therefore grievance about failure of natural justice has no bearing to the facts of instant case."

12. In view of the above, I also do not find any merit in the submission of the learned counsel for the appellant that the respondent abused process of Court and committed fraud. On the contrary ‑the record shows that the appellant adopted all possible dilatory tactics just to prolong the matter not only during pendency of ejectment proceedings but also in this Court, with the result that the ejectment application which was filed in 1989 and the appeal filed in 1991 have taken 10 years long time to attain finality. The contention of the learned counsel for the appellant that Mr. D.D. Sethna had also paid rent and receipt was also issued by the respondent is also devoid of any force in view of the law laid down in Dr. Ubadur Raza Khan v Mrs. Saghera Bano 1994 CLC 1302. The upshot of the above discussion for the foregoing reasons, is that this appeal having no merits is, dismissed with costs. The appellant is directed to hand over vacant possession of the demised premises to the respondent within 60 (sixty)'days subject to payment of rent. Q.M.H./M.A.K./D‑6/K Appeal dismissed.