1979 PLP 62 (CLC)

(1) Whether the respondent has made default in the payment of rent ? If so, with what effect ? O. P. P. (2) Whether the petition is mala fide ? O. P. R. (3) Whether the petition is not maintainable ? O. P. R. (4) Relief. Issue No. I is the only issue which has been contested throughout The learned Rent Controller, by his order dated 17-6-1970, found the issue in favour of the respondents-landlords holding that default had been committed by the appellant-tenant for the period August, 1966 till March, 1967 but exercising discretion did not order the eviction of the appellant.

4. Feeling dissatisfied with the order of the Rent Controller dated 17-6-70, the respondents-landlords went up in appeal to the learned Addi tional District Judge, Rawalpindi, who by his judgment dated 17-2-1971, accepted the appeal, set aside the impugned order and granted the application for ejectment. Hence this second appeal by the appellant tenant.

5. The learned counsel for the appellant contended : Firstly, that the learned Rent Controller did not declare Haji Abdul Rahim, a witness produced by the appellant himself ' "hostile" despite having been asked and as such fell into an error which resulted in miscarriage of justice ; Secondly, that the default alleged was effective from August, 1966 till the institution of the application for ejectment, i.e. 22-7-1967. This having been brought on record by production of evidence that rent for the months of April 1967 to July 196" was tendered through money orders, which were not accepted by the respondents, the lower Appellate Court should. have drawn an inference. adverse to the respondents-landlords while deciding the matter and, should not have upset the discretion exercised by the Rent Controller ; and thirdly, that since the Rent Controller had exercised discretion in a judicious manner the first Appellate Court should not have inter fered therein.

6. On the contrary, the learned counsel for the respondents sub mitted that the exercise of discretion by the Rent Controller had been rightly interfered with by the first Appellate Court in that the former had not adverted to the judicious norms for exercise of the said power, and, in fact, his order apparently shows that it was arbitrary. He also submitted that there was no proof available on record to show that the rent for the months of April to July, 1967 was remitted by money orders by the appellant and refused by the respondents. He drew my attention to the objection raised on behalf of the respondents before the Rent Controller at the time of admission of the money order coupons on record.

7. The contentions raised on behalf of the appellant are devoid of force. The Rent Controller himself has dealt with the request made for declaring Haji Abdul Rahim the witness of the appellant as "hostile". A witness cannot be declared "hostile" merely because he has deposed against a party. If a party chooses to produce a witness, it has to bear the consequences thereof. It cannot be said that a witness is not depos ing truly if he deposes against a particular party. The evidence of this witness, in fact, has caused damage to the case cal the appellant and it does not any longer lie in his mouth to make a grievance if the evidence had gone against him.

8. Similarly the second contention is misconceived. Merely because rent had been remitted by money orders for some months does not warrant the drawing of an inference adverse to the landlords for the period prior to the remittance of the rent.

9. Adverting, now, to 'the last contention as to the exercise of dis cretion, it may be pointed out that the only basis on which the Rent Controller exercised discretion in favour of the appellant-tenant was that he was "an old tenant" and that this was not the case of any party that there ever had been committed any default in payment of rent before August, 1966. Now, if a tenant does not default earlier but admittedly commits a default of no less a period than eight months this hardly warrants exercise of discretion in his favour. The whole effect of the West Pakistan Urban Rent Restriction Ordinance, 1959 will be washed out by such exercise of discretion and the provision of section 13 of the Ordinance whereunder an application for ejectment can be instituted on the ground of default in payment of rent will be nullified. The purport of the Ordinance apparently is that tenant is given protection only subject to his complying with the obligation of payment or tender of rent regularly and if default is committed without any just cause then the liability of eviction entails. The interference in the discretion by the first Appellate Court is apparently in the lawful exercise of the Appellate Court's power in this regard and no fault can be found therewith.

10. As a result of the above discussion, I find no merit in this appeal which is dismissed with costs.

11. At this stage, the learned counsel for the appellant-tenant has made a request that one month's time be allowed to the appellant to vacate the premises in dispute.

12. I am afraid this request cannot be acceded to. This appeal has been pending in this Court for the last nine years and there appears to be no justification for showing any indulgence to the appellant. Never theless a week's time is allowed from today's date to enable the appel lant to make alternative arrangement. In case the appellant fails to hard over possession of the premises in dispute to the respondents within a week from today, the respondents-landlords may obtain possession through the process of the Court. Appeal dismissed.