1989 PLP 697 (CLC)

Nisar Ahmad Khan for Appellant. Mian M. Yousif Qureshi for Respondents. Date of hearing: 15th February, 1989. Syed Ghulam Mujaddad, respondent herein, had filed an ejectment application against Ghulam Farid and Abdul Waheed for ejectment from the shop in dispute in the Court of Controller of Rents Peshawar Cantonment (hereinafter referred to as the Controller) on the grounds of default in payment of rent from June, 1980 to December, 1981 and subletting. The tenants contested the said ejectment application and the learned Controller after framing issues recorded evidence of the landlord‑petitioner and adjourned the case for recording evidence of the tenants. Some adjournments were given to the tenants for the production of their evidence but on their failure he ultimately, by order dated 4‑5‑1987, closed their evidence and passed an order of ejectment against them. Abdul Waheed, respondent No.2 in the ejectment application came up with the appeal in hand.

2. The learned counsel for the appellant has urged that on the date, when the impugned order was passed by the learned Controller, the appellant and his one witness were present but his counsel was not present and in such a circumstance the learned Controller should have asked the appellant to record his evidence and he should have also recorded the evidence of the other witness who was present and thereafter if the learned Controller was not willing to give any further adjournment to the appellant then he should have, after closing his evidence, written a proper order by discussing the issues and giving his finding thereon.

3. The record will show that the evidence of the landlords‑' respondents herein had already been recorded and on the date of the impugned order the appellant and his one witness were present. In such an eventuality it was the duty of the learned Controller to record statement of the appellant and testimony of his other. witness' and then should have decided the ejectment application on merit after recording his discussion on the issues. The impugned order of the learned Controller has not only been made without observing the legal procedure but has also occasioned a miscarriage of justice and cannot be sustained.

4. I will, therefore, accept this appeal, set aside the impugned order of the learned Controller and will remand the case back to him with the direction that he shall give only one more opportunity to the appellant herein, who is respondent No.2 in the ejectment application, to produce his evidence and after recording the same he shall decide the case afresh by giving his findings on the issues involved herein. The appellant of the appeal in hand shall bear in I mind that he shall be given only one opportunity by the learned Controller for production of his entire evidence and no further adjournment shall be given in this respect by the learned Controller who is also directed to dispose of the matter within two months from today. No order as to costs. A. A./708/P Case remanded.