1999 PLP 3045 (MLD)

4. It is pertinent to mention here all the issues were framed on 18-12-1985:-- Issues. (1) Whether the petitioners have supposed material facts, if so, its effect? O P R (2) Whether the respondent has committed wilful default in payment of rent? O P A (3) Whether the petitioner, in good faith, rented property for the used occupation of Sh. Muhammad Nafees, son of the petitioner No. 2? O P A (4) Order.

5. The learned Rent Controller after recording the evidence decided the case on the basis of proceedings held on 5-12-1985 between the parties and accepted the ejectment petition. The present appellant aggrieved by the order of the learned Rent Controller filed an appeal before the learned District Judge, Rawalpindi which was finally dismissed by the learned Additional District Judge, vide its judgment and decree, dated 31-7-1990; hence the present appeal.

6. The learned counsel for the appellant contended that the oath proceedings were limited to determine the rent under section 13(6) of the Urban Rent Restriction Ordinance, 1959 and could not be made the sole basis for holding the appellant to be a defaulter. He further argued that both the Courts below failed to decide Issue No. 2 relating to wilful default in the light of the evidence adduced by the parties. It is further argued that respondents filed application under section 13(2) of the Urban Rent Restriction Ordinance, 1959 for ejectment from the disputed premises and the proceedings for the determination of monthly rent under section 13(6) of the Urban Rent Restriction Ordinance, 1959 cannot be made basis to accept the ejectment petition. Both the Courts below decided the case in violation of the mandatory provision of Civil Procedure Code, Order 20, Rule, 5, C. P. C. It is argued that both the Courts below ignored the evidence on record adduced by the parties. The proceedings of Oath were not recorded in accordance with Article 163 of Qanoon-e-Shahadat Order, 1984, therefore, proceedings are non-existence in the eyes of law. It is also argued that the respondents also filed cross-objections which revealed that the respondents were not satisfied with the findings of both the Courts below.

7. The learned counsel for the respondents contended that contents of paras. (1) and (2) ejectment petition and written statement revealed that both the parties contradicted each other, therefore, to resolve the controversy between the parties on facts regarding monthly rent and default; the appellant/respondent made offer that in case the respondent/plaintiffs made statement on Oath as mentioned above, the respondents/plaintiffs accepted the offer and made an Oath before the Court in accordance with the terms of offer; hence the agreement/contract is completed. He relied upon (1981 S C M R 162). He further argued that he filed cross-objections for abundant caution in case the findings of both the Courts below are not sustainable then the evidence on record is sufficient to decide the controversy between the parties on the ground of personal need.

8. I have given my anxious consideration to the facts and circumstances of the case and heard the learned counsel for the parties. The offer as mentioned above made and acted upon subsequently both the parties could not resile from it, as is held by the Supreme Court of Pakistan in "Saleem Ahmed v Khushi, Muhammad" (1974 S C M R 224). The relevant observation ' is as follows at para. 225:

"The High Court rejected both the contentions and held that there was no ground in law or in equity on which the petitioner could claim the right of realising from the solemn agreement which was entered into by him. Such an agreement was in the nature of contract and one of the contracting parties could not be allowed to back out of it unless the contract was void or had become frustrated." It is admitted fact that both the Courts below concurrently given findings against the appellant. The learned counsel of the appellant failed to point any misreading or non-reading of the record and legal infirmity that judgment of both the Courts below are not sustainable in the eyes of law. In my view the judgment of both the Courts below are sustainable in the eyes of law as the law declared by the Supreme Court of Pakistan as mentioned in Saleem Ahmed's case (1974 S C M R 224).

9. In view of these circumstances the other submission of both the learned counsel are not relevant to discuss as both the Courts below has rightly decided the controversy between the parties on the basis of material available before them and offer made by the present appellant; accepted by the respondent and acted upon. I am not in agreement with the arguments of the learned counsel of the appellant that the oath proceeding were not conducted in accordance with Article 163 of Qanoon--e-Shahadat Order, 1984. It is well-known principle of law that technicalities cannot defeat the justice, even otherwise the conduct of the appellant does not deserve any discretionary relief as the appellant himself made offer which was accepted by the respondent, then appellant could not resile from his commitment/offer; hence both the Courts below did not exercise discretion in favour of the appellant.

10. In view of what has been discussed above this appeal is dismissed with no order as to costs. As how the appellant is granted three months times to vacate the premises and hand over the same to the respondents without any hindrance in the interest of justice and fairplay. Q.M.H./K-80/L Appeal dismissed.