2003 PLP 1722 (YLR)

13. Keeping in view the above mentioned dicta laid down by the august Supreme Court of Pakistan and various other High Courts it can be safely held that although the provisions of Civil Procedure Code are not strictly applicable to the proceedings under the Ordinance nevertheless the Rent Controller has discretion to follow and apply them if he considers necessary particularly in absence of any specific provision to the contrary. The learned Rent Controller has not committed any illegality in borrowing and applying the provisions or C.P.C. while striking off the defence of petitioners.

14. The argument of the learned counsel for the petitioners that there is no provision in the Ordinance to strike off the defence of petitioners for non-production of evidence also has no force. Perusal of subsection (2) of section 13 of the Ordinance shows that the Rent Controller on receipt of eviction application from the landlord is to provide a "reasonable opportunity" to tenant to show cause against the application made by the landlord against him and on his satisfaction, he can pass eviction order. "Reasonable opportunity " is not susceptible of any precise definition and "reasonableness" has to be judged in the light of facts of each case. Generally speaking, "reasonable opportunity" will mean that no material should be used against a party without affording him the opportunity to offer explanation and to rebut it by evidence relied upon by him; to produce evidence on the relevant issues, and to, cross- examine the witnesses of his/her adversary, The question that arises in this case is as to whether "reasonable opportunity" was provided by the learned Rent Controller to the petitioners if so what would be the consequences of non-availing the saris opportunity by the petitioners. Answer to this question is available in the various order -sheets of the learned Rent Controller. The learned Rent Controller on closing the evidence of respondent No.2/landlord on 18-2-2002 directed the petitioners to produce their evidence on 19-12-2002 on which date the petitioners sought adjournment and the case was posted for 20-2-2002. Against adjournment was sought on the said date and the learned trial Court granted "last chance" to the petitioners to produce evidence and the case was posted for 27-2-2002. It is worth -mentioning that on 25-2-2002 the case was posted for 27-2-2002. It is worth-mentioning that on 25-2-2002 the case file was requisitioned by the learned Additional District Judge. On receipt of the case file on 26-3-2002, petitioners again sought adjournment. For the second time "last chance" was provided and the case was posted for 27-3-2002 on which date though the evidence of the petitioners/tenants was available but the learned counsel was not in attendance, hence the case was posted for hearing for 2-4-2002 for recording evidence of petitioners. On this date application for staying the proceedings was filed on the ground that a civil suit between the parties is pending, therefore, the proceedings be stayed. The said application was dismissed on 2-4-2002 and case was posted for 3-4-2002 for evidence of petitioners. It is worth noting that evidence of petitioners was not present on the said date also. A third "last chance" was given and case was adjourned to 4-4-2002 on which date the learned Rent Controller Was informed that the petitioners had preferred an appeal in the Court of learned Additional District Judge, therefore, case was again adjourned to 8-4-2002 for evidence of the petitioners: Petitioners did not produce their evidence in 8-4-2002 and the case was posted for 12-4-2002 on which date again the petitioners submitted application for consolidation of Cases Nos.6/RC and 8/RC. The learned Rent Controller vide order dated 12-4-2002 struck off the right of defence of petitioners/tenants and posted the case for 16-4-2002 for arguments.

15. The above mentioned factual position clearly indicates that the learned Rent Controller had not only adjourned the case) for the evidence of the petitioners for many sates and as many as three "last chances" were also provided to them, but instead of producing the evidence the petitioners in order to delay the agonies of the landlord on each date obtained adjournment on one pretext or the other. In a similar case titled as Shafqat Nasreen v. Amir Fatima (1984 SCMR 953) the august Supreme Court of Pakistan held:-- "The only ground urged by the learned counsel for the petitioner is that no opportunity was given to the petitioner to cross-examine the respondent nor she was allowed to file her affidavit in evidence with the result that her case remained undefended. This contention was raised before the learned High Court and on the basis of the record it was found that the Rent Controller had shown great indulgence in the matter to the petitioner but in spite of several opportunities given to her, first to cross-examine the respondent and then to lead her own evidence, she had failed to avail of the same. The learned Rent Controller in his order has given the details of the proceedings right from the filing of the written statement until the date of announcement of the judgment on 8-8-1983 which the learned counsel for the petitioner was unable to controvert. The judgment of the learned High Court, in the circumstances, is unexceptionable."

16. Likewise Muhammad Aslam and others v. Muhammad Yousaf (1980 CLC 467) it was held:-- "It may also be noted here that although the learned Rent Controller was not bound to follow the provisions of Code of Civil Procedure yet he secured substantial compliance with the provisions of Order XVII, rule 3 of the Code. Out of three adjournments allowed by him to enable the appellants to produce evidence, two were given to them at their request and the case was also decided by him within two months of the closing of the evidence. In the circumstances explained above, the delay of about two months in deciding the case-by the learned Rent Controller appears to be reasonable. It would, therefore, follow that in deciding the case against the appellants the learned Rent Controller, by and large, observed the provisions of Order XVII, rule 3, as interpreted in the authorities cited by the learned counsel for the appellants."

17. In the light of the above dicta laid down by the august Supreme Court of Pakistan it is held that the learned Rent Controller had provided more than sufficient opportunities to the petitioners who failed to avail the same, therefore, the learned Rent Controller could not wait for indefinite period for the tenant to produce evidence more specifically when the august Supreme Court of Pakistan and this Court has time and again stressed upon lower Courts to decide the rent cases within three months. The learned Rent Controller has therefore, rightly resorted to Order 17, rule 3, C.P.C. and struck off this defence of the petitioners.

18. In the recent past, the august Supreme Court of Pakistan while taking notice of and appreciating that finalization of rent cases take years which tantamounts of frustrate the justice, therefore, in order of curtail the delay, in a case titled as Barkat Ali v. Muhammad Ehsan and others (2001 SCMR 556) while giving guidelines to the Courts, laid down following procedure to be followed in rent cases with immediate effect:-- "(1) Affidavits of not more than two witnesses in support of the ejectment application shall be filed in the Court in addition to the affidavit of the petitioner himself in support of the contents of the ejectment petition. (2) While replying to the ejectment application the respondent shall be similarly required to submit his own affidavit and affidavit of two other witnesses in support of his affidavit-on the date fixed in the notice served upon him. (3) The parties shall be bound to produce their witnesses for purpose of their respective cross-examination on the day fixed by the Court. (4) A party obtaining the affidavits of the witnesses in support of his petition/reply would be bound to produce them in the Court for cross- examination and in case of its failure to do so their evidence shall be excluded from consideration. (5) Appeals against the interim order of the Rent Controller and resort to Constitutional jurisdiction against orders at intermediate stages arising out of the ejectment proceedings, should be discouraged. (6) The Court should take serious view of the situation when witnesses for cross examination in support of their affidavits deliberately avoid/evade appearance in Court. (7) Adjournment of ejectment petition should not be allowed except under unavoidable circumstances on an application moved by a party supported by affidavit. In such cases also adjournment should not be made for a period exceeding three days. Following the above procedure it ejectment matters appears to be necessary to achieve the goal o c expeditious disposal of a case with period of three months particularly in respect of residential tenements having regard to the decisions unanimously taken in the Chief Justices' Committee Meeting held on 26-2-2000. (8) There is need for organization and methodical arrangement of supervision and control by the High Courts over the functioning of the subordinate Courts which will be in accord with the decision reached at the Chief Justices' Committee Meeting held on 26-2-2000. The District and Sessions Judges of all Provinces would be responsible for the integrity and expeditious disposal of the cases and working of the subordinate Courts within their respective jurisdiction. "

19. This Court and the Courts below arc bound to follow the guidelines set forth by the august Supreme Court of Pakistan. When we judged the impugned orders in the light of touchstone of the above mentioned judgment, we found that the impugned orders were in accordance with law laid down by the august Supreme Court of Pakistan.

20. Another question at this juncture arises as to whether the discretion exercised by the learned Rent Controller could be questioned through writ petition, answer to this question is in negative. The impugned orders were admittedly passed in the proceedings competently pending before the learned Rent Controller. The discretion exercised in the matter does not suffer from any error of jurisdiction. In Mst. Malika Wazir v. Additional District judge and 2 others (PLD 1988 Peshawar 60) it was held:-- "Now once a matter lies within the discretion of a Tribunal and it has exercised its discretion in favour of a party. High Court would decline to interfere in Constitutional jurisdiction, where discretion exercised is not arbitrary or capricious." Likewise in Hafiz Mustajab Ahmed v. Mst. Aziz Fatima and another (PLD 1981 Lahore 583) it was held:-- "Before parting I consider it appropriate to deal with the contentions raised on behalf of the petitioner about the learned Additional District Judge not holding further inquiry and not allowing request of the petitioner for local inspection. These two matters being relatable to exercise of discretion conferred on the learned Additional District Judge by the Statute under which he was hearing the appeal can obviously be not made a ground of attack as to the validity of his orders in a Constitutional petition. "

21. In another case titled as Abdur Rahim and others v. Mir Mehtab Ahmed and others (1988 CLC 1564) it was observed:-- "The learned Rent Controller as well as the learned Additional District Judge have considered each and every point raised by the petitioner before them and thereafter they have come to a finding of fact which finding of fact cannot be interfered with in the Constitutional jurisdiction: Learned counsel for the petitioner has failed to point out any legal infirmity much less the jurisdictional defect in the impugned judgment of the learned Courts below. There is no substance in the petition which is accordingly dismissed leaving the parties to bear their own costs. However, the petitioner shall be given four months' time to vacate the premises in-question provided he continues paying rent to the landlord."

22. Another aspect of the case is that the writ petitions have been filed against interlocutory/interim order dated 12-4-2002. Their Constitutional petitions are not maintainable because the appeals against interim order are barred under section 15 of the Ordinance, which clearly indicated that there was ouster clause specifically barring appeal against interim order of the Rent Controller as only final order was amenable to appeal. The impugned orders being interim orders are not appealable under the relevant law, in such circumstances, question would arise whether such orders could be assailed in Constitutional jurisdiction? Where the law itself has not given the right of appeal against certain orders then same cannot be challenged in any other forum to gain similar object which has been barred by statute itself. It was well-settled principle that the remedy which is not directly available cannot be sought indirectly through indirect means. In this respect reliance is placed on Syed Sagheer Ahmad Naqvi v. Province of Sindh through Chief Secretary, S&GAD, Karachi and another (1996 SCMR 1165) wherein it was ruled in the following words:-- "The statute excluding a right of appeal from the interim orders in Constitutional jurisdiction. The party affected has to wait till it matures into a final order and then to attack it in the proper exclusive forum created for the purpose for examining such orders."

23. The august Supreme Court of Pakistan in Syed Qamar Ahmed and another v. Anjum Zafar and others (1994 SCMR 65) observed:-- "Where a Statute, under which the impugned order is made, itself provides the remedy, the High Court should be loathed to bypass special statute and embark upon judicial review. We feel that in the circumstances of the case the remedy of appeal was quite convenient, beneficial and effective; and the High Court should have refused to issue the writ."

24. A similar proposition came up for hearing before the Lahore High Court in Haroon Rashid v. Riaz-ud-Din and 2 others, (PLD 1997 Lahore 188) in which it was held:-- "The Legislature in its wisdom did not allow appeal from the interlocutory orders under section 15 of the Rent Restriction Ordinance, and the impugned orders are not fit enough to attract invocation of Constitutional jurisdiction of this Court."

25. Likewise in Abdur Rehman v. Haji Mir Ahmed Khan and another (PLD 1983 SC 21) it was held:-- "Instead of raising the second jurisdiction question based on the status of the property, before the lower forum (where no other similar question was in fact raised, regarding the status of the parties), and then pursuing the matter in first appeal wider scope, petitioner sought to divert the normal remedial process provided by law, and invoked Constitutional jurisdiction of the High Court. It could be exercised only on proof of non-availability of adequate remedy. This proof is not forthcoming in this case. The petitioner had a right of appeal if any final decision would have gone against him. Much can be said on the question that this mode was adopted by the petitioner because he wanted to avoid enquiry on facts (if it was needed) and "also wanted to delay the proceedings by raising piecemeal, pleas of similar jurisdiction nature--one before the proper lower forum and the other in the High Court, in its writ jurisdiction. The matter in fact got delayed because if left to be processed as provided by the Special Law of Summary Procedures governing it, the same might have ended within months before the Rent Controller and some more months in appeal. Now it has been taken nearly three years and one limb thereof is still being deleted in the superior Courts. Apart from delay the petitioner, whether intentionally or otherwise, has successfully avoided enquiry on the question of fraud and forgery

both on the rent side as also on the criminal side. Such could not be the results visualized either by Article 199 which conferred writ jurisdiction on the High Court; nor by the Rent Laws which created special forums for speedy and summary disposal of these cases."

26. Drawing wisdom from the abovementioned judgments of august Supreme Court of Pakistan, A Division Bench of this Court in "Zar Faroosh v. Sikandar Aziz and 5 others (PLD 1997 Peshawar 64)" held:-- "Where law itself had not given right of appeal against certain orders, then the same could not be challenged in any other forum to gain similar object which had been barred by statute itself. "

27. Similar view was adopted by this Court in Muhammad Daud v. Mst. Surriya Iqbal and another (PLD 2000 Peshawar 54) authored by me and Haroon Rashid v. Sh. Riaz-ud-Din and 2 others (PLD 1997 Lahore 188). Keeping in view the above discussion we are of the view that the learned Rent Controller has rightly applied the provisions of Order 17, rule 3, C.P.C., he has properly exercised his discretion and writ petitions filed by the petitioners are not maintainable. We, therefore, dismiss the same with no orders as to costs. H.B.T./754/P Petition dismissed.