2005 PLP 749 (CLC)

This I.C.A. proceeds against the judgment dated 5-4-2004 of a learned Single Judge, in Chamber, of this Court whereby W.P.179 of 2004 filed by respondent No.1 was allowed. Learned counsel for the appellant contends that by virtue of section 16 of Punjab Urban Rent Restriction Ordinance, 1959, a Rent Controller is bound by the provisions of C.P.C. in the matter of calling and production of witnesses. The precise contention is that a Rent Controller cannot allow a party to call a witness who is not mentioned in a list which has to be filed within seven days of framing of the issues. Also relies upon the case of Mst. Musrat Bibi and 2 others v. Tariq Mehmood 1999 SCMR 799.

2. Learned counsel for respondent No.1 on the other hand supports the impugned judgment with the contention that in the first instance provisions of C.P.C. are not applicable and in the second, in view of the facts and circumstances of this case, the learned Rent Controller could not have proceeded to disallow the respondent to lead evidence or to refuse to record witnesses present in Court.

3. We have examined the writ petition record. We find that on 22-5-1999 the respondent No.1 filed an application for ejectment of the appellant from a house located in Multan urban area. We further found that along with this ejectment petition a list of witnesses was appended. The case was put up before a learned Rent Controller on 22-5-1999 who called for office report and the office reported that apart from several other documents a list of witnesses is appended. Notice was issued to the appellant. He proceeded to deny the relationship of landlord and tenant between the parties. A preliminary issue was accordingly framed on 15-10-1999. On 26-10-1999, an application was filed by respondent No.1 for summoning the witnesses mentioned therein. It appears that on the date fixed for evidence immediately after framing of the issue, some application was filed and proceedings started for disposal of the same. On 26-1-2000 another application was filed by the petitioner seeking permission to deposit the expenses for the said witnesses which were duly mentioned in the list already filed by the respondent. Then there is yet another application for permission to deposit the expenses for summoning the witnesses. On 14-3-2001 the learned Rent Controller noted that the witnesses are entered in the list of witnesses and they be summoned. On 15-4-2003, A.W.4 Nasir Ahmad Baig, Waseeqa Navees was present and his examination-in-chief was recorded. The witnesses were not cross-examined which was reserved and they were produced by the respondent No.1 on 21-6-2003 and were present in Court for cross-examination when the objection was raised that since the list has not been filed within seven days of settlement of the issues mentioning names of the said witnesses, their statements cannot be recorded as they could not have been called by the Court. Vide order dated 17-9-2003 the learned Rent Controller allowed the said application and proceeded to exclude the evidence of the said witnesses already recorded by him in the form of examination-in-chief.

4. We have examined the said order and we are fully convinced that the learned Rent Controller did not care to go through his own record while passing the said order. Otherwise, he would have found that a list of witnesses was filed along with ejectment petition itself and further that the witness were allowed to be summoned after observing that the names are included in the list so filed.

5. Now coming to the contention of the learned counsel for the appellant, the provisions of C.P.C. are not applicable to the proceedings before a learned Rent Controller. So far as section 6 of the said Ordinance is concerned, which has been enacted to empower a learned Rent Controller to enforce attendance of witnesses, there is no doubt in our mind that this provision is to be read with reference to the provisions in the C.P.C. for summoning of witnesses. The said condition embodied in rule 1 of Order 16, C.P.C. cannot at all be read into section 16 of the said Ordinance. Be that as it may, it is apparent on the face of the record that the respondent had in fact filed a list of witnesses along with the ejectment petition. This fact was in the notice of the office and was duly reported to the learned Rent Controller when he issued notice to the appellant in the said ejectment petition. So far as the said judgment of the Honourable Supreme Court in the case of Mst. Musarat Bibi and 2 others v. Tariq Mehmood 1999 SCMR 799 is concerned, in the first instance the matter arose out of a civil suit covered by the provisions of C.P.C. and in the second ratio of the judgment is that provision of rule 1, Order 16, C.P.C. have been made to ensure that parties have notice as to what evidence is to be led against them. In the present case even assuming that provisions of Order 16, rule 1, C.P.C. are applicable, it cannot at all be said that appellant can claim any prejudice. There is no denial that the witnesses summoned and recorded in Court were duly mentioned in the list filed by the respondent along with his ejectment petition.

6. Learned counsel for the appellant then tried to argue that the learned Single Judge did not give a chance to his client to file a written statement. Nothing turns on it, as the appellant was on notice in the writ petition and his learned counsel put in appearance pursuant to the said notice and argued the case. His contentions are duly noted in the impugned judgment.

7. Learned counsel for the appellant then proceeded to object that had he been allowed to file written statement he was to raise an objection to the competency of the person who had filed the writ petition. The precise contention is that a special attorney who filed the writ petition had no authority to do so and had not been appointed in accordance with law covering a Company registered under the Companies Ordinance, 1984. Learned counsel for respondent No.1 states that the special attorney who filed the writ petition was duly constituted as an Attorney by the Company. We further find that this objection has already been taken in the written statement filed by the appellant before the learned Rent Controller and since this question which involves a factual determination, will be resolved during the course of said case which is still pending. We may note that I.C.A. is continuation of Constitutional jurisdiction. We find that the Rent Controller passed an order which on the face of it is not only illegal but is unjust and he has proceeded to deprive the respondent of his right to lead evidence in violation of law and particularly without even reading his own file. We are, therefore, not at all inclined to interfere in the exercise of said jurisdiction when the order of the learned Single Judge is manifestly proper and just. The I.C.A. is dismissed with costs. The counsel fee for the respondent is fixed at Rs.5,

000. H.B.T./A-362/L I.C.A. dismissed.