2018 M L D 355
[Balochistan]
Before Abdullah Baloch, J
JAFFAR KHAN---Appellant
Versus
Syed MOEAD AHMED ---Respondent
F.A.O. No.66 of 2015, decided on 30th October, 2017. Qanun- e-Shahadat (10 of 1984) ---
----Art. 129---Constitution of Pakistan, Art. 10-A---Balochistan Urban Rent Restriction
Ordinance (VI of 1959), S.15---Ejectment petition ---Right to cross -examination ---Scope ---
Closure of right to produce evidence ---Effect ---Tenant contended that he was not given fair
opportunity to lead evidence ---Landlord submitted that tenant failed to cross -examine as well
produce his own witnesses ---Validity ---Article 10 -A of the Constitution guaranteed a
valuable right to a party to challenge veracity of a witness ---If opportunity of cross -
examination was declin ed to the party, such evidence as a general rule was not legally
admissible ---Contesting parties must undergo test of cross -examination for ascertaining truth
or otherwise of their claims failing which adverse assumption could be drawn against them
under A rt. 129 of Qanun- e-Shahadat, 1984--- Maxim " audi alterm partem" would be
applicable to the case of the tenant in circumstances ---High Court remanded the matter with
direction to provide full opportunity to the parties to produce their respective evidence ---First
appeal was partially allowed.
Muhammad Shah v. The State 2010 SCMR 1009 ref.
Mumtaz Hussain Baqri for Appellant.
Iqbal Ahmed Kasi and Inamullah Kakar for Respondent.
Date of hearing: 20th October, 2017.
JUDGMENT
ABDULLAH BALOCH, J. ---This Firs t appeal under Section 15 of the Balochistan
Urban Rent Restriction Ordinance -VI of 1959, is directed against the judgment and decree
dated 24th April, 2015 (hereinafter referred as, "the impugned judgment and decree")passed
by the learned Civil Judge -III/ Rent Controller, Quetta (hereinafter referred as "the Rent
Controller"), whereby accepted the application of respondent and directed the appellant to vacate the premises and hand over the vacant possession to the respondent.
2. Brief facts arising from th e instant appeal are that the respondent instituted an eviction
application against the appellant/tenant before the Rent Controller with the averments that the
applicant owns a house/bungalow situated at VIP bungalows Jinnah Town, Quetta whereas,
the appel lant has been living in the said premises as a tenant since November, 2011. The
applicant/respondent in his eviction application has further submitted that the applicant lent
the said house to the appellant in pursuance of oral agreement through property dealer and the parties agreed that the tenant would pay monthly rent of Rs.10,000/ - per month payable till
15th of every succeeding month, however, the rent was increased to Rs.16,000/ - per month in
the year 2013, as such, the tenant/appellant continuously paid the said rent till February, 2014, but thereafter has failed to pay rent till the filing of instant application. It is further submitted by the respondent/applicant that in the March, 2014 the respondent/appellant declined to pay the monthly rent to t he applicant without any rhyme and reasons and
respondent / appellant is still denying payment of the rent and becomes a defaulter for non-payment of rent being bad paymaster.
3. It is next submitted by the respondent / applicant that the said Bungalow is required
by him for personal bona fide use of his sister, being recently married and having no personal
house to reside over there, in this regard, the respondent / applicant severally approached the
appellant, but he was reluctant to vacate the possession of the house in question.
4. The application of the respondent/ applicant contested by the appellant on legal as
well as on factual grounds, wherein vehemently denied the claim of respondent / applicant.
5. Out of proceedings of the parties the learned tr ial Court framed as many as following
issues: --
1. Whether the applicant/landlord is in bonafide need of tenement in question
situated at VIP bungalows Jinnah Town Quetta?
2. Whether the tenant/ respondent is bad paymaster and has committed default in paym ent of rent of Rs.16000/ - per month of house in question since March
2014 up to date?
3. Whether applicant is entitled for the relief claimed for?
4. Relief?
6. Thereafter, the respondent/ applicant produced its witness AW -1 Umar Shah on 3rd
December, 2014 and he was cross -examined by the counsel of the appellant while the second
witness of the applicant/ respondent was on first time appeared on 24th February, 2015 and for the reasons that the learned counsel for applicant/respondent was not in attendance, as such, his statement for cross -examination was adjourned for 27th February, 2015, however,
on 27th February 2015, once again the counsel for appellant was rema ined absent, while the
right of the cross -examination of appellant on AW -2 was closed by learned Rent Controller,
thereafter, the appellant was directed to produce its witnesses. On 04th March, 2015, the applicant appeared and his statement was cross -exami ned by the counsel of the appellant and
the case was adjourned for 10th March, 2015 for cross -examination of RW -1, however, on
the next date of hearing, the RW -1 was not present on account ailment of his relative taken
him to Karachi and after two adjournm ents i.e. 18th March, 2015 and 26th March, 2015 and
finally on 31st March, 2015 the right of defence was closed, however, an application for recalling of aforesaid order was submitted by counsel for the appellant, which was allowed subject to cost of Rs.2,000/ - vide order dated 13th April, 2015 and the matter was adjourned
for 21st April, 2015 and on the said date, the learned counsel for the appellant was remained absent, as such, the right of the appellant was closed and one sided arguments were heard and
judgment was announced on 24th April, 2015, wherein the application of the respondent was
accepted and the appellant was directed to vacate the possession of the said Bungalow in question.
7. The learned counsel for the appellant contended that the impugned judgment suffers
from misinterpretation of law; that the appellant was not provided fair opportunity to cross -
examine the witnesses of the respondent; that the learned trial Court decided the matter in an
arbitrary and slipshod manner; that the appellant was condemned un -heard (Audi Alteram
Partem); that the appellant was never defaulted for nonpayment of rent and the rent was never increased from Rs.10000/ to 16000/ -; that the premises is not required by the respondent for
its bona fide personal use, but with malafide intention just to vacate the said premises and to rent out the same to another tenant on a charmable rent, that the appellant was not given opportunity of defence to produce witnesses and rebut the contention of the respondent/ applicant; that the impugned judgment further suffers from illegalities and irregularities and
not sustainable and liable to be set aside.
8. Conversely, the learned counsel for the respondent vehemently opposed the
arguments of the learned counsel for the appellant and contended that the appellant was failed
to pay the rent despite of clear cut orders of Rent Controller and this Court too; that sufficient
opportunities were provided to the appellant, but the appellant was failed to appear and cross -
examine the witnes ses of the respondent as well as failed to produce its own witnesses in
rebuttal; that after proper appreciation of record, the learned Rent Controller has rightly allowed the application of the respondent, which is not at all open for interference by this
Court and the appeal is liable to be dismissed.
7(sic). Heard the learned counsel for the parties and perused the record minutely. In view of the above, the proceedings carried out by the learned Rent Controller. Whether the appellant was given fair oppor tunity of trial as envisaged under Article 10A of Constitution of Islamic
Republic of Pakistan, which reads as under: --
"{10A. Right for fair trial.---For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.}"
8(sic). Reliance is placed in the case of Muhammad Shah v. The State 2010 SCMR 1009, the relevant portion is reproduced as under: --
"Evidence means examination -in-chief, cross -examination and re -examinat ion if any,
as provided under Art. 132 read with Arts.2(c) & 71, Qanun- e-Shahadat, 1984."
9. In view of the above judgment, the cross -examination was a valuable right guaranteed
by the legislature to party to challenge veracity of a witness, and party was entitled to cross -
examine the witness to adduce the facts in support of his defence from said witness and to observe veracity and credibility of witness that the witness who entered in the witness box, would state whatever had to say on oath; and then subj ect to cross -examination constitute a
complete statement made by witness, if opportunity of cross -examination was declined to
party, such evidence as a general rule of evidence was not legally admissible against party, contesting parties must undergo test of cross -examination for ascertaining truth or otherwise
of their claims failing which adverse presumption could be drawn against them under Art.129, Qanun- e-Shahadat, 1984.
In view of the above provision of Constitution of Islamic Republic of Pakistan and
judgment of Hon'ble Apex Court, prima facie it appeared that the appellant was not afforded
proper opportunity to cross -examine the witnesses of the respondent/applicant as well as he
was deprived from right of his defence, which was also closed in an ar bitrary and slipshod
manner.
10. In the above circumstances, the universal maxim of "audi alteram partem" would be
applicable to the case of appellant.
11. For the foregoing reasons, without touching the merits of case, the appeal filed by the
appellant is partly allowed and the impugned judgment and decree dated 24th April, 2015
passed by the learned Rent controller, being ridiculous, perverse and in share violation of law, is hereby set aside and the case is remanded to the learned Rent Controller with th e
direction to provide full and fair opportunities to the parties to lead evidence and cross -
examine the evidence brought on record pro and contra than decide the matter expeditiously
within a period of four months.
MQ/165/Bal Appeal allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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