2011 Y L R 2012
[Quetta]
Before Muhammad Noor Meskanzai, J
Haji AMANULLAH ---Appellant
Versu s
Haji JAVED and another ---Respondents
F.A.O. 153 of 2009, decided on 30th July, 2010.
West Pakistan Urban Rent Restriction Ordinance (VI of 1959) ---
----Ss. 13 & 15 ---Ejectment proceedings through attorney ---Counsel for tenant made
request before the Rent Controller and sought time for production of tenant to record his
statement, which request was acceded to, but despite various adjournments tenant failed
to appear before the Rent Controller ---Whole proceedings were conducted through
attorney appo inted by the tenant and it was not known as to why tenant had not got
recorded his statement himself ---Seeking time for recording his statement by the tenant
without filing any affidavit, did not seem to be reasonable and rational ---Act of the tenant
to ga in time, not only lacked bona fide, but smacked mala fide ---Rent Controller after
appraisal of material available, had recorded an exhaustive judgment by dilating upon
each and every aspect of the matter ---Appeal against judgment of the Rent Controller
being meritless, was dismissed, in circumstances.
Munir Agha for Appellant.
Shahid Javed for Respondents.
Date of hearing: 7th May, 2010.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J. ---The instant appeal has been directed against
the judgment dated 16 -11-2009 passed By Civil Judge -II-cum-Rent Controller, Quetta
whereby eviction application filed by respondent No.1 was accepted with direction to
hand over vacant possession of shop in question to respondent No.1.
Facts precisely stated are that eviction Applicat ion No.19 of 2007 filed in the
Court of District Judge Quetta which was made over to Civil Judge -II/Rent Controller
Quetta. It was the case of respondent No.1/applicant that he is owner/landlord of the shop
in dispute bearing No.5 situated at Masjid Road, Quetta. It was further averred in the
application that respondent i.e. appellant is tenant at the monthly rent of Rs.500 payable
on 1st of every succeeding month. Grounds for ejection were that appellant is a bad pay
master and he has failed to pay monthl y rents of the shop since December, 2006.
Applicant approached the appellant for the due rent against him there he came to know
that respondent No.1 has sublet the shop to respondent No.2 without permission of the
applicant. Moreover, the disputed shop was also required in good faith for personal use
and occupation of the son of applicant who is stated to be jobless for starting business for
garments in the said shop because appellant has got no other shop in the vicinity to start
such business. After filin g of application, respondent filed the rejoinder and disputed the
claim, raised certain objection and relationship was also disputed. It seems that the case
was decreed ex parte on 9 -4-2008. Being dissatisfied with the said judgment F.A.O.
No.35 of 2008 wa s filed in this Court which was allowed vide order dated 17 -4-2009 and
the case was remanded to the trial Court. After remand of case by this court, trial Court
framed following issues: --
(1) Whether there exist no relationship of tenant and landlord betwe en the applicant
and respondents?
(2) Whether respondent No.1, has committed default, by failing to pay monthly rent
since December, 2006?
(3) Whether the shop in question has been subletted by respondent No.1 to respondent
No.2?
(4) Whether the shop in qu estion is required to applicant for bona fide use and
occupation of his son?
(5) Whether the applicant is entitled for the relief claimed for?
(6) Relief?
After framing of the issues respondent/applicant produced AW -1 Muhammad
Azeem Butt and AW -2 Muhammad Ali Butt. On failure of appellant to record his
statement before the Court the application was disposed of vide impugned order by
granting the eviction application. The learned counsel for appellant submitted that in fact
appellant is at Dubai and has go t its business there. It was further submitted that though
Court did not refuse to record the statement of attorney yet it was thought advisable to
record statement of appellant himself. An opportunity was granted to appellant to record
his statement bu t on account of non -availability of air tickets he could not attend the
Court. It was contended with vehemence that opportunity to record statement of appellant
was not fairly afforded to appellant. Hence the judgment impugned herein suffers for
want of no n-provision of fair opportunity of evidence. Ultimately it was requested that
the case be remanded back to the trial Court with direction to provide opportunity
for recording of the statement of appellant.
On the other hand learned coun sel for the respondent seriously opposed the said
contention and submitted that in fact appellant wants to linger on the matter on one
pretext and the other, appellant was provided ample opportunity but appellant voluntarily
failed to avail the same with m ala fide faith just to delay the matter. The learned counsel
for respondent was of the view that appellant has disputed the relationship and also has
filed civil suit for declaration of the title. In such circumstance the request for remand of
the case is against the principle of natural justice, hence he requested for dismissal of
appeal.
I have heard the learned counsel for the parties and perused the available record.
At the very outset it may not be irrelevant to mention here that though in memo. of ap peal
various grounds have been agitated yet during course of arguments the learned counsel
confined himself only to one ground i.e. an opportunity to record his statement. I have
given my anxious thought to the request so made and analyzed legal situation . Record
reflects that on 18 -8-2009 counsel for respondent/appellant made a request before trial
Court and sought time for production of appellant to record his statement which was
acceded to. On the next date of hearing appellant failed to attend the Cour t, hence another
opportunity was allowed. On next date of hearing though the case could not be proceeded
with on account of strike by the Bar Council but appellant was not in attendance,
therefore, the case was adjourned to 14 -9-2009. On the said date, app ellant failed to
appear, therefore, the trial Court closed the side of respondent (appellant). The whole
proceedings were conducted through attorney appointed by the appellant but it is not
known why appellant opted to record his own statement instead of a ttorney. The affidavit
along with the rejoinder reflect the same have been filed by the attorney Khalilullah, there
is no affidavit filed by appellant himself. In such circumstances it can easily be gathered
that seeking time for recording his statement wi thout filing any affidavit does not seem to
be reasonable and rational. The act on the part of appellant appears to be one for gaining
time, hence not only lacks bona fides rather smacks mala fides. In these state of affairs I
have not been able to persuad e myself to subscribe the view point of learned counsel for
appellant. The trial Court after proper appraisal of material available has rendered an
exhaustive judgment by dilating upon each and every aspect of the matter, hence I see no
merit in the appeal which is dismissed with no order as to costs.
H.B.T./29/Q Appeal dismissed.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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