Present
Mr. Justice Aqeel Ahmed Abbasi.
Date of hearing : 30.05.2011 and 11.10.2011
Date of order : 17.10.2011
Appellant : M/s
Khazan Tech (Pvt Ltd.
through Mr. Muhammad Sadiq Hidayatullah, advocate.
Versus
Respondent : Syed Fayyaz Ahmed Shah
through Mr. Muhammad
Zahid Kabeer, Advocate.
O R D E R
Aqeel Ahmed Abbasi, J. Being aggrieved and dissatisfied with the order passed by the learned Additional Rent Controller Clifton Cantonment Board Karachi dated 02.12.2010 in Rent Case No.69/2010, whereby ejectment order has been passed against the appellant with the directions to hand over the peaceful possession of the demised premises in question to the respondent within 30 days, the appellant has filed instant rent appeal with a request to set-aside the impugned order and to remand the case to the Rent Controller with directions to proceed further in the matter or to pass any other order under the circumstances of the case.
2. The brief facts of the case as stated
in the memo of appeal are that respondent initiated ejectment proceeding
against the appellant on 17.8.2010, stating therein that appellant/opponent is
tenant of Office No.2/1, 1st Floor, Built-up on Plot No.147, measuring
701 sq. ft., situated at 18th Street, Phase-I, D.H.A, Karachi at a monthly
rent of Rs.40,000/- per month. It is further stated that the appellant/opponent
is defaulter in payment of rent from September 2008 and onwards, whereas the
demised premises is required for personal bonafide use by the respondent, in
good faith and for his own use and occupation.
3. Learned
counsel for the appellant argued that the impugned order is in fact an ex-parte
order as the learned Rent Controller did not issue any notice to the appellant,
whereas the report of bailiff clearly shows that staff of appellant's company
refused to accept the notice. It is further contended that the note of the
bailiff regarding service upon appellant had not been witnessed by any one and
as such the observation of the learned Rent Controller that notice has been
served, is incorrect. Per learned counsel, the matter was fixed for service before
the learned Rent Controller on 07.09.2010, on which date none appeared for the
appellant and it has not been stated in the order sheet that summons have been
served and service has been held good. Per learned counsel, the learned Rent
Controller, without holding the service as good upon the appellant directed the
appellant/plaintiff to file written statement. Learned counsel for the
appellant while concluding his arguments has prayed that the order of ejectment
passed by the learned Rent Controller for ejectment of the appellant may be set
aside and the matter may be remanded to the learned trial Court to decide the
same afresh.
4. Conversely,
the learned counsel for the respondent has vehemently opposed the appeal and
contended that the appellant is a defaulter in payment of rent from September,
2008 and onwards, whereas respondent requires the demised premises for his
personal use and occupation. Learned counsel argued that no valid ground for
setting aside the impugned order has been raised by the appellant, whereas, the
ejectment order has been passed strictly in accordance with law and after
providing complete opportunity to the appellant. It is contended by the learned
counsel that, after having received the Court notice, the appellant himself
appeared in Court and filed letter dated 7.9.2010, wherein it has been
acknowledged by the appellant that he had received notices on 28th
August 2010. Per learned counsel, it was appellant who requested for a date of
his own choice to be fixed after 15th October 2010 on the ground
that he would not be available before such date. To substantiate his
contention, the learned counsel referred to the letter dated 07.09.2010 written
by the appellant to the learned Rent Controller, which is available at page 9
of the 2nd Part of R & P of Rent Case No.67/2010. He also referred to the
signatures of appellant on Court Notice, which is available at page 3 of the 2nd
part of R & P. Learned counsel for the respondent further referred to the
case diary of the Rent Controller w.e.f. 7.9.2010 to 2.12.2010 to show that
inspite of having received the Court Notices and the case papers, the appellant
did not chose to file written statement, or to cross-examine the respondent,
accordingly, such default resulted in filing of ex-parte proof followed by an
order of ejectment. Per learned counsel, the learned Rent Controller was
justified to proceed in the manner in which the entire proceedings have been
conducted, whereby proper opportunity was given to the appellant to defend the
case in accordance with law. However, the appellant himself chose not to
controvert the contention of the respondent or to file any written statement or
reply. It is further submitted that the appellant is a defaulter in payment of
rent, whereas the respondent requires the premises for personal bonafide need
for which affidavit-in-exparte proof was also filed. Per learned counsel, since
the assertion of the respondent remained un-rebutted, therefore, the necessary
consequence and the only option available with the learned Rent Controller was
to allow the ejectment application of the respondent, as rightly has been done by
the learned Rent Controller in the instant case. In support of his contention,
learned counsel has placed reliance on the following reported cases: (i) Province of the Punjab through Board of Revenue,
Lahore and 2 others v. Muhammad Hussain and 4 others 1988 CLC 514 (ii) Mst.
Hafizan Begum v. District Judge, Attock and 2 others 1987 SCMR 1957 and (iii)
Khawaja Imran Ahmed v. Noor Ahmed and another 1992 SCMR 1152.
5. I
have heard both the learned counsel and perused the record. I have also
examined the R & P of the case with the assistance of both the learned
counsel. From the perusal of the record, it is noted that the Court Notice
dated 23rd August 2010 issued to the appellant for 7.9.2010 contains
the endorsement of bailiff dated 27.8.2010 wherein it has been stated that at
the time of service of notice the appellant was not present, whereas the staff
refused to receive such notice. There is another endorsement at the bottom of
such notice dated 8.9.2010, which contains the initials of the recipient thereon.
A letter dated 7.9.2010 duly signed by Ayyaz Ellahi i.e. the appellant is also
available on record, wherein it has been acknowledged by the appellant that
Court notices in Rent Case No.67/2010 to 70/2010 were duly received on 28th
August 2010 by the appellant. In the said letter, request for fixation of the
case after October 15, 2010 was also made by the appellant. In order to examine
the propriety of the procedure adopted by the learned Rent Controller it will
be relevant to reproduce the case diary of the Rent Controller from 7.9.2010 to
2.12.2010, which reads as follows:
"07.09.2010
Petitioner's Counsel present.
Respondent's Counsel called absent. P.O is on leave. Case adjourned to
21.09.2010 for filing of Written Statement by the Respondent.
Sd/-
A.R.C.
21.09.2010
Petitioner's Counsel present. None
present for the Respondent. Case adjourned to 05.10.2010 for filing of Written
Statement by the Respondent.
Sd/-
A.R.C.
05.10.2010
Petitioner's Counsel present. None
present for the Respondent. Case adjourned to 19.10.2010 for filing of Written
Statement by the Respondent as last and final chance.
Sd/-
A.R.C.
19.10.2010
Petitioner's Counsel present. None
present for the Respondent. P.O. is busy in official meeting. Case adjourned to
28.10.2010 for filing of Written Statement by the Respondent as last and final
chance.
Sd/-
A.R.C.
28.10.2010
Petitioner's Counsel present. None
present for the Respondent. Side of the Respondent has been closed to file
Written Statement and the Petitioner is directed to file Affidavit-in-Exparte
Proof onnext date hearing. Case adjourned to 11.11.2010 for filing of
Affidavit-in-Exparte Proof.
Sd/
A.R.C
11.11.2010
Petitioner's Counsel present. None
present for the Respondent. Petitioner's Counsel filed Affidavit-in-Exparte
Proof. Case adjourned to 02.12.2010 for exparte order.
Sd/-
A.R.C.
02.12.2010
Petitioner's Counsel present. None
present for the Respondent. Today the case was fixed for order which has been
passed on separate sheet. Case is disposed off accordingly. File be consigned
to record.
Sd/-
A.R.C."
6. From
perusal of the case diary, it is seen that after service of notices upon the
appellant, the learned Rent Controller fixed the matter for filing written
statement by the appellant on 21.09.2010, whereafter, the matter was adjourned
to two consecutive dates i.e. 5.10.2010 and 19.10.2010 for the same purpose.
However, inspite of repeated opportunities, the appellant did not to file any
written statement, whereafter the side of the appellant for filing of written
statement was closed, and the respondent was directed to file
affidavit-in-evidence in ex-parte proof. The respondent filed ex-parte proof on
the given date i.e. 11.11.2010 and the matter was adjourned to 2.12.2010 for
ex-parte order. On 2.12.2010, nobody appeared for the appellant nor any
intimation received, hence the learned Rent Controller passed the impugned
order of ejectment against the appellant.
7. It
may be observed that Cantonment Rent Restriction Act, 1963 is a special
enactment, which provides for the control of rents of certain class of
buildings within the limits of the Cantonment areas and for the eviction of
tenants therefrom and for matters connected therewith. The procedure to be
adopted to regulate the enactment has been provided under Section 27 of the
Act, whereas the extent of application of the provisions of civil procedure
code has also been defined. From perusal of the impugned order and the case
diary, it is seen that the learned Rent Controller did not adopt any summary procedure
for the disposal of the case, on the contrary, provided sufficient
opportunities to the appellant to file written statement and to defend the case
in accordance with law. It may be observed that once the appellant was served
with the Court notices and was aware of the Court proceedings, it was his duty
to be vigilant and to proceed with the matter in accordance with law. However,
from perusal of the record it has transpired that the appellant was negligent
in pursuing the legal proceedings and has willfully abstained from attending
the Court of learned Rent Controller. No one can be allowed to take advantage
of his own wrong or negligence. The appellant, who is alleging that an ex-parte
order has been passed on his back, did not file any application before the
learned Rent Controller to this effect, whereas he applied for the issuance of
certified copy of the impugned order on 18.12.2010, which reflects that he was
aware of the entire proceedings as well as passing of the impugned ejectment
order, and has deliberately avoided to contest the rent proceedings to gain
time and to raise a false plea of non-service of Court Notices.
8. From
perusal of the provisions of the Cantonment Rent Restriction Act, 1963, it is
noted that no specific procedure for conducting the proceeding by the Rent
Controller, except in section 27, has been provided, whereas extent of
application of Civil Procedure Code has been restricted to summoning and
enforcing attendance of witnesses, discovery and production of documents and
issuing of commission.
9. In
the case of Khawaja Imran Ahmed v. Noor
Ahmed and another 1992 SCMR 1152, the Hon'ble Supreme Court while examining the
applicability of provisions of CPC to the proceedings under Sindh Rented
Premises Ordinance, 1979 has held that powers of Civil Court under the provisions contained in Civil Procedure
Code, 1908, in respect of summoning and enforcing the attendance of any person
and examining him on oath, compelling production or delivery of documents,
inspecting the site and issuing commission for examination of witnesses or
documents have been given to Rent Controller under Section 20, Sindh Rented
Premises Ordinance, 1979. Other provisions of Civil Procedure Code, 1908, are
not invested in Rent Controller while dealing with an ejectment application.
10. In the case of Mst. Hafizan
Begum v. District Judge, Attock and 2 others 1987 SCMR 1957, a Full Bench of Hon'ble Supreme
Court while confirming an ex-parte ejectment order has held that since no ground for setting aside ex-parte order was
made out, the District Judge had no option but to dismiss the appeal. Rather
than doing so, set aside the earlier order against which no appeal was filed,
but appeal had been rendered and barred and there was no even application for
condonation of the delay. Appeal was accepted and the order passed by the Rent
Controller was up-held
11. In the
case of Munawar Hussain v Additional District Judge, Jhelum and 3 others 1998
SCMR 1067 the
Honourable Supreme Court while dealing with a rent matter has held that Bare perusal of order-sheets indicates that even
petitioner or his authorized attorney had not appeared before the Court on any
of the dates of hearing. Record speaks volumes about petitioner's extraordinary
negligence in persuing the case. It was obligatory for the petitioner to have
taken effective steps either for producing or summoning the evidence to support
his claim of being landlord of the house in occupation of the respondents.
Trial Court had shown sufficient indulgence and there does not appear any
impropriety or defect for ultimately closing side of the petitioner on account
of his consistent failure to produce evidence despite seeking repeated
adjournments. The trial Court could not be deemed at the mercy of petitioner or
totally helpless to await till petitioner chooses to comply with repeated
direction of producing evidence.
12. In
the instant case, it is seen that the learned Rent Controller has adopted the
legal procedure and provided complete opportunity to the appellant, whereas the
appellant, inspite of service of Court notice and complete knowledge of Court
proceedings, willfully avoided to contest the matter on merits and has
attempted to create a false ground of non-service of notice, which otherwise,
is contrary to the record of the case. These facts were not disclosed by the
appellant in the memo of appeal and have been verified by examining the R &
P of the case. Conduct of the appellant in this regard is dubious and his
assertion regarding non-service of Court notices cannot be accepted under the
facts and circumstances of this case. It will not be out of place to observe
that the tendency of tenant(s) in rent proceedings to deliberately avoid
service of Court Notices or to thwart the Court proceedings in order to gain
time has become a common feature which is required to be addressed and must be
curbed in appropriate cases.
13. In
view of hereinabove facts and the case-law relied upon by the learned counsel
for the respondent, I am of the view that impugned order does not suffer from
any factual error or legal infirmity, hence does not require any interference
by this Court. Accordingly, instant appeal being devoid of any merits is hereby
dismissed alongwith listed applications.
J U D G E