' This second appeal has been filed by the landlord against the order dated 23-10-1977 of the learned Additional District Judge, Rawalpindi, whereby he accepted the tenants' appeal and set aside the order passed by the learned Rent Controller on 26.4-1977 for their ejectment from the respective portions in their possession of House No, 550, situate in Street No, 12, Mohallah Mohanpura, Rawalpindi.
2. The facts of this case in brief are that the appellant, leased out four portions of the house, of two rooms each, to each of the respondents. He filed four separate ejectment petitions against them and appended a plan of the house with each petition showing the portions to be got vacated from the tenants. The ground taken for the ejectment in all these cases was the same, that the appellant's son Capt. Muhammad Afzal Khan, had retired from the Army; that he would occupy the house with his family and do business at Rawalpindi. The respondents resisted the ejectment petitions. They filed written statements through Sh. Abdur Rashid, Advocate, which completely tally with one another and raised an identical plea to the effect that the appellant merely want to enhance the rent.
3. Only one issue regarding self-use was framed by the learned Rent Controller in all the four cases.
It is evident from the original record that on 29-1-1977, the appellant and Sh. Abdur Rashid, Advocate, made a joint statement, before the learned Rent Controller, that as the dispute related to the same house and the nature of cause of action was also the same, the four causes may be consolidated. On the basis of this statement, the learned Rent Controller on the same date passed an order for consolidation of the cases. These proceedings are borne on the file of the ejectment petition relating to respondent No,
1. In fact, all further proceedings were recorded in this file. The order regarding consolidation was also entered in the other files which were put up alongwith the case of respondent No, 1.
4. The petitioner examined his son Capt. Muhammad Afzal Khan, who is a retired Engineer of Pakistan Army, and one Baqir Ali. He also appeared in the witness-box as his own witness. The respondents' evidence comprised of the depositions of respondent No, 4 (R. W. 1), and respondent No, 3 (R. W. 2). Evidence on their behalf was closed by their learned counsel. The learned Rent Controller accepted the appellant's contention that the house was required by him for the residence of his son, who would reside therein with his family, and carry on the automobile business at Rawalpindi. Through a single order passed by the Rent Controller on 26-4-1977, all the respondents were ejected from the respective portions of the house, in their possession.
5. The respondents filed an appeal and took up the stand that the procedure adopted by the learned Rent Controller was against law and that the evidence recorded in one case could not be read in other cases. They relied only Malik Aman v. Haji Muhammad Tufail (1). The findings of the learned Rent Controller that the house was required by the appellant for the use of his son, were also assailed by them. The learned Additional District Judge who was seized of the appeal, through a very brief and sketchy judgment came to the conclusion that due to the consolidation of these cases, the respondents were not provided with full opportunity to defend themselves. He also made a cursory observation that the respondents' evidence was not convincing to prove that he really required the house for personal use Consequently, he accepted the appeal and set aside the ejectment orders. The appellant who ably agrued his case himself submitted that the ruling in Malik Aman's case did not apply to his case, as the facts of that case were quite different from the one in hand. He contended that no prejudice was caused to the appellant by consolidation of the ejectment petitions as they had ample opportunity to lead evidence. He referred to Khadim Mohyuddin v. Rehmat All (2), to argue that the Rent Controller acts in a quasi-judicial capacity and not as a Court, the nature and mode of enquiry is let to him. There was no illegality in disposal of the four ejectment petitions through consolidation. He also questioned the propriety of the observations of the learned Additional District Judge that the house was not required by the appellant for personal use.
6. The learned counsel representing the respondents, on the other hand, argued that the appellant's case was hit by the law as laid down in Malik
(1) PLD 1976 Loh. 1446 (2) P 1. D 1965 SC 459 Aman v. Haji Muhammad Tufail and urged that due to the consolidation, the respondents did not have proper opportunity to put up their defence and that the procedure adopted by the learned Rent Controller was violative of the principles of natural justice. He further argued that each of the four tenements of the house in dispute, in respective possession of the respondents, under section 2(a) of the Rent Restriction Ordinance, is a building, and in case of separate trial of the ejectment petitions, the respondents could have shown that one of such tenements was sufficient to meet the requirements of the appellant. In the submissions of the learned counsel, the consolidation worked to the prejudice the respondents. On merits, the counsel referred to the testimony of the appellant, wherein he stated that the wife of his son is a lady doctor and that no arrangement for his clinic was made as yet, and, as there were thirteen rooms in the house, it would be set up in one or two rooms thereof. It was urged that the intention to use a part of the house as a clinic militated against the bona fide of the appellant that he required the house for personal use. The fact that the appellant's son did not acquire any business premises, in Rawalpindi, was another factor counted upon by the learned counsel to question the appellant's good faith.
7. Before considering the various contentions of the parties, it appears appropriate to examine Malik Aman's case referred to in the impugned judgment and also relied upon by the learned counsel for the respondents. In this case there were seven ejectment petitions and as many as three issues were framed in each case. The evidence of both the parties was recorded in one case but it was mechanically copied in the other six cases. Though the issues were such that each tenant could have adduced independent evidence in support of his case yet the witnesses were not examined or cross-examined separately and it was therefore, held:- " There were as many as three issues on merits, relating to reconstruction, damage and enhancement of rent. There is no doubt that whole of the property was to be reconstructed according to the respondent, but as to whether any damage had been caused and rent was sought to be enhanced by the respondent in respect of each and every property in occupation of respective tenants could be determined by recording evidence separately in all these cases. It is possible that in the case of one of the appellants Issue No, 2 with regard to damage might be proved while in the case of others it was not proved. Similarly, Issue No, 3 with regard to enhancement of rent might be proved in case of one or two and in all other cases it might not be proved if evidence was recorded separately."
' Under these circumstances, it was observed, if the evidence was recorded separately then the patties concerned might have brought different material on the record to prove their respective contentions and that, therefore, it could not be said that the appellant's case was not prejudiced.
The tenants' appeal was thus, accepted.
8. In the instant case the contents of the four ejectment petitions are the same and the requirement of the house for the residence of his son, is the sole ground taken up by the appellant in all the 'petitions. The respective written statements of the respondents are also identical and as observed above, they were represented before the learned Rent Controller by the same counsel. It was after recording his consent that the four petitions were consolidated. By his statement dated 14-4-1977, he closed the evidence on behalf of the respondents and further requested that it may be read in all the cases. The common issue framed in these petitions was whether the appellant required the disputed premises for personal use of his son. The respondents had full opportunity to cross-examine the appellant's witnesses and to lead evidence in rebuttal. They were, thus, not prejudiced in any way by consolidation of the ejectment petitions. It has been held by the Supreme Court, in Khadim Mohyuddin's case that the Rent Controller while performing his functions under the Rent Restriction Ordinance, does not act as a Court and the parties have no right to insist on production of evidence which they desire to produce in support of their case. While examining the nature of enquiry, held by the Rent Controller, the Supreme Court observed:- ' The power thus conferred on the Controller would appear to be purely executive. Then subsection
(3) of section 13 says that before putting the landlord in possession of the tenanted premises the Controller should be "satisfied that the claim of the landlord is bona fide". But there is no express mention for any enquiry by the Controller. If the word "satisfied" imports the necessity of an enquiry, even then it cannot be said that in holding such enquiry he will be bound by any particular procedure."
9. It is obvious that the consolidation of the ejectment petitions was not against any of the provisions of the Rent Restriction Ordinance. Even otherwise the main object of consolidation is to avoid the possibility of conflicting decisions when the same dispute between the same parties is determined by two different Courts of concurrent jurisdiction and to eliminat the multiplicity of litigation when such parallel disputes are heard by the same Court. There was marked similarity in the subject-matter of the four petitions. The consolidation was thus quite appropriate for disposal o these cases. The instant case is thus, distinguishable and is not hit by the ratio decidendi of Malik Aman's case.
10. A passing reference has also been made in this report to an unreported judgment in Transfer Application No, 239/C/75, but the decision and the principle of law formulated thereby, however, do not rest on this unreported judgment. The respondents themselves consented to the hearing of the ejectment petitions jointly and thus waived of their right of separate trial, which was not a matter of public policy. In Maxwell on the Interpretation of Statutes, 12th Edn. At page 326 it has been laid down:- "Everyone has a right to waive and to agree to waive the advantage of a law made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy."
11. Under section 13(2) a Rent Controller is bound to give a reasonable opportunity to the tenant of showing cause against the ejectment petition. The term "reasonable opportunity" is not susceptible of any precise definition and "reasonableness" has to be adjudged in the light of the facts of each case. But without attempting to be exhaustive, speaking generally, 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 adversary. It cannot be said that these requirements were not fully complied with in the respondents' case. On this score too the consolidation neither contravened the provisions of the Rent Restriction Ordinance nor any principle of natural justice. The objection of the respondents' learned counsel in this respect is without any substance.
12. The respondents' arguments resting on the definition of the term "building" is also not well founded. They did not raise any plea in their respective written statements that one tenement or for that matter a part of the house is sufficient to meet requirements of the appellant. Even in the first appeal, they did not take this stand. It is, therefore, not open to them to urge this point for the first time in the second appeal and argue that the joint trial worked to their prejudice as they were deprived of the opportunity to raise objection that a part of the house sufficed for self-occupation.
Moreover, I have examined the plan of the house from the record of the learned Rent Controller. The holding is so constructed that in my view it will not be possible for the appellant to share accommodation with some one else.
13. As regards the attack on the bona fide personal use on the ground that two or three rooms were to be used as a clinic by the wife of the appeal lant's son, it is to be seen that the appellant did not make any positive assertion as to the user of the part of the house as a clinic. It was in cross- examination that the appellant stated that no arrangement for the clinic was yet made and simultaneously he hinted at the possibility of utilization of one or two rooms of the house as a clinic.
This assertion hardly warrants an inference against the appellant's good faith. Similarly, non- acquisition of any business premises by the appellant's son in Rawalpindi, is also not destructive of the appellant's claim of bona fide requirement. Keeping in view the long life of the litigation which the proceedings under the Rent Restriction Ordinance, unfortunately, endure, the appellant's son could not be expected to shift to Rawalpindi; acquire some - business premises for himself, a clinic for his wife and wait idly for eviction of the respondents.
14. The learned Additional District Judge did not discuss the evidence on the question of self-use while awarding a verdict against the appellant in this behalf. I have gone through the entire evidence on the record. The appellant himself appeared in the witness-box. His statement is Corroborated by the testimony of his son Capt. Muhammad Afzal, A. W. 2, and Baqir Ali, A. W.
3. The appellant could not have done anything more. The only allegation levelled against him was that he wanted to increase the rent but it is in evidence of the appellant that four rooms of the house in dispute which were voluntarily vacated by other tenants have been lying vacant and were -not leased out by the appellant. The respondents hopelessly failed to establish that the appellant merely wanted to increase rent. The learned Rent Controller, therefore, justifiably came to the conclusion that the house in question was required by the appellant in good faith for the residence of-his son.
15. As a result of the above discussion, this appeal is accepted with costs, the order passed by the learned Additional District Judge is set aside and that of the learned Rent Controller restored. The respondents shall hand over the vacant possession of the house in dispute to the appellant, within two months.