This appeal arises out of an order passed by the II Senior Civil Judge and Rent Controller, Karachi in Rent Case No. 6540/80 on an application filed by the -respondent under section 14 of the Sind Rented Premises Ordinance, 1979.
1. The respondent/landlord, a Government Officer retired on 17th October, 1966. He having been born on 5th September, 1911 attained the age of 60 years on 5th September 1971. He rented out the premises No. 165/A, Block 3, P. E. C. H. S.; Karachi, to the appellant an agreement dated 9-7-1965 for a period of three years commencing not later than 31-7-1965 at Rs. 1,000, per month. A sum of Rs.
12,000 was paid as advance rent for one year.
The agreement provided that upon the expiry of the said period the lease was renewable for such period and on such terms and conditions as may be agreed upon by the parties.
2. On Ist August, 1975, respondent wrote a letter to the appellant wherein he stated that the cost of construction of bungalows had very much increased and the bungalow in question being of oldish style would fetch him Rs. 2,000, p. m. At least and that he had couple of offers through estate agencies. He further stated that realising the fact that the appellant had during his occupancy well maintained the house and had been prompt in payment of rent, he did not find adequate courage to ask the appellant to vacate the said bungalow. He however pointed out to the appellant that if he vacates the said bungalow he could let it out to any other tenant with reasonable rent and would also receive two years advance rent. He further stated as follows:- "This will bring me decent amount, which will help me in completing the house in defence. I am so short of money that construction work is more or less standing still.
If you give me 3 years rent in advance, as a Qarz-e-Hasna. It will help me in completing my project well in time and I will give on advance rent my Defence Society's Bungalow, by which I will pay up my debts to Habib Bank and thus save myself from paying interest on it to the Bank. This saving of interest, I will consider it as if you have enhanced the rent."
The offer made by the respondent was accepted by the appellant who sent a cheque for Rs.
24,000, as advance rent for two years to the respondent alongwith his letter of 26th August, 1975.
The appellant wanted adjustment of Rs. 8,000, on account of the repairs which he had carried out and which according to him were adjustable towards the rent in pursuance of the terms agreed by the respondent. However the respondent/landlord insisted upon payment of the total sum viz. Rs.
30,000, as demanded by him by his letter of 1st August, 1975. Accordingly the appellant sent him another amount of Rs. 6,000, and thus made the total payment of Rs. 30,000.
The case of the appellant which would be discussed hereinafter, is that the lease of the bungalow was thus renewed from August, 1975, pursuant to the letter of 1st August, 1975, written by the appellant and which was accepted by the appellant and acted upon by payment of Rs. 30,000, as advance rent for a period of at least 2J years from August, 1975, to January, 1978.
3. On 15th March, 1977, the respondent sent a cheque of Rs. 10,000, to the appellant/tenant purporting to be refund of part of the "Qarz-e-Hasna" out of Rs. 30,000, received by him pursuant to the letter of 1-8-75 mentioned above. The appellant claimed that the said amount was not Qarz-e- Hasna but was towards advance future rent of the said bungalow and accordingly he returned the said cheque to the respondent. The respondent refused to receive the said letter.
4. Some correspondence thereafter followed between the parties and ultimately the respondent on 5th April, 1977, filed an ejectment case (No. 1154/7/) against the appellant, tenant in the First Court of Rent Controller at Karachi in which he sought his ejectment on the grounds amongst others, that he required the said building for his personal bona fide use and for his wife and children. The above case was filed under sec--petition 13(2) of the West Pakistan Urban Rent Restriction Ordinance, 1959. During the Pendency of the aforesaid case M. L. O. 20 was promulgated on 16th March, 1977.
The respondent/landlord thereupon filed an application, on 18-8-1977 in the Court of the Rent Controller whereby he prayed, "the Court may be pleased to dismiss the above rent case as withdrawn." The learned Rent Controller on 20th August, 1977, passed the following order:- "The withdrawal is allowed. The case stands withdrawn and dismissed as such."
5. An application thereafter was filed by the respondent before the Summary Military Court under M. L. O. 20 upon which the appellant/tenant was ordered to hand over the vacant possession of the house in question to the respondent/landlord. A revision petition was preferred by the appellant but the same was dismissed by the Martial Law Administrator, "Zone C", Karachi by order passed on 16th October, 1977, which information was conveyed to the appellant under letter of 16th October, 1977. The appellant/ tenant filed a petition before the High Court being C. P. No. D-596/77. It may be mentioned here that on 19-1-1980 Sind Ordinance, No. 1. Of 1980, known as "Military Courts (Validation of Orders) Ordinance, 1980, was promulgated, whereby order passed by a Military Court at any time on or after 16-8-1977 in any proceedings under M. L. O. 20 made by Martial Law Administrator Zone "C" shall be deemed to have been passed under Sind Premises Ordinance and any such order as referred in subsection (1) of section 2 thereof was made appealable under section 2(2) to High Court.
6. During the pendency of the above-mentioned C. P. No. D-596/77 the respondent filed another ejectment case against the above-named appellant in the Court of the First Rent Controller Karachi being Rent Case No. 2595/78 on the ground of non-payment of rent as well as personal bona fide requirement of the landlord/respondent. The appellant filed written statement in the said case and raised amongst other the plea that earlier the landlord/respondent bad filed -a similar case being R.. C. No. 1154/77 which was withdrawn by him unconditionally and it was dismissed as such. The appellant /tenant denied the allegations and contested the case on various grounds. He also pleaded that the new . Case was barred under section 14 of the West Pakistan Urban Rent Restriction Ordinance 1959. The Rent Controller after recording the evidence allowed the said application and directed the appellant to vacate the said bungalow on the ground that the same was required by the . Respondent for his own personal and bona fide use. The ground of default in- payment of rent was however rejected.
7. The appellant/tenant filed an appeal in the High Court being (Rent Appeal No. 717/80) in August, 1980. The said appeal is still pending.
8. In the meantime on 21st November, 1979, Sind Rented Premises Ordinance (XVII of 1979), came into force, repealing West Pakistan Urban Rent Restriction Ordinance, 1959. The respondent/landlord thereupon filed yet another application for ejectment of the appellant/tenant under section 14 on 3-11-80 in the VII. Court of Rent Controller at Karachi which was registered as R.
C. No. 6540 of 1980. This case was filed by the landlord on various grounds, namely:- `(i) That he was not in possession of any building owned by him.
(ii) That he was Government Officer who retired on 17th October, 1966, and that he bad attained the age of more than sixty years.
(iii) That he had sent notice on 7th September, 1980 under section 14 of the aforesaid Ordinance of 1979, as amended by Sind Ordinance No. XII of 1980, to the appellant/tenant informing him that he was required to deliver the vacant possession of, the said building within two months from the receipt of the said notice the appellant did not vacate the premises and therefore the said application had been filed.
The application was presented on 13-11-80 without having been sworn and verified on oath. Show- cause notice was issued to the appellant of the aforesaid application by the Rent Controller directing/warning the appellant/ tenant in following terms:- "To the opponent above-named whereas the above-named applicant, has made application to this Court that copy of application under section 14 of the S. R. P. O. 1979, alongwith annexures attached.
You are hereby warned to appear in this Court in person or by a pleader duly instructed on the 22 day of November, 1980, at 8 O'clock in the forenoon, to show-cause against the application failing, wherein, the said application will be heard and determined ex parte. .
Also take notice that in default of your filing an address for service on or before the date mentioned you are liable to have your defence struck out."
9. On 22-11-1980 when the case ;vas called in the morning for the first time the appellant/tenant was not present. The Rent Controller accordingly fixed the case for orders on 29-11-80 after hearing the arguments of the counsel for the respondent/landlord. On the same day however the learned Court recorded that Mr. Sabir Hussain Ansari, Advocate appeared for the tenant and made an application for adjournment on behalf of the appellant/ tenant. On the said application learned Controller passed the following order:- "Adjournment not possible as there is no justification for grant of time. However case is already fixed for order on 29-11-1980. In the mean--while he may come and inform the Court for any proceeding in the High Court."
10. On 29-11-80 appellant/tenant filed counter affidavit and the learned Controller passed the following order:- "Counsel for the parties present. Opponent counsel filed counter affidavit, fresh arguments heard.
Put off to 30-11-80 for Judgment."
11. The learned Rent Controller without holding any inquiry oral or on affidavits by his order passed on 30-11-1980 allowed the application of the respondent/landlord and directed the appellant/tenant to handover the vacant and peaceful possession of the building to the respondent/landlord within a period of thirty days from the date of the said order.
12. Aggrieved by the aforesaid order the appellant preferred appeal to this Court under section 21 of the Sind Rented Premise Ordinance, 1979.
13. Mr. Khalid Ishaque, the learned counsel for the appellant in his arguments challenged the validity and legality of the impugned order of the learned Rent Controller on the following three grounds:-
(1) that the order of the learned Rent Controller is liable to beset aside on the ground that he did not hold any inquiry and the order passed against the appellant is against the law and principles of natural justice.
(ii) that the respondent is in possession of three bungalows in the city.
(iii) that be let out the building in question to the appellant/tenant by renewal of the lease, and thus by granting fresh lease after the respondent/landlord bad retired and had attained the age of sixty years, he was not entitled to invoke the provisions of section 14 of the Sind Ordinance of 1979.
14. In order to appreciate the contentions of the learned counsel for the appellant it is necessary to determine whether the Rent Controller could pass an order without making any inquiry and/or taking evidence and is he bound to give an opportunity to the tenant to show and rebut the facts or allegations made by the respondent/landlord in the application filed under section 14 of the aforesaid Sind Ordinance of 1979. We, therefore first refer to the relevant provisions of the Sind Rented Premises Ordinance, No. XVII of 1979, promulgated on 21st November, 1979. The preamble of the said Ordinance provides that it has been promulgated to make effective provisions for regulation of relations between the landlord and tenants and protect their interests in respect of rented premises within the urban areas., Section 13 thereof reads as follows:- "No tenant shall be evicted from the premises in his possession except in accordance with the provisions of this Ordinance."
Then follows section 14 under which the application was filed for eviction by the respondent/landlord on 13-11-1980 and was registered as R. C. No. 6540/80 before VII Court of Rent Controller at Karachi and out of which this appeal has arisen. Section 14 of the Ordinance; as amended, is reproduced herein below:- "Delivery of vacant possession.-(1) Notwithstanding 'anything contained in this Ordinance or any other law for the time being in force, the landlord of a building who is a widow, or a minor whose both parents are dead or a salaried employee due to retire within the next six months or has retired or a person who is due to attain the age of sixty years within the next six months or has attained the age of sixty years, may, by notice in writing inform the tenant that he or she needs the building for personal use and require him to deliver vacant possession of the building within such time as may be specified in the notice, not being earlier than two months from the receipt thereof: Provided that nothing in this subsection shall apply where the landlord has rented out the building after he has retired or attained the age of sixty years or, as the case may be, has become widow or orphan.
(2) The landlord shall not be entitled to avail the benefit of sub--section (1) if he is in occupation of a building owned by him in any locality.
(3) Where the tenant bas failed to deliver the possession of the building under subsection (1), the Controller shall, on application by the landlord in this behalf, order eviction of the tenant from the building in a summary manner, by using such force as may be necessary."
It may be noted here that in cases other than those which are governed by section 14 the landlord who seeks ejectment of his tenant has to apply to the Controller under section 15 of the Ordinance which provides various grounds on which if the Controller is satisfied, may pass orders directing the tenant to put the landlord in possession of the premises within such period as may be specified therein.
15. The procedure for disposal of `cases which is required to be followed by the Controller is laid down by section 19 of the Ordinance. The learned counsel for both the parties extensively referred to this section which is therefore reproduced hereinbelow in extenso:- "Procedure.-(I) Where an application other than the application under section 14 has been made to the Controller under this Ordinance, he shall, unless the application is summarily dismissed by him for reason to be recorded, issue a notice to the respondent to file written reply, if any, within such period not exceeding fifteen days of the receipt of the notice.
(2) Where on the day fixed in the notice for the respondent to file written reply, it is found that the notice has been served but the respondent has failed to file his reply without any reasonable excuse the Controller may, proceed to make an ex parte order and after such order has been made the Controller shall have no power to rescind such order.
(3) Where the respondent has filed the written reply, the Controller shall proceed to receive evidence first of the applicant and his witnesses and then of the respondent and his witnesses.
(4) A party to a case under this Ordinance shall prove the evidence of his witness by producing the affidavit of such witness a copy of which shall simultaneously be supplied to the, other party and such other party shall have the right to cross-examine the witness on such affidavit and if the witness has been cross-examined the party producing the witness may re-examine him.
(5) The Controller shall, instead of formally framing issues arising between the parties, state them briefly in the judgment and shall record findings on each such issue separately."
16. Mr. Khalid Ishaque, the learned counsel for the appellant while arguing the appeal contended that the Rent Controller is required to make inquiry as there is nothing in the Ordinance which excludes the application of principles of natural justice. The learned counsel submitted that principles of natural justice are not expressly excluded 'from the proceedings in cases filed under section 14 of .The Ordinance, therefore, the Controller was bound to hear and give an opportunity to the appellant/tenant of being heard and to show cause. He relied upon Abdul Latif's case (1), where in section 66 of the Punjab Land Revenue Act which is reproduced hereinbelow came up for consideration:- "A statement of account certified by a Revenue Officer shall be conclusive proof of the existence of an arrear of land revenue, of its amount and of the person who is the defaulter."
It would be seen that inspite of the language of the section it was held by the hon'ble Court:- "It is therefore manifest that before the operation of the machinery for realization of arrears the author concerned must decide whether there is arrears or not."
The Public Accountants Default Act or the Revenue Recovery Act did not contemplate anything like hearing in a Court of justice and that no procedure was prescribed as to how the accounting party has to be heard in connection with the allegation made against him, yet the Hon'ble Supreme Court cited with approval the following observations made in the case of Spackman v. Plumstead (2):
(1) PLD 1962 SC 384(2) (1.885) 10 A C 229 "No doubt, in the absence of special provisions as to how the person who is to decide is to proceed, the law will imply no more than at substantial requirements of justice shall not be violated. He is not a Judge in the proper sense of the word; but he must give the parties an opportunity of being heard before him and stating their case and their view. He must give notice when he will proceed with the matter and he must act honestly and impartially and not under the dictation of some other person or persons to whom the authority is not given by law. There must be no malversation of any kind. There would be no decision within the meaning of the statute if there were anything of that sort done contrary to the essence of justice. But it appears to me to be perfectly consistent with reason that the statute may have intentionally omitted to provide for form, because this is a matter not of a kind requiring form, not of a kind requiring litigation at all, but requiring only that the parties should have an opportunity of submitting to the person by whose decision they are to be bound such consideration as in their judgment ought to be brought before him. When that is done, from the nature of the case, no further proceedings as to summoning the parties, or as to doing anything of that kind which a Judge might have to do, is necessary."
The Hon'ble Supreme Court in the above-mentioned case also referred to the cases of Dina Suhrab Katrak (1) and Messrs Farid Sons Ltd. (2), and the following observations from the opinion of Hon'ble Mr. Justice S. A. Rehman (as he then was) were quoted to point out the absolute necessity of compliance with the requirements of principles of natural justice. The observations case reproduced hereinbelow:- "This Court laid it down as a rule in Chief Commissioner, Karachi v. Messrs Dina Suhrab Katrak that the maxim: audi alteram partemNo man shall be condemned unheard' applies to judicial as well as administrative bodies, specially where the proceedings taken may affect the person or property or other rights of the parties concerned in the dispute. Even if, therefore, the proceedings before the Chief Controller were neither strictly judicial nor even quasi-judicial in character, the principle of natural justice embodied in the above maxim could be called in aid by the appellants."
The learned Judges while dealing with the facts of that case observed: "The action favoured of inquisition and a determination of guilt and clearly requirements of a notice coupled with an opportunity of hearing in advance were attracted to the case."
17. Relying upon the above authoritative observations, the learned counsel for the appellant submitted that as in Abdul Latif's case referred to above, there is nothing either in section 14 or section 19 of Sind Rented Premises Ordinance, 1979, militating against the grant of an opportunity to the defaulter tenant who allegedly failed to deliver possession of the building under subsection (1) of section 14 to the landlord, of showing cause, defending himself and of being heard. The learned counsel in fact based these submissions by quoting the observations to this - effect made by the Hon'ble Mr. Justice Fazal-e-Akbar in Abdul Latif's case at page 394 of the above report. I may here, before proceeding further in the matter, would like again to refer to the show-cause notice itself which was issued by the learned Controller to the appellant/tenant and which has already been reproduced above in paragraph No. 8.
(1) PLD 1959 SC (Pak.) 45(2) PLD 1962 SC 394 It would be seen that the show-cause notice issued by the learned Controller itself expressly contemplated that the appellant was to appear before him and was entitled to show cause against the application under section 14 of the Ordinance filed against him.
18. It is now well settled, that compliance with principles of natural justice is a condition which must be read as a part of every statute dealing in the proceedings where any person or body of persons is empowered to take decision after post facto investigation into facts which would result in the consequences affecting the person, property or other rights of any other person and that in the absence of any express words in the enactment A giving such power excluding the application of the principle of natural justice implies that the power is to be exercised in accordance with the principle of natural justice. Thus an order affecting the right of a party cannot be passed by the Controller without an opportunity of hearing being given to the tenant against whom a case is filed under section 14 of the Sind Ordinance, 197), as this principle is to be read in every enactment in the absence of the provisions to the contrary. Reference may also be made here to the case of Commissioner of Income-tax v. Fazalur Rehman (1) and Province of East Pakistan v. Nur Ahmed (2).
Mr. Khalid Ishaque, the learned counsel for the appellant also referred to a case from the Indian Jurisdiction A. K. Gopalan v. State of Madras (3), where the learned Judges while dealing with the application of principle of natural justice and its requirements observed as follows :- "Mr. Nambiar urged that the word `law' in Art. 21 should be under--stood, not in the sense of an enactment but as signifying the immutable and universal principles of natural justice--the jus naturale of the civil law-and that the expression "procedure established by law' meant the same thing as that famous phrase "due process of law" in the American Constitution in its procedural aspect. Numerous American decisions were cited to show that the phrase implied the basic requirements of, (1) an objective and ascertainable standard of conduct to which it is possible to conform, (2) notice to the party of the accusation against him, (3) a reasonable opportunity for him to establish his innocence, and (4) an impartial tribunal capable of giving an unbiased judgment. Mr. Nambiar conceded that these requirements might have to be modified or adapted to suit the nature of the particular proceeding and the object it had in view, as for instance, in a case of preventive detention, previous notice, which, might result in the person concerned going underground might be dispensed with. Learned counsel insisted that these requirements, being the very core of the principles of natural justice which transcended all State-made laws, must be substantially complied with by any law governing the process of deprivation of life or personal liberty, subject, of course, to any express provision in the Constitution sanctioning the irrelaxation or dispensation in any case or class of cases. He also appealed to the Preamble of the Constitution as the guiding star in its interpretation to support his thesis that, in view of the democratic Constitution which the people to give themselves guaranteeing to the citizens certain Fundamental Rights which are justiciable, the provisions of Part III must be construed as being paramount to the legislative will, as otherwise the so-called Fundamental Right to life and personal liberty would have no protection against legislative action, and Art. 13(2) would be rendered nugatory."
(1)PLD1964SC410(2)PLD1964SC451
(3) A I, R 1950 SC 27
19. We have already discussed above that the principles of natural justice are not excluded and the appellant/tenant was entitled to be heard and to show cause against the case filed under section 14 of the Ordinance by the respondent/landlord for his ejectment. I am fortified in my conclusions reached above by the judgment of a learned Single Judge Mr. Justice Sajjad A.I Shah of this Court in Azad Bin Haider v. Adam Khan PLD 1981 Kar. 225wherein the learned Judge after extensive discussion of the law held:- it is my considered opinion that since section 14 does not specifically bar inquiry by the Controller and right of hearing of the tenant it is incumbent upon the Controller to hold inquiry and hear the tenant in a manner to be evolved by him to make the hearing consistent with the principles of natural justice. What procedure is to be adopted by the Controller while disposing of the application under section 14 particularly when the Ordinance excludes application of procedure prescribed under section 19 to the application under section 14 is for him to decide and may perhaps vary from case to case depending upon the circumstance of the case."
20. We now consider section 19 of Sind Ordinance which lays down the procedure before the Controller. We have already reproduced the above section in para. No. 15 above. It would be noted that subsection (1) of section 19 makes certain provisions for disposal of applications other than those made under :section 14 of the said Ordinance. This is followed by subsection (2) which provides for cases where summons are issued to the respondent to file written reply and procedure followed if the reply is not filed, while subsection (3) provides that where the respondent has filed the written reply the Controller shall receive evidence on behalf of the applicant and then that of the respondent.
It is however significant to note that subsection (4) of section 19 which neither lays down that its provisions are restricted to applications made under section 15 only nor excludes the cases from its purview which are filed under section 14-A reading of subsection (4) shows that "a party in a case under this Ordinance" shall prove the evidence of his witness by producing the affidavit of such witness a copy of which is required simultaneously is to be supplied to the other party and that such party has a right to cross--examine 'the witness on such affidavit and also provides for re- examination of the witness. Departure is thus expressly made in subsection (4) whereby unlike subsection (1) of section 19 the words used "a party to a case under this Ordinance" in unambiguous language makes the procedure laid in subsection (4) applicable to every case "under this Ordinance" and cases filed under section 14 are no exception as these cases shall also be covered by the phrase "a case under this Ordinance".
Thus in my view not only the principle of natural justice are applicable to cases filed under section 14 of the aforesaid Ordinance but by virtue of C subsection (4) of section 19 of procedure laid therein has to be followed even in cases filed under section 14 inasmuch as the same are undisputedly "cases under this Ordinance".
We have also seen above that in this present case the notice issued to the tenant/appellant called upon him to appear and to show cause against the application filed under section 14 of the Ordinance. Accordingly when the tenant/appellant appeared in compliance with the said notice he would be entitled not only to show cause by submitting explanation in reply to the application but where he challenges the allegations made in the application against him and show cause against it, it will be the bounden duty of the Controller ,to hold inquiry in the questions of facts pleaded by the landlor and challenged by the tenant and to give fair opportunity to the tenant t offer his defence and in doing so to cross-examine the applicant/landlord. I am fortified in my aforesaid view by judgment reported as Haji Bahauddin v4 Government of West Pakistan (1), where at page 492 the hon'ble Judge's observed as follows:- "12. Mr. Nasim Hasan Shah, who appeared for the respondent, attempted to argue that section 22 of the Act required only an opportunity to be given for the submission of an explanation in writing and did not prescribe an inquiry, even is allegations of fact charged against the President, were repudiated by him. It would, however, be against the principles of natural justice to allow a power to Government to remove a person from president-ship of the Committee, on allegations of fact, which he had solemnly repudiated, without affording him an opportunity to establish his defence Section 22, on the view contended for by Mr. Nasim Hasan Shah, would tend to make this enactment an engine of oppression rather than of reform of local bodies. In our view, if question of fact are involved in charges which are challenged by the person concerned, it becomes the bounden duty of the Government to hold an inquiry into them, giving a fair opportunity to the person complained against, to offer his defence, if he is so advised and the necessity for such an inquiry would become doubly re-inforced where circumstances exist suggesting bad faith."
21. Mr. Khalid ishaque the learned counsel for the appellant has also relied upon the case of President v. Shaukat A.I (2), in support of his submis--sions that the case filed against the appellant/tenant not being of interlocutory nature the appellant was entitled to cross-examine the respondent/landlord and that this opportunity having been denied to him by the Controller in the proceedings which are substantive in nature in misconception of law, the impugned order is vitiated by serious error of law and procedure which resulted in grave prejudice to the appellant.
The observations of the Hon'ble Supreme Court of Pakistan, recorded in the opinion of Mr. Justice Hamoodur Rehman as Chairman of the Supreme Judicial Council are reproduced hereinbelow: "The principle of law, however, has, in our view, been correctly laid down in the Lahore decision that in proceedings which are not of an interlocutory nature the admission of affidavit evidence `is subject to the proviso (which is an important safeguard for the truth) that in case the opposite- party controverts the allegations by filing a counter- affidavit or demands the attendance of the deponent for his cross-examination, the party relying on the affidavit must produce him an the witness-box and if the deponent fails to submit to the cross-- examination, the affidavit shall lose all its force as a probative piece of evidence in the case and cannot be acted upon."
(1) PLD 1958 Lah. 486(2) PLD 1971 SC 585 I may also refer here to a judgment of the Hon'ble Supreme Court in the case of Khairun Nisa v.
Muhammad Ishaque PLD1972SC25where at page 31 the Hon'ble Supreme Court cited with approval the following principle: "It is a settled law that it is the bounden duty of a party personally knowing the whole circumstances of the case to give evidence on his behalf, and to submit to cross-examination. His non-appearance as a witness would be the strongest possible circumstances going to discredit the truth of his case."
"Written statement cannot be the exhibits in the case without the person who filed the same being examined in the Court. The statements made in the written statement are not on oath. They are only verified and therefore, they cannot be treated as evidence in the case."
It is important to note here that the ejectment application filed by the respondent/landlord in the Court of Controller is signed and verified by the respondent but it has not been sworn on oath. This application on the part of the respondent/landlord though does not vitiate the application or the proceedings but it cannot be treated as a piece of evidence and thus cannot be treated as an exhibit as laid down by the Hon'ble Supreme Court in the case of Khairun Nisa v. Muhammad Ishaque referred to above.
22. Mr. Akhtar .Mahmood the learned counsel for the respondent has not seriously disputed the submissions of the learned counsel for the appellant that the Controller was bound to make an inquiry and to comply with the principles of natural justice but his submission is that sufficient inquiry was made by the Controller and that substantial compliance with the rule of natural justice had been made. As noted hereinabove, the respon--dent/landlord sought ejectment on the ground that he retired on 17th October, 1966, and had attained the age of more than sixty years and that he is not in possession of any other building. He also pleaded that he had sent a notice on 7th September, 1980, under section 14 of the Ordinance as amended by Sind Ordinance, XII of 1980, to the tenant/appellant requiring him to deliver vacant possession of the building within two months of the receipt of the said notice and the said notice was duly delivered on 9-9-80. According to the learned counsel another notice dated 8th September, 1980, was also sent by the respondent/landlord through his Advocate by way of abundant cautionwhich was also delivered to him. In reply to the aforesaid application the appellant/tenant however filed a counter-affidavit whereby .He expressly challenged the pleas raised by the respondent on the following grounds amongst others:-
(i) that the respondent retired on 17th October, 1966. His date of birth being 15th September, 1911, and having attained the age of sixty years on 15th September, 1971, the respondent's case was not covered by section 14 of the Ordinance;
(ii) that the respondent rented out the bungalow in .Question to the appellant for 2 --years as from August, 1975, after he retired and had already attained the age of sixty years;
(iii) that the respondent had fallen in need of funds in 1975, for the construction of his bungalow in Defence Society. At the request of the respondent/landlord Rs. 30,000, were paid as advance rent by the appellant and the .Lease of the bungalow was thus renewed for 2 --years from August, 1975 to January, 1978. According to the learned counsel for appellant in effect this would amount to granting a new lease. The bungalow in question according to him was rented out afresh by the respondent to the appellant after he had retired and had attained the age of sixty years and thus his case is excepted by the Proviso substituted by amendment to section 14 by the Sind Ordinance No. XII of 1980;
(iv) that the respondent was in occupation of another bungalow at least upto 17th April, 1979, and thus he was not entitled to claim possession in view of subsection (2) of section 14 of the said Ordinance of 1979. Apart from the affidavit filed by the appellant in reply to the applica--petition of the respondent, be referred to the letter dated 1=8-75 in which the respondent asked for Rs. 30,000, as advance rent to 'help him in completing the house in Defence,' in order to substantiate his plea that the respondent/ landlord was in occupation of building owned by him in Karachi;
(v) that the application under section 14 was barred on various legal pleas raised in the reply affidavit filed pursuant to the show-cause notice.
1t may be observed that the above pleas raised by the appellant amounted to challenging the grounds raised by the respondent in the application under section 14 of the aforesaid Ordinance, 1979, and accordingly the Controller was bound to hold inquiry and give an opportunity to the appellant to establish the 'pleas raised in defence. A mere perusal of the application made under section 14 or the affidavit in reply filed by the appellant tenant ,I could not amount to holding an inquiry and compliance of either principles of natural justice or the provisions of subsection (4) of section 19 of theRented Premises Ordinance of 1979.
22. Mr. Akhtar Mahmood, the learned counsel for the respondent however argued that under subsection (3) of section 14 where the tenant has failed to deliver possession of the building under subsection (1), the Controller on the application filed by the landlord shall order the eviction of the tenant from the said building in a summary manner. According to the learned counsel in view of this provision the inquiry which was required to be made was to be summary in nature and that in the circumstances of the case according to him there was no occasion for the respondent to make any grievance in this appeal on that account. The submissions of the learned counsel are based on the words "summarily" used in subsection (3) of section 14. In my opinion as discussed above these words do not exclude the right of the appellant,/tenant to show-cause and/or entitle the Controller to ignore the procedure laid down in subsec--petition (4) of section 19 which governs every case filed under the Ordinance of 1979, by, any party nor the application of principles of natural justice is excluded as discussed above. This finds support also from the case reported as Davis Manufacturing Co. Ltd. v. Fahn (1967) 2 All E R 1274It was an interpleader's case where a decree holder had obtained a judgment against one Mr. Fahn for goods sold and delivered to him.
A writ of execution was issued pursuant to .Which the Sheriff took possession of the goods at a particular flat. The wife of the judgment-debtor (Messrs Fahn) made an affidavit saying that some of the furniture belonged to her on hire purchase and the other was her own property. In the interpleader proceedings summons were taken out and served upon the execution-creditor. On these facts while considering the jurisdiction to determine the question summarily Lord Denning held:- "The summons came on before the Master on April 12. Mrs. Fahn, the claimant, made an affidavit saying that some of the furniture belonged to her on hire purchase. Other of the furniture was her own property, having been bought by her outright or on hire--purchase fully paid. The master adjourned the summons for an answer. It came on again on April,
28. On the hearing of the summons it was open to the master `summarily' to determine the question (see R. S. C., Order XVII, rule 5(2); but 'summarily' there does not mean that he can determine it straightaway out of hand. It means only that he can determine it himself without directing an issue (see Re: Tarn. The usual practice of the master when he 'summarily' determines the question, is to give a special appointment at which evidence can be taken orally and the witnesses can be cross-examined; and at which the relevant documents can be produced. In this case the solicitor for the execution- creditor asked for a special appointment; but the master said that it was only a fortnight before the end of term. He could not fit in any special appointment. So he would deal with it straightaway. He did so. He made an order in favour of the claimant, the wife. The order was that 'the claim be allowed and the sheriff withdrawn from possession of the goods seized by him under the writ of fi.
Fa.'
The execution creditor appeals from that order of the master. He contends that the master ought to have given a special appointment and ought not to have determined the matter out of hand as he did. I fear that the master was in error in deciding it straightaway as he did. When a wife puts in a claim to all the furniture in a house, the execution creditor can properly ask that she gave her evidence on oath and be cross-examined; and that there should be discovery of documents in order to test whether her claim is good. The master should give a special appointment for the purpose. So I think that the master's order must be set aside and a special appointment must be made."
23. Mr. Akhtar Mahmood, learned counsel, lastly submitted that even if it is found that the respondent had number of houses he was entitled to exercise his right to make a choice as to the house in which be would like to live himself and that this was a matter within the prerogative of the landlord and his discretion and that the law does not give either to the appellant or to the Controller any power to determine where the landlord should reside. For this proposition he relied upon the case of Subu Mal v. Kika Ram 1973 SCMR 185.I am however, afraid that rule laid down in the said case which arose out of proceedings under section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959, is not applicable to a case under Sind Rented Premises Ordinance, 1979, wherein under subsection (2) of section 14 a landlord is expressly held not to be entitled to avail the benefit of subsection (1) of the said section if he is in occupation of a building owned by him (1) 1973 SCMR 185 in any locality. The Controller is thus required to give a finding if such a question is raised before him by a tenant. .
24. Having come to the conclusions as stated above the question remained as' to what order should be passed in the circumstances of the case. Section 21 of the Ordinance of 1979, provides that the appellate Court after perusing the record of the case and giving the parties an opportunity of being heard and if necessary after making such further inquiries by himself or the Controller, make an appropriate order which shall be final. In view of the fact that no proper inquiry was made by the Controller and no findings are given in the impugned orders on the points involved, it is a fit case which should be remanded to the Controller.
25. Accordingly the appeal is allowed and the case is remanded to the Controller for disposal in accordance with the law in the light of the observa--tions made above. I would like to clarify that since the matter has been remanded any observation in the judgment on merits shall not be binding upon the learned Controller while deciding the case. The appeal was disposed of by short order passed on 30-12-1980 and the above are the reasons for the same.