1. 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.
2. Facts precisely stated are that eviction Application 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 e bad pay master and he has failed to pay monthly 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 filing 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 was 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 between 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 question 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?
3. 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 got 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 but 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 non-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.
4. On the other hand learned counsel 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 mala 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.
5. 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 appeal 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 A 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 Court, 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, appellant 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 attorney. 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 without 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 persuade 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