' FAISAL ARAB, J.--- The deceased father of the petitioner, namely Shaikh Muhammad Younus, was the owner of the premises bearing Tenement No, SR 9-61, 3/3 Moore Street, Frere Road, Karachi, who had rented out the same to the predecessor-in-interest of the respondents namely, Shaikh Muhammad Hussain. After the death of the petitioner's father in 1984, the petitioner filed Rent Case No,315 of 1984 seeking eviction of the tenant on the grounds of default and, personal bona fide need. Through an administrative order dated 13-11-1997 the Rent Case was transferred from the Court of Senior Civil Judge/Rent Controller-IV, Karachi South to the Court of Senior Civil Judge/Rent Controller-I, Karachi South. By that time, the Court of Senior Civil Judge/Rent Controller-IV, Karachi South had already given 6-12-1997 as the date for final arguments. On the date of hearing i,e, 6-12- 1997 no diary was written by the transferee Court. However, on 7-2-1998 the case was called before the transferee Court. The petitioner's counsel was present, but the respondents' counsel was called absent. The matter was then, put off to 3-3-1998 for final arguments. On 3-3-1998 case was again put off to 10-4-1998 as the Court was vacant. On Court being vacant the matter was adjourned on several dates i,e, 10-4-1998, 13-7-1998, 12-8-1998, 12-9-1998 and 10-10-1998. The diary sheets of all these dates were signed by the Bench Clerk of the transferee Court. On 31-10-1998 when the case came up for hearing the new Rent Controller had assumed charge. The diary sheet of said date reflects the presence of the counsel for both the parties. As parties had already filed their written arguments, the matter was put off to 17-11-1998 for announcement of judgment. On 17-11-1998 also counsel for both the parties were present but on account of the fact that the Rent Controller was on leave the matter was adjourned to 19-11-1998. On this adjourned date as well counsel for the parties were present but since the judgment could not be written for want of time, the matter was adjourned to 28-11-1998. On the said date, the matter was again adjourned to 23-1-1999 and then to 17-4-1999 for announcement of judgment. All the diary sheets from 10-10-1998 to 17-4-1999 show the presence of counsel for both the parties. The last four diary sheets of 19-11-1998, 28-11-1998, 23- 1-1999 and 17-4-1999 show that the matter was adjourned under the signatures of the Rent Controller. On 17-4-1999 the judgment was announced in presence of counsel for both the parties.
The eviction application was allowed and 60 days time was granted to the respondents for handing over vacant peaceful possession of the rented premises to the petitioner. The respondents then filed First Rent. Appeal in this Court and simultaneously filed an application under section 12(2), C.P.C. Before the Rent Controller for setting aside eviction order dated 17-4-1999 on the plea of fraud and misrepresentation. The First Rent Appeal was dismissed by this Court on 15-1-2001 being time-barred and so also the Leave to Appeal by the Supreme Court was dismissed vide order dated 3-11-2008. As the application under section 12(2), C.P.C. Was pending before the Rent Controller, it was observed by this Court and by the Supreme Court also that let the same be decided by the Rent Controller. The application under section 12(2), C.P.C. Was then heard and dismissed by the Rent Controller on 31-1-2009. Feeling aggrieved by the dismissal of section 12(2), C.P.C. Application, the respondents preferred First Rent Appeal before District Judge, Karachi South, which was allowed by the Additional District Judge-V, Karachi South vide its judgment dated 20-4- 2009 against which the petitioner has filed the present Constitutional Petition.
2. The Rent Controller while dismissing the application under section 12(2), C.P.C. Based her findings on the facts that the counsel for the respondents was present when the matter was being adjourned from time to time and so also on the date when judgment was announced, therefore, there was no legal justification for filing application under section 12(2), C.P.C. However, the appellate Court in the impugned judgment held that as the allegations made in section 12(2) application required recording of evidence and the other connected applications were also pending for disposal when application under section 12(2), C.P.C. Was decided, the order of the Rent Controller was reversed and the matter was remanded back to the Rent Controller for framing of the issues on section 12(2), C.P.C. Application and for recording of evidence with the directions to decide other pending applications as well.
3. Counsel for the petitioner contended that it is not at all necessary that in every case where application under section 12(2), C.P.C. Is filed, the same is to be decided after framing of issues and recording of evidence whereas the counsel for the respondents, on the other hand, argued that the facts of the case are such that application filed under section 12(2), C.P.C. Could not have been decided unless issues are framed and evidence is recorded.
4. While entertaining application under section 12(2), C.P.C. The first and foremost thing which is to be examined is whether the application comes within the scope of the provisions of section 12(2), C.P.C. As determined by the judicial pronouncements of the Superior Courts. Once this aspect is examined by the Court and in case it is held that it falls within the scope of the provisions of section 12(2), C.P.C. Then the next thing that is to be examined is whether the plea of fraud or misrepresentation or want of jurisdiction can only be decided after A evidence is recorded or the application under section 12(2), C.P.C. Can be summarily decided on the basis of available record without going into the long process of recording evidence. In case the controversy cannot be resolved without recording evidence then after framing of issues opportunity to the parties is to be 'given to record evidence but before taking any other step it is to be examined whether the application under section 12(2), C.P.C. Was entertainable under the provisions of section 12(2), C.P.C. On the basis of the principle laid down by the judicial pronouncements of the Superior Courts.
5. Coming to the case in hand, it is evident from paragraph 6 of the supporting affidavit to application under section 12(2), C.P.C. That the matter was fixed before the Court of Senior Civil Judge/Rent Controller-IV, Karachi South on 6-12-1997 but before that date the Rent Controller on 17-11--1997 sent the case file to the Court of Senior Civil Judge/Rent Controller-I, Karachi South in compliance of the transfer order of District Judge dated 13-11-1997. In paragraph 7 of supporting affidavit of section 12(2), C.P.C. Application it is also stated that on 20-12-1997 counsel for the respondents inquired from the Court of Senior Civil Judge/Rent Controller-IV, Karachi South about the case and he was informed that the case has been transferred to the Court of Senior Civil Judge/Rent Controller-I, Karachi South. It is also stated in the affidavit that only from the diary sheets of the Rent Controller the respondents carne to know that eviction order has been passed and that all diary sheets from 3-3-1998 to 10-10-1998 were signed by the Bench Clerk of the Court of Senior Civil Judge/Rent Controller-I, Karachi South. The other grievance of the respondents in the supporting affidavit is that while transferring the Rent Case, there was no intimation to them about transfer of the case from the Court of Senior Civil Judge/Rent Controller-IV, Karachi South to Senior Civil Judge/ Rent Controller-I, Karachi South.
6. No doubt it is evident from the diary sheets that on several occasions the matter was adjourned under the signatures of the Bench Clerk as the Court was either vacant or Presiding Officer was on leave but the fact remains that the diary sheets of 31-10-1998, 19-11-1998, 28-11-1998, 23-1-1999 and 17-4-1999 are signed by the Rent Controller himself and all these diaries clearly show the presence of the counsel for both the parties. There is no specific denial on the part of the respondents in the supporting affidavit to the application under section 12(2), C.P.C. That on these dates their counsel had no knowledge of fixation of the case. The transfer of the case to the Court of Senior Civil Judge/Rent Controller-I, Karachi South has been admitted in paragraph 6 of the supporting affidavit of 12(2) application, hence the proceedings that culminated in the eviction order were well within the knowledge of the respondents' counsel. In the circumstances, after eviction order was passed, there was no other remedy left with the respondents except to file appeal, challenging the merits of the eviction order. The respondents did avail right of appeal but unfortunately belatedly which was, dismissed by this Court in First Rent Appeal as barred by time. The Leave to Appeal against such dismissal was dismissed by the hon'ble Supreme Court. Thus, the right to file application under section 12(2), C.P.C. Was not available to the respondents in view of the fact that they had been contesting the proceedings and their counsel was present on five dates of hearing when the Rent Controller adjourned the case and finally decided eviction application taking into consideration the written arguments already placed on record. The application under section 12(2), C.P.C. Was, therefore, liable to be dismissed summarily being not maintainable without framing of the issues and recording of evidence. Thus, there was no legal infirmity in the order of the Rent Controller while dismissing the application under section 12(2), C.P.C. By the Rent Controller, which was reversed by appellate Court without any legal justification. In this view of the matter, there is no need to go into any other question raised by the resoondents' counsel. This petition is, therefore, allowed and the impugned judgment passed by the Additional District Judge-V. Karachi South is set aside and that of the Rent Controller stands restored.