This order shall dispose of the instant appeal (S. A. O. No. 270 of 1979) and as well as S. A. O. No. 271 of 1979.
2. The facts giving rise to these two appeals are that the appellant, Sheikh Abdul Hamid, owns two shops. One of these shops was let out by him to the respondent in the present appeal, namely, Hakim Abdul Wahid while the other was leased out by him to the respondent in the other appeal, namely, Muhammad Siddique. The appellant filed separate applications against them for their eviction from the said shops alleging that he had not been paid rent from November, 1976. The monthly, rent in each case was Rs.
60. It was plead--ed by the respondent (tenant) in each case that he had tendered rent by means of money order but the same was not received by the appellant. On this, identical issues were framed in the two cases and the evidence recorded in one case was a verbatim copy of the evidence recorded in the other case. The Rent Controller, who heard the two ejectment applications, found that both the respondents had committed default in the payment of rent and, therefore, their ejectment was ordered by him. Although he had made separate orders in this behalf, there was no difference in the two orders except in regard to the names of the respondents.
3. Feeling aggrieved by the orders of the learned Rent Controller, the respondents filed separate appeals. It was contended by them that "there has been no trial in the eye of law" and that respondents were "seriously prejudiced by the proceedings recorded in a mechanical fashion". This plea was upheld by an Additional District Judge who disposed of the two appeals. His relevant observations read thus :-- "(3) A bare glance of the record pertaining to both the cases clearly evinces that the evidence in both the cases was taken down once and a common judgment was written inasmuch as a carbon copy of the judgment was placed in this case.
(4) In case of Muhammad Younis v. State PLD 1953 Lab. 321 it was laid down that writing of a common judgment and copying of the evi--dence is illegal and in violation of the provisions of law embodied in sections 137 and 138 of the Evidence Act. Similarlylin Nur Elahi v. State PLD 1966 SC 708 August Supreme Court disapproved the pro--cedure whereby evidence of a common witnesses was recorded only once and their statements were read out in the other case. Likewise in Abdul Wahid v. State 1968 P Cr. L J 776 where the evidence of Handwriting Expert who was a common witness in two cases and whose original deposition, was placed on the record of the other ease through a carbon copy ; the procedure adopted had invali--dated the trial and re-trial was ordered. Still in another case Qilandar Khan v. The State PLD 1971 Pesh. 119 the statement of common witnesses were recorded once only and in one case and the carbon copies thereof were placed on the record of the other cases and it was held that procedure adopted was illegal. Similar dictum of law was laid down in 1977 P Cr. L J 1078.
(5) It will thus be seen that the procedure adopted by the learned trial Court was not warranted by law. The impugned judgment is therefore not sustainable is law because of the patent illegality as indicated above ...............................
Resultantly, he accepted the appeals, set aside the order of eviction passed against the respondents and remanded the cases for re-trial and fresh decision.
4. Being dissatisfied with the orders of the learned appellate authority, the appellant (landlord) has filed the two appeals mentioned in the beginning.
5. It was not disputed by the learned counsel for the appellant that the statements of the witnesses of both the parties in one case were recorded by the learned Rent Controller in the file of that case and then those very state--ments were copied verbatim in the file of the other case without subjecting the witnesses to fresh examination and cross-examination qua the other case. It was, however, contended by him that since the respondents' counsel bad agreed to the procedure adopted by the learned Rent Controller it was not' open to the- respondents to take exception to the said procedure. In this con--nection he invited my attention to Jainab Bibi Saheba v. Hyderally Sahib and three others (1 L R 43 Mad. 609He also cited Ahsanul-Haq etc. v. Abdul Rahim 1979 SCMR 338) to contend that even if there was any irregularity in the proceedings held by the learned Rent Controller that did not justify the striking down of his orders unless the irregularity had resulted in some prejudice to the respondents. In regard to the authorities cited by the learned Additional District Judge in support of the impugned order, it was maintained by the learned counsel for the appellant that all those authorities related to criminal cases and were, therefore, not attracted to the instant cases which are of civil nature.
6. While replying to the arguments of the learned counsel for the appellant, it was urged by the learned counsel for the respondents that by not allowing the respondent in each case to cross- examine the appellant's witnesses whose evidence was used against him he (respondent) was denied the right of hearing and, therefore, the order passed against him was not sustainable.
Referring to the provisions of subsection (2) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, hereinafter referred to as the Ordinance, learned counsel for the respondents maintained that the order of eviction could not be passed against the respondents unless a reasonable opportunity was given to them to show cause against the ejectment applica- -tions and since such an opportunity was not afforded to each respondent, the orders of eviction impugned herein were violative to the said provisions of law. In this connection, he relied on tire aforesaid case of Nur Elahi and Malik Aman v. Haji Muhammad Tufail (PLD 1976 Lab. 1446
7. Admittedly, the evidence appearing on the file of one of the two cases before me is the verbatim reproduction of the evidence recorded in the other. This shows that in one case the evidence was recorded by examining and cross-examining the witnesses produced therein and then the evidence so recorded was copied in the other. It is, however, not known as to which is the case wherein the evidence was first recorded. In other words, it is not possible to single out the case which was properly heard. I am, therefore, constrained to hold that both the cases were not tried in a regular manner.
8. According to subsection (2) of section 13 of the said Ordinance the respondent in each case was entitled to "a reasonable opportunity" to defend the ejectment application filed against him. Each respondent should, therefore, have been permitted by the Rent Controller to cross-examine the witnesses whose evidence was read against him and also to produce his own evidence in rebuttal thereof. This was not done in the case of the respondent in whose case the evidence recorded in the other case was copied. Thus, the trial of the cases in hand was not in accordance with the said provisions of law.
9. As for the plea raised by the learned counsel for the appellant that the respondents had agreed to the procedure adopted by the learned Rent Controller and had thus waived their right referred to above, I am unable to agree with him. There is no statement by the respondents or their counsel agreeing to the evidence of one case being copied in the other. In the case of Ma. Zainab Bibi Saheba, which was relied upon by the learned counsel for the appellant, the parties had expressely consented to the reading of evidence recorded in one case as evidence in the otter which is not true of the cases before me. Moreover, in the cited case the parties were the same but in the cases in hand there were different respondents before the learned Rent Controller. The case of Mst.
Zainub Bibi S.1:eba, therefore, being distin--guishable on facts, cannot be made use of by the appellant.
10. As regards the cases of Muhammad Younis, Nur Elahi, Abdu! Wahid, Qilandar Khan and Alam Sher and 4 others v. The State relied upon by the learned Additional District Judge, I agree with the learned counsel for the appellant that they related to criminal matters but in the case of Nur Elahi following observations were made by B. Z. Kaikaus, J. (as he then was) which apply not only to criminal cases but also to civil cases :- "The law is that every criminal proceeding (and in fact every civil pro--ceeding) is to be decided on the material on record of that proceeding and neither the record of another case nor any finding recorded therein should effect the decision. If the Court takes into consideration evidence recorded in another case of a finding recorded therein the judg--ment is vitiated."
Even if the authorities cited by the learned Additional District Judge are held to be having no bearing on the cases before me, the view taken by him is supported by the dictum in the case of Malik Aman which too related to rent cases.
11. By the judgment delivered in the case of Malik Aman, seven appeals arising out of an equal number of ejectment cases were disposed of. While dealing with those cases, the learned Rent Controller did not record evidence in all the cases. Evidence of both the parties in one case was recorded and the same was copied verbatim in the other six cases. In some of the cases carbon copies of the statements of certain witnesses were produced while in remaining, statements of all the witnesses were copied verbatim showing that the said witnesses were not examined or cross- examined independently in those cases. Whatever statements they made in one case they were mechanic--ally copied in all other cases as if they were the statements made by them in those cases. This procedure was not approved of by this Court as it was violative of the provisions of clause (iv) of subsection (2) of section 13 of the ordinance which require that before a tenant is ejected he shall be given a reasonable opportunity to show cause against his ejectment. The observations made in this behalf read as follows :- "(7) However, the main question to be seen in the present cases is; as to whether by following the procedure as mentioned above any prejudice has been caused to the interest of the appellants; and whether as such the procedure so adopted is not against the principle of natural justice? The statutory provision as contained in section 13(2)(iv) of the Rent Restriction Ordinance lays down that a landlord who seeks to evict his tenant should apply to the Controller for a direction in this behalf; and if the Controller after giving the tenant a reasonable opportunity of showing cause against the appellant is satisfied that the building or rented land reasonably and in good faith is required by the landlord for the reconstruction of a building on the site, and the landlord has obtained the necessary sanction for the said re-construction from the Municipal Committee, then he may make an order directing the tenant to put the landlord in possession of the building. The question which arises for consideration is as to how to attain satisfaction which can enable the Controller to pass any order as required by the provision referred to above. It is admitted that more than one witness was examined by the respondent landlord as well. As by the appellants to prove their respective contentions.
The learned Controller has, however, recorded evidence in one case only and has copied down verbatim the same in all other cases, without giving opportunity to all the appellants to examine or cross-examine the witnesses in their cases. This has resulted in grave prejudice to the case of the appellants.
(8) The Controller, according to the relevant provision as referred to above, has to be satisfied in respect of each and every case indepen--dently and in context of the evidence produced in relation thereto. In the present case the issues, as mentioned above, show that if evidence is recorded separately then different material may be brought on record by the parties concerned in order to prove their respective contentions. The Controller has to be satisfied in context of such material and evidence before passing any order. Since no material was allowed to be brought on record, except by one of the appellants, therefore, it cannot be said that case of all the appellants has not been prejudiced otherwise. It appears that on the basis of the evidence recorded in one case all the cases have been decided. It is apparently against the principle of natural justice and the orders passed by the Courts below in this behalf cannot be sustained in law."
Malik Aman's case were set aside and fresh trial of all the ejectment cases were ordered.
12. As for the contention of the learned counsel for the appellant that the order of ejectment assailed before the learned Additional District Judge could not be set aside due to an irregularity of procedure unless it had caused prejudice to the respondents it is to be pointed out that the view expressed by this Court in Malik Aman's case, vide observation quoted above, was that when the witnesses are not independently examined and cross-examined in each case it results in grave prejudice. Since the witnesses in the cases before me were not so examined and cross-examined I am unable to agree with the learned counsel for the appellant that the procedure adopted by the learned Rent Controller in relation to the said cases had not caused any prejudice to the respondents.
13. Now, what is left to be considered is the decision in the case of Ahsanul Haq, etc., relied upon by the learned counsel for the appellant. The facts of that case were different from those of the cases in hand. The case under report related to a joint application against more than one tenants. The objection raised was that separate applications should have been filed against each tenant because separate premises had been let out to them. It was not a grievance made in that case that the tenants were not allowed to cross-examine the witnesses produced against them or they were not permitted to adduce their own evidence. What was held in the case of Ahsanul Haq, etc., was that the making of order of ejectment on the basis of a joint application was at best an irregularity and since it had not caused any prejudice to the tenants the order passed against them were not open to any valid exception. As explained above, the case of Ahsanul Haq, etc., is distinguishable on facts. Also, the judgment in the cited case contains observations indicating that where a party is not allowed to cross-examine the witnesses appearing against him or is not allowed to produce his own evidence grave prejudice is caused to him' and, therefore, such an error of procedure vitiates the trial resulting in the order passed against such party. These observations were made by their Lordships while examining the case of Malik Aman, and they make the following reading -- "And in Malik Aman's case, the learned Judge was of the view that the manner, in which evidence had been recorded, had caused grave prejudice to the case of the appellants. On the finding thus given, the appeal of Malik Aman was rightly allowed."
Malik Aman's case, I am clear in my mind that the case of each respondent before me was seriously prejudiced on account of the procedure adopted by the learned Rent Controller.
14. In result, Ifind no valid reason to interfere with the order o learned Additional District Judge whereby he had set aside the orders passed by the learned Rent Controller. This appeal as well as S. A. O. No. 271 of~ 1979, therefore, fail and they are, accordingly, dismissed with costs.
15. The records shall be sent to the learned Rent Controller immediately to enable him to proceed further with the cases in the light of the above observations and according to law. As the parties have been litigating since long, he shall re-decide the cases expeditiously, and in any case within six months of the receipt of the records.