' The appellant has filed this appeal against the order of the Controller granting respondent's ejectment application in respect of a flat on the ground floor of the house bearing No,58/2 P.E.C.H.
Society, Karachi. The respondent filed application under section 14 of the Sind Rented Premises Ordinance, 1979 on the allegation that the premises was needed for the applicant's family and for her personal use, but it was rented out on account of adverse financial reason caused by the demise of her husband. It was pleaded that the respondent has six male children out of whom one is married and his family is also living with her. The two sons are of marriageable age, but their marriage has been withheld for want of proper accommodation. For these reasons the lease granted to the respondent was not extended after its expiry. It was stated that the respondent is a widow and the present accommodation which is a very small flat does not fulfil her requirements. It was pleaded that the appellant was paying rent at Rs,750 instead of Rs,775 and has defaulted in payment of rent.
' The appellant filed written statement stating that the agreed rent was Rs,750 p.m. It was denied that the premises is required for the bona fide need of the family members of the respondent. He pleaded that the respondent is seeking ejectment with a view to let it out at higher rent. The Controller proceeded with the matter and granted the ejectment on the ground that the premises is required for the family members of the respondent. In this regard one fact may also be noted that during the pendency of the application after the written statement had been filed, the appellant moved an application for amendment of ejectment application by inserting words "section 15(2) (i) (ii) and (vii)" in the heading. This application was granted and the learned Controller allowed the respondent to add this provision of law in the title of the ejectment application. From the record it seems that no amended written statement was ordered to be filed, nor it has been filed.
' Mr. Waheed Farooqui, the learned counsel for the appellant has contended that the application was filed originally under section 14 of the Sind Rented Premises Ordinance, and thereafter the provision of section 15 was added and as both the sections are completely different from each other covering different range of controversies, the application was not maintainable. A perusal of the ejectment application would show that the facts and grounds stated in it are not restricted to the requirements of section 14(i). The facts stated in the ejectment application show that all the averments required for application under section 15 of the Sind Rented Premises Ordinance have been alleged. The respondent was merely allowed to add section 15 in the title of the application without amending any other part. The Controller had taken note of this fact and proceeded under section 15 which is clear from the fact that he had considered the grounds available under section 15 and not under section 14, and further that the proceedings were not taken in a summary manner. Therefore merely addition of section 15 in the title of application before the evidence was recorded will not deprive the respondent from proceeding with the case under section 15. The entire exercise seems to be that the respondent had mentioned a wrong section which was corrected. Merely for describing a wrong section the application cannot be dismissed. The learned counsel may have been correct if the averments in the application would have been restricted to meet the requirement of a case under section 14 because in that situation merely by adding section 15 the application could not be converted into an application under that section. It is the averment in the application which is material to determine the ground and the relief, a party seeks.
In the present case the averments made in the application did bring it within the preview of section
15. Therefore, the applicability of section 14 is ruled out.
Mr. Farooqui contended that as the appellant was not allowed to file amended written statement serious prejudice has been caused, but nothing has been pointed out as to what prejudice has been caused. The appellant had filed his written statement replying to all the averments in the application. As no amendment was made in the allegations and averments of the ejectment application except adding section 15 in the title, perhaps the learned Controller as well as the appellant did not feel any necessity of filing an amended written statement. The desirable course would have been to give an opportunity to the appellant to file an amended written statement.
However, in the facts and circumstances of the case no prejudice has been caused to the appellant as he had replied to the averments in the application and had full opportunity to rebut it.
This omission is not sufficient to set aside the impugned order. Further it seems that the appellant had accepted it without any demur. The situation would have been completely different if by amendment the averments in the ejectment application would have been changed or any additional ground would have been added.
' Mr. Farooqui, then contended that the respondent had filed her affidavit of proof and that of her son Tanveer Ahmed, but after the cross-examination of Tanveer Ahmed she was dropped and was not produced for cross-examination. This according to the learned counsel was a trick played on the appellant because in expectation that the respondent will appear Tanveer Ahmed was not fully cross-examined. Tanveer Ahmed is the son and the attorney of the respondent who had filed his affidavit in evidence and was cross-examined by the Advocate for the appellant. The respondent although filed her affidavit did not appear for cross-examination, and therefore, her statement is of no legal importance. The contention of the learned counsel that it was a trick played on the appellant has no merit. In fact after the son and attorney of the respondent had been examined it is possible that she did not find it necessary to examine herself, it would have been merely a repetition what had been stated by her son. If she has not appeared for cross-examination, she cannot be allowed to rely upon her affidavit of proof. It is not a case where a witness has abstained from appearing and there is no other legal evidence to prove the case. Her son has appeared and in his affidavit he has stated almost the same facts which were stated by the respondent herself.
The question that the appellant's Advocate was hoodwinked and he could not cross-examine her son in expectation to cross-examine the respondent is devoid of any force. When any witness appears for examination it is the duty of the counsel to cross-examine him on all relevant points.
On mere expectation that cross-examination on certain facts should be reserved for asking from the next witness will amount to allowing the statement on the first witness to go unchallenged.
Adopting such a course is neither proper nor correct. It would amount to acting on presumptions and expectations. It therefore, find no substance in this contention also.
' The learned counsel then contended that no relief could have been granted to the appellant as the application was under section 14 and joint application under sections 14 and 15 was not maintainable. The Controller had after due notice allowed the amendment in application and the parties had clearly understood that the case was proceeding under section 15 and not as provided by section 14. The lone question for consideration was whether the respondent requires the disputed premises for her bona fide use and occupation and that of her family members. In the ejectment application the respondent had stated the number of her family members and also alleged specifically that presently she is residing in a house which is small and insufficient to meet the requirement. Tanvir Ahmed the son and attorney of the respondent has repeated the same fact and stated that the respondent has six sons out of whom two are of marriageable age and one married son is also living with them and that the marriage of the two brothers was withheld for want of accommodation. He further stated that the present accommodation is short and is not sufficient for their requirement. It is significant to note that the appellant has not cross-examined this witness on this aspect of the case at all. Therefore, this statement of the respondent's attorney has remained. The said Azizullah Hassan appeared before the learned Rent Controller on 14th October, 1982 and moved an application for an adjournment on the ground that his brother, the appellant, has gone abroad. The learned Rent Controller adjourned the case at the request of the said Azizullah Hassan. The said Azizullah Hassan, thereafter, did not appear before the learned Rent Controller and no steps were taken by him, thereafter, even no written statement was filed as required by the provisions of section 19 of the Sind Rented Premises Ordinance, 1979. On 16th November 1982, an affidavit of evidence-in-ex parte proof was filed by the respondent. The learned Rent Controller by his impugned order dated 31st March, 1983 allowed the application and directed the appellant to hand-over the physical possession of the premises to the respondent forthwith.
The respondent filed an execution application being Execution Application No,28 of 1983 before the learned Rent Controller, who issued notice to the appellant and the case was adjourned for service of notice/summons on the appellant for 25th May, 1983. Instead of the appellant, the brother of the appellant, Azizullah Hassan, appeared and moved an application for adjournment on the ground that his brother would appear in the case. The learned Rent Controller adjourned the case to 9th June, 1983. On 9th June, 1983, he again moved an application for adjournment for three weeks. It seems that no orders were passed on this application. In any case, on 9th June, 1983, the learned Rent Controller passed the following order:- "Counsel for D.H. Present Opponent/J.D. Called absent. On 8th June, 1983, one Azizullah who is said to be brother of J.O. Has moved an application that the J.D. Has not received the notice of this application as he is out of country. Moving of this application dated 8th June, 1983 means that J.D.
Is in knowledge of the pending of execution application against him. Service against J.D. Cost.
Hearing 20th July, 1983."
' The writ of possession was issued against the appellant, who engaged an advocate, and after obtaining necessary certified copies, he filed the present appeal on 7th July, 1983. The appellant, above-named, being aggrieved by the impugned orders dated 31st March, 1983 and 9th June, 1983 of the learned Rent Controller, Karachi, has preferred this appeal on the grounds mentioned in the Memo. Of Appeal.
3. Mr. Ameer Ahmad Khan, learned counsel for the appellant, has urged the following contentions.
(i) That the service on the brother of the appellant is no service in the eye of law and the orders passed by the learned Rent Controller on 31st March, 1983 and 9th June, 1983 be set aside.
4. On the other hand, Mr.Mubarak Hussain Siddiqui, who appeared on the Court notice on behalf of the respondent, has urged that the appeal is hopelessly time-barred. The appellant's brother appeared on 14th October, 1982, and on his request the case was adjourned and it was his duty to inform the appellant.
5. It was contended by the learned counsel for the appellant that the ejectment application was decided without hearing the appellant, and, therefore, the order of ejectment passed by the learned Rent Controller was not sustainable. He contended that the appellant was not served in the ejectment application, and, therefore, the learned Rent Controller has erred in passing the ejectment order against him. It is not the appellant's case that his brother had any interest adverse to him. It is clear from the record that his brother appeared before the learned Rent Controller and sought adjournment on the ground that his brother had gone abroad. It is also clear from the record that service of summons were effected on his brother in accordance with the provisions of order V, r.15, C.P.C. Being the adult male member.
6. On the other hand, Mr. Mubarak Hussain Siddiqui learned counsel for the respondent, urged that even during his stay abroad, his family resided in the house including his brother.He has urged that it can be legitimately presumed to be well informed of the litigation pending against him.
7. I am of the view that it will be a gross abuse of the process of Court after an adverse finding against such a litigant to permit him to turn round and thwart the entire proceedings on the plea that he was not served. The Advocate for the appellant's contention is not bona fide and the principle of estoppel by conduct will actively be attracted.
8. It has already been held that the appellant was in the knowledge of ejectment application. The mere fact that the learned Rent Controller did not make a formal order proceeding ex parte against him is an omission of no consequence. The learned Rent Controller had given a reasonable opportunity to him to show cause against the ejectment application. In this manner, the requirements of subsection (2) of section 19 of the Sind Rented Premises Ordinance, 1979, were fulfilled. The order of ejectment made in this case cannot, therefore be set aside on the ground that he was not allowed to show cause against the ejectment proceedings.
9. The learned counsel urged that in the body of the affidavit-in-ex parte proof shows personal service effected on the appellant. The learned Rent Controller at the time of passing the ejectment order, was apparently unaware of the previous order that service was effected on his brother, who appeared and the case was adjourned at his request, and no written-statement was filed within the prescribed time.
10. The question of limitation has assumed importance in the instant case as admittedly the First Rent Appeal has been filed much beyond the period of 30 days provided by section 21 of the Ordinance for filing appeals against "the impugned orders of the learned Rent Controller, and a Single Judge of this Court (Naimuddin, J.) in the case of Syed Muhammad v. Mazhar Ali Khah PLD 1981 Kar. 76 held that section 5 of the Limitation Act is not applicable to appeals filed under section 21 of the Ordinance. In view of this legal position, it was contended by Mr.Mubarak Hussain, learned counsel for the respondent, that the present appeal is time-barred.
11. Notices were sent to the appellant at his address through bailiff as well as by registered post A.D., but the report of the bailiff shows that notices were received by the male member of the appellant's family. The said male member i,e, the brother of the appellant, appeared and the case was adjourned at his request. This factual position could not be denied. In these circumstances, it is apparent that the appellant was aware of the pending of the ejectment proceedings.
12. In the above circumstances of the instant case where notices were sent on the address and were apparently received by the brother of the appellant, and there being no denial that such notices were not received, in my view, the impugned order of the learned Rent Controller granting the ejectment application is a valid order and is not likely to be set aside. The burden of proving that the summons/notices were not duly served on the opponent/appellant. The appellant has failed to discharge the burden. The notices were not only duly served on the male member of the family but he appeared in Court and sought adjournment which was granted by the learned Rent Controller. As such the appeal is hopelessly time-barred.
I am of the view, that the order granting the respondent's application dated 31st March, 1983 was passed in accordance with law and the execution proceedings based thereon are legal. I direct the office to send R 8 Ps to the learned Court of the Rent Controller and Senior Civil Judge, Karachi.
' In the circumstances of the case, the parties shall bear their own costs.