' This second appeal under section 15 (4) of the West Pakistan Urbant Rent Restriction Ordinance, 1959, has been filed by the tenant/appellant against the order of 7th Additional District Judge, Karachi, acting as the first appellate authority, dated 31-3-1980 confirming the order of ejectment passed by the Rent Controller, in Rent Case No, 462/1972.
2. The application for ejectment was instituted by the respondent/ landlord on the grounds of nuisance and impairment of the value and utility of premises and making alterations and additions in the premises. The Rent Controller granted the application both on the grounds of nuisance and damage caused to the property which allegedly had resulted in the impairment of the value and utility of the building and his order has been confirmed in the first appeal by the first appellate Court.
5. The learned counsel for the appellant contended before me that the orders of the Courts below granting ejectment of the appellant from the premises on the grounds of nuisance and impairment of the value and utillity of the premises is based on misreading of evidence. It is also contended by the learned counsel that the order of the Rent Controller dated 16-5-1978 closing the side of the appellant was an arbitrary order which resulted in serious miscarriage of justice. It is lastly contended by the learned counsel that both the Courts below completely misconstrued the provision within regard to eviction of the tenant on the ground of nuisance and the evidence recorded before him even if it was accepted as correct did not amount to nuisance within the meaning of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959. The learned counsel for the respondent on the other hand contended that the plea of nuisance and damages caused to the building impairing the value and utility of the building are pure question of fact and since the findings of the two Courts below are concurrent on it, this question is not open to be agitated in second appeal before. This Court. Before examining the above contentions I will first state here some of the steps taken in the proceedings as they are necessary for disposal of the contention of the learned counsel for the appellant with regard to the order of Controller, dated 18- 5-1978, closing his side and which I propose to deal first in this case. The rent application was filed by the respondent on the above grounds before the Rent Controller on 7-3-1972. Issues were framed in the case on 12-1-1973. The respondent started his evidence on 5-10-1974 and closed his side on 20th September, 1975. The appellant thereafter started his evidence on 2-3-1978 and examined his first witness. The second witness was examined by the appellant on 9-3-1978 while the third and fourth witnesses were examined on 21-3-1978. The fifth witness was examined by the appellant on 10-4-1978. The case was thereafter adjourned to 16-4-1978 for further evidence of the appellant. On this date an application was moved by the counsel for the appellant for adjournment and simultaneously an application for summoning some witnesses was also moved before the Court. The case was adjourned in spite of opposition by the counsel for the respondent to 6-5-1978 and summons were also issued to the witnesses for that date. On 6-5-1'978 the witnesses summoned were found to be unnerved and, therefore, another application was moved on behalf of the appellant for issuance of fresh summons to the witnesses and the counsel for the appellant undertook to serve the said summons on the witnesses according to law. The case was accordingly adjourned to 18-5-1978 for evidence of the appellant. On 18-5-1978 another application was filed by the counsel for the appellant with a request to adjourn the case on the ground that the appellant's partner who was incharge of the case was out of country and the witnesses could not be served as the office had failed to issue summons because the application was granted late. It was also mentioned that the counsel for the appellant was also feeling well.
This application was opposed by the respondent and the Rent Controller passed the following order rejecting the application and closing the side of the appellant:- "ORDER ' Advocates for the parties present. The Advocate for applicant opposes the grant of this application. He has made a separate application with a prayer to close the side of the opponent as the matter was today kept for further evidence of the opponent's side but their witnesses are not present.
' On the last date of hearing adjournment was granted on the undertaking of the Advocate for opponent to get the witnesses of the opponents served for today, but that has not been done.
Today adjournment is sought on the grounds that attorney of the opponents is out of country and the Advocate for opponent is also not well. The first ground for adjournment is not tenable as the learned counsel' for the opponents could examine the witness, if any, even in the absence of the attorney of the opponents. The second ground seems to be a routine one which cannot be considered in the absence of witnesses. Under the circumstances this application is rejected and the side of the opponents is closed as they have failed to examine any further witnesses in spite of opportunities given to them.
(Sd.)
18-5.1978."
' The case was accordingly adjourned to 25-5-1978 for arguments. On 25-5-1978 the appellant tiled an application under section 151, C. P. C praying for re-calling of the order and re-opening of his side which was closed on 18-5-1978. Notice of this application was given to the respondent for 31st May, 1978. The application moved by the appellant for re-opening of his side was rejected on 31st May, 1978 by the Rent Controller and the case was fixed for final arguments on 6-7-1978. On 6-7- 1978 another attempt was made by the appellant's counsel by moving an application for adjournment with request to summon the witnesses in the case. It appears that on that date another application for site inspection was also moved.
' The Rent Controller while rejecting the application of the appellant for allowing him time to summon the witnesses fixed the case for site inspection on 15-7-1978 at 1-30 p. m. On 15-7-1978 the site inspection was postponed to 16-7-1978 and 16-7-1978 again on account of absence of the appellant's counsel the site inspection was fixed at 1-30 p. m. On 17-7-1978. The site was inspected on 17-7-1978 and thereafter the case was posted for pronouncement of order on 31-7-1978.
However, on 31-7-1978 the judgment was not ready and, therefore, the case was again adjourned to 13-8-1978. On 13-8- 978 the judgment was not not ready and again the case was adjourned to 27-8-1978 for orders. On 27-8-1978 the case was adjourned to 10-9-1978 for re-arguments. On 10- 9-1978 the case was argued only by the respondent as the appellant did not argue the case and, therefore, the case was adjourned to 28-9-1978 for orders. On 28-9-1978 the appellant informed the Court that a transfer application was moved before the District Judge and, therefore, the case was adjourned to 8-10-1978 for production of stay order from the Court of District Judge. On 8-10- 1978 instead of producing the order of stay from the Court of District Judge, the appellant moved another application praying that the witnesses who were not served in the matter be summoned.
This application was rejected after hearing the appellant's counsel in view of the earlier order passed by the Rent Controller on 6-7-1978. With the rejection of the application the orders in the case were also pronounced and the ejectment application was allowed.
4. From the above-stated facts it is quite clear that large number of adjournments were granted to the parties for production of their evidence in the case but the point which requires consideration in the case is whether the order, dated 18-5-1978 closing the side of the applicant was an appropriate order in these circumstances and whether this order has resulted in causing serious prejudice to the appellant. The appellant had applied for summoning of witnesses on 19-4-1978 and the summons were accordingly issued for 6-5-1978. On 6-5-1978 the witnesses were unserved and, therefore, the case was adjourned to 18-5-1978. However, while the case was adjourned to 18- 5-1978 the counsel for the appellant had undertaken to serve the witnesses for that date namely, 18-5-1978. On 18-5-1978 the counsel for appellant complained to the Court that the summons could not be served on the witnesses as it was not issued by the office. However, it appears from the order of the Rent Controller passed on 18-5-1978 which is reproduced earlier that the side was closed on the ground that the Advocate for the appellant had undertaken to produce the witnesses for 18-5-1978 but this was not done. The application for adjournment was rejected on the ground that the absence of attorney was not a ground for adjournment as the witnesses could be examined in the absence of attorney and in so far the ground of sickness of the counsel was concerned if was found by the Rent Controller that it was the usual ground mentioned in the application. It is to be noticed that the contention of the appellant that the office had failed to issue the summons was not at all considered by the Rent Controller while rejecting the request for adjournment and closing the side of the appellant. It is true that the appellant's counsel had undertaken before the Rent Controller on 6-5-1978 to serve the summons on the witnesses directly in accordance with the law but if the allegation of the appellant was correct that office had not issued the summons, the appellant could not have been charged with the responsibility of failure to serve the witnesses in time. The original summons which were applied for 18-5-1978 are on record of the Rent Controller's file at pages 109 to 113 and their perusal shows that the costs of the summons were paid by the appellant but they were signed by the Serishtedar of the Rent Controller's office only on 16-5-1978 with the result it was not issued to the appellant for service.
There is nothing on record to show that witness summons were ready for delivery in time but they were not received by the appellant for service on the witnesses. In these circumstances it could not be said that the appellant was responsible for non-service of summons on the witnesses and consequently the order passed by the Rent Controller closing the side of the appellant on the ground of failure to serve the witnesses cannot be held to be a legal order. An effort was made by the appellant once again before the first appellate authority to summon these witnesses when he applied for examination of these witnesses under Order XLI, rule 27, C. P. C. But the first appellate Court refused to grant the request on the ground that the appellant's counsel had undertaken to bring the witnesses and four dates thereafter were given for that purpose but he failed to produce those witnesses. The ground on which the application under Order XLI, rule 27, C. P. C. Was disallowed is based on an incorrect assumption. The order dated 6-5-1978 passed on the application of the counsel for the appellant only shows that the appellant's counsel had undertaken to serve the witnesses in accordance with the law. There was no undertaking given by the appellant's counsel to produce the witnesses without summons being issued to them. It is also incorrect that four dates were given for production of the witnesses thereafter but these witnesses were not produced. From the diary sheet of the case before the Kent Controller it appears that the summons were applied for the first time on 19-4-1978 and summons were issued to the witnesses for appearance on 6-5-1978 which was returned by the bailiff as unserved. However, the counsel for the appellant on 6-5-19-8 requested for adjournment of the case and also undertook to serve these witnesses in accordance with the law. The case was accordingly adjourned to 18-5-1978 but on that date it was alleged by the appellant that the witnesses could not be served as the office had failed to issue the summons for that date. It will thus be seen that in between 19-4-1978 and 18-5-1978 when the side of appellant was closed there was only one date namely 6-5-1978 for which summons were issued to witnesses by the Court. Therefore, the observation of the first appellate Court that four dates were given for the purpose of production of the witnesses but the appellant failed to produce the same is not supported by the record of the case. The witnesses which were proposed to be examined in the case are the officials of K. M. C. Whose presence could not be secured without summons from the Court. The case filed by the respondent relates to unauthorised construction and damage to property and, therefore, it cannot be said that examination of these was not material to the case of appellant. In the circumstances the contention of the appellant's counsel that the Rent Controller was not justified in closing the side of appellant and the first appellate authority acted illegally in disallowing the request of appellant to summon these witnesses, is not without force. The Rent Controlle acted arbitrarily in closing the side of the appellant on 18-5-1978 without considering and going into the allegation of appellant that the office had failed to issue the summons for that date and the first appellate Court also rejected the application on a misconception that the appellant was allowed four opportunities to summon the witnesses but he failed of produce the same. I accordingly accept this appeal, set aside the orders of Courts below and remand the case back to the Rent Controller with the direction that the summons be issued for examination of the witnesses mentioned in the application of appellant, dated 19-4-1978 and the case be decided afresh in accordance with the law in the light of all the evidence. Since I have remanded the case on the ground that the side of the appellant was illegally closed by the Rent Controller and first appellant Court also acted on an incorrect assumption in disallowing the application under Order XLI, rule 27, C. P. C. And the appellant will now be entitled to examine the witnesses in the case before the Controller, it c is not necessary to decide the other contentions raised by the learned counsel for the appellant on merits of the easel. The appeal is accordingly allowed but in the circumstances of the case there will be no order as to costs. Since the ejectment application was instituted by the respondent in the year 1972 I further direct the Rent Controller to decide the case as expeditiously as possible.