1. ' This petition is directed against the order of the learned District Judge, Karachi (Appellant Authority) whereby the orders passed by the Additional Rent Controller, Karachi Cantonment, dated 15th August, 1979, 21st August, 1979 and 8th March, 1980 have been set aside and the case has been remanded to her.
2. ' The dispute relates to bungalow No 16-A-1 Central Avenue, Defence Housing Authority which was owned by Sardar Nazar Muhammad, the father of the petitioner. Under a lease agreement, dated 15th August, 1975 this bungalow was let out to respondent No, 2 at a monthly rent of Rs, 3,500. The petitioner has alleged that Sardar Nazar Muhammad out of love and affection gifted this property to the petitioner under a declaration Gift, dated 18th December, 1975 and her name was mutated in the Records of Society and the Record of Rights. Sardar Nazar Muhammad was assassinated at Quetta on 20th January, 1977. A death Certificate and copy of the F.I.R. Has been produced. A legal notice, dated 18th October, 1978 was addressed on behalf of the petitioner to the respondent No, 2 intimating the transfer of property and claiming arrears w,e,f, 16th November, 1976. The respondent No, 2 replied that payments upto June, 1979 have been made to Sardar Nazar Muhammad and asked for the title deeds. This payment was denied by the petitioner. The petitioner obtained Succession Certificate on 17th August, 1978 which was duly extended on 9th March, 1980 from the Court of Senior Civil Judge, Quetta. On 8th May, 1979 the petitioner filed an ejectment application against the respondent No, 2 in the Court of learned Additional Rent Controller, Cantonment on the ground that he has defaulted in the payment of rent and the premises are required for the personal bona fide use and occupation of the petitioner. The respondent No, 2 in his written statement contended that the rent has already been paid in advance upto June, 1979 to Nazar Muhammad against a receipt. He denied that the property has been gifted to the petitioner. He pleaded that rent for the month of July to October, 1976 was paid to Nazar Muhammad through cheque which was realised by him. The rent for November and December, 1976 was remitted to Nazar Muhammad by cheque through registered post, but the same was returned with endorsement that Nazar Muhammad had gone to U.S.A. And thereafter the rent from November, 1976 to June, 1977 was deposited in Court. Subsequently Nazar Muhammad approached the respondent No, 2 and was allowed to withdraw the same. According to the respondent No, 2 the rent from June, 1977 to June, 1979 was also paid to the same person i,e, Nazar Muhammad under a duly executed receipt. It was also pleaded that an ejectment application was filed in March, 1978 in the name of Nazar Muhammad and was verified by Esa Khan as attorney of Nazar Muhammad.
3. Respondent No, 2 challenged the Power-of-Attorney and an application under section 476, Cr. P.C.
4. Was filed and consequently the said ejectment case was withdrawn.
5. ' Before the Controller, the respondent No, 2 filed an application to frame a preliminary issue to decide the relationship between the parties. The Controller framed an issue to that effect and ordered the parties to lead evidence on 15th August, 1979. On that date the petitioner examined her son and a witness from the Military Estate Office. The petitioner closed her side and respondent No, 2 was asked by the Controller to lead the evidence. Respondent No, 2 filed two applications one for adjournment and the other for summoning witnesses which both applications were rejected by the Controller and order was passed holding that the relationship of landlord and tenant exists between the petitioner and respondent No,
2. The respondent No, 2 filed an appeal against the order, dated 15th August, 1979 being Rent Appeal No, 471/1979. This appeal was admitted on 20th August, 1979 and an order for stay of proceedings before the Controller was passed on the same day. The stay order was prepared and from the bailiff's report it seems that at about 2-10 p.m. On 20th August, 1979 he went to the Office of the Controller and delivered order to the Despatch Clerk who told him that it should be delivered to the Legal Branch. It seems that as no one was present there, on 21st August, 1979 at 8-30 a.m. The bailiff again went there and waited for five minutes when the Assistant Controller arrived who after reading the order refused to receive it and ultimately the bailiff went to the Despatch Branch and finally the service of order was effected at 9- 00 a.m., on 21st August, 1979. These facts are stated in the bailiff's report. However, on 21st August, 1979 the said Additional Controller passed the tentative order for deposit of rent directing the respondent No, 2 to deposit the sum of Rs, 1,15,000 being the arrears from November, 1976 to August, 1979 within two months. It was further ordered that the petitioners shall not withdraw it till, the decision of the case. The respondent No, 2 filed appeal No, 531/1979 against this order. He had also filed an application for transfer of the rent case. The learned District Judge dismissed all these proceedings. Both the appeals were dismissed on the ground that no appeal was maintainable against an interlocutory order.
6. ' The petitioner filed an application before the Controller on 20th December, 1979 for striking of the defence of respondent No, 2 as he had failed to comply with the order, dated 21st August, 1979 passed by the Controller. The respondent No, 2 filed objections and finally by order, dated 8th March, 1980 the Additional Rent Controller struck of the defence of the respondent No, 2 who filed an appeal before the learned District Judge being Rent Appeal No, 25/80 which was allowed by the impugned order and the case was remanded for decision on preliminary issue. In this appeal the respondent No, 2 had challenged the orders, dated 15th, 21st August, 1979 and 8th March, 1980.
7. ' The learned counsel for the petitioner has assailed the impugned order on the ground that the learned District Judge has travelled beyond the record and has based his conclusion on surmises and conjecture. This contention should be considered in relation to 3 orders passed by the Controller (1) Order, dated 15th August, 1979 whereby relationship of landlord and tenant was decided, (2) Order, dated 21st August, 1979 whereby the respondent No, 2 was ordered to deposit the arrears of rent, and (3) Order, dated 8th March, 1980 striking of the defence of the respondent No, 2 for non-compliance with the order, dated 21st August, 1979. Mr. Habibur Rehman the learned counsel has referred to the observations of the learned District Judge where he has stated that the Controller did not hold proper enquiry and no proper opportunity was given to respondent No, 2 to lead the evidence. In the impugned order it has been observed that the record revealed that respondent No, 2 was not given proper opportunity to prove the allegation and order was passed on 15th August, 1979 in a hurry. A scrutiny of the record makes it clear that the Controller has framed the issue on preliminary objection raised by respondent No,
2. She fixed the matter on 26th July, 1979 for production of evidence by both the parties but on that day the hearing was adjourned to 15th August, 1979 for the same purpose. On 15th August, 1979 after examining two witnesses the petitioner's Advocate closed the side whereupon the Advocate of respondent No, 2 presented two applications. By one application he requested for adjournment for producing witnesses as no witness was present. The Controller has noted that the respondent No, 2 was present and the Advocate did not produce him for recording the evidence. The other application was for summoning the record from the Stamp Office of Registrar and one Ashfaq Ahmed Stamp Vendor City Court Karachi. The Controller refused to adjourn the, matter and as no witness on behalf of the respondent No, 2 was available for examination, she proceeded to decide the preliminary issue.
8. The order seems to have been passed the same day. The proceedings show that the respondent No, 2 was given sufficient opportunity to produce the evidence and even directions were given by the learned Controller to produce the evidence on the date of hearing. It was, therefore, necessary that both the parties should have been ready with their evidence. The respondent No, 2 could have summoned his witnesses earlier. The matter was first fixed on 25th July, 1979 but no witness seems to have been summoned for that hearing. On that date it was adjourned to 15th August, 1979 but the respondent No, 2 did not summon any witness again. Even the respondent No, 2 was not produced for recording his statement, on 15th August, 1979 although as noted by the Controller he was present in Court. The Controller, therefore, for valid reason a recorded in the order was justified in exercising her discretion to do the evidence of respondent No, 2 and pronounce the order on the preliminary issue. In these circumstances the order of the learned District Judge was not proper as full opportunity had been given to the respond dent No 2 to produce the evidence. It has become a practice that adjournments are being sought on the ground that witnesses have not been summoned. These requests always cause delay in decision of the matte and if sufficient time was available to the party to summon the witness such practice should not be encouraged. The question whether a case should be adjourned is entirely within the discretion of the an unless it has been exercised arbitrarily and mala fide it would not b proper to interfere with it. In the present case sufficient opportunity has been given to respondent No, 2 who did not avail it and the Controller was justified in refusing to adjourn the case. The proceedings before the Controller are quasi- judicial in nature an proper opportunity to present and substantiate his case shout be given to every party. However this does not entitle a part to insist on producing any evidence he likes at his convenience. Mr. Ziaul Hassan the learned counsel for the respondent No, 2 has referred to various documents to show contradiction and discrepancies in the evidence of the petitioner and contended that the finding of the Control leer was not legal and proper. At this stage I may & it out that both the learned counsel have argued at length without realising that the proceedings are under constitutional jurisdiction and are completely distinguish able from appeal. I find that there was sufficient material on record before the Controller on the basis of which the preliminary issue could be decided and on refusal or failure of respondent No, 2 to produce his evidence on the date of hearing without any reasonable cause or excuse, the Controller had the authority to pronounce order. On this ground the order, dated 15th August, 1979 cannot be set aside. This order is based on evidence produced on record and no exception can be taken to the finding on preliminary issue which is proper and legal.
9. ' Now coming to the next order, dated 21st August, 1979 the learned District Judge has set it aside mainly on the ground that it was passed hurriedly without making any proper enquiry. The nature of the proceedings before the Controller for passing order for deposit of rent is tentative in nature.
10. Such order can be modified at the time of final hearing. Whatever may be the merits of the order, dated 21st August, 1979 one cannot overlook the fact which is sufficient to nullify it, that it was passed during the operation of stay order of the Appellate Court. After the Controller had passed the order, dated 15th August, 1979 the respondent No, 2 immediately filed Appeal No, 471/1979 before the District Judge on 20th August, 1979. On that very day the learned District Judge passed an interim order staying the proceedings before the Controller. The plaintiff went to serve the order on 20th August, 1979 but on that day service could not be effected as the office had closed and the Despatch Branch refused to accept it. On 21st August, 1979 the bailiff showed the stay order to the Controller at 8.35 a. m. But after reading it she did not accept it and asked the bailiff to serve it on the Despatch Branch. The bailiff tossed between the Legal and Despatch Branch and ultimately at 9-00 a. m. The service was effected. After the bailiff had submitted his report comments, were called from the Controller who stated that the stay order was not within her knowledge and was placed before her on 23rd August, 1979. The learned District judge who decide Appeal No, 471/1979 taking note of all these facts early observed that he had no reason to disbelieve the Controller and directed that action should be taken against the clerk. However, in the punned order taking note of these facts the learned District Judge concluded that the facts and circumstances show that the Controller ad hurriedly passed the order for deposit of rent. He further observed that "if the report of the bailiff is correct for which these appears no reason to disbelieve, then it is at least clear that the learned Rent Controller came in office at 8-35 a. m. On 21st August, .1979 and she was told about the stay order which she also read and then returned to the bailiff and, therefore, obviously the order for tentative rent must have been passed after that on that day. "Both the learned district Judges have taken a very lenient view of the matter and have end to brush aside cursorily although in such circumstances a very riots view should have been taken. It is the duty of all subordinate hurts to obey the order passed by the superior Courts. Any attempt avoid service of such order or non-compliance is likely to cause pre dice and create complications as in the present case. If the Controller would have been wise enough to accept the stay order, this matter would to have been delayed for so many years in futile exercise. Such attitude y responsible officers judicial, quasi-judicial or executive does no Vance the cause of justice and adversely reflects on the Officer concerned. The law is well-settled as held by the Full Bench of the bore High Court in Karam All v. Raja (1) that the order of stay . Operative from the time it is passed. To make a stay order effective is not necessary that such order should be served on the concerned" arty. Its communication is not a pre-condition for its operation. It therefore, follows that the proceedings had been stayed on 20th August, 79 and when the Controller passed the order on 21st August, 1979 e stay order was in operation. Any order passed during the operation f stay order is to be treated void and invalid. On this short ground e order dated 21st August, 1979 whereby the respondent No, 2 as directed to deposit the rent tentatively is void and an invalid. The effect of this finding is that the defence of the respondent o. 2 could not be struck off for non-compliance of an invalid and old order. Order dated 8th March, 1980 is based on order dated 1st August, 1979 which is void and illegal and, therefore, any superructure built on such an invalid order will also be invalid and illegal r.
11. Habibur. Rehman relying upon :PLD 1983 SC 1 and 1979 SCMR 96 contended that compliance of order, dated 21st August, 1979 could to be shelved and appeal against the order, dated 8th March, 1980 should have been filed after complying with the order dated 21st August, 979. This contention is devoid of any force. The observations made by e Hon'bIe Supreme Court do not apply to the present case. Non compliance with order for deposit of rent will result in striking of the Defence and ejectment. Such a tenant can, therefore, file an appeal against the final order of ejectment .In which he can also challenge he order for deposit of rent. Reference can be made to Abdul Rehman v. Haji Mir Ahmed Khan and another (2). If the contention f the learned counsel is accepted then it would mean that no appeal
(1) P I D 1949 Lah. 100 (2) PLO 1983 SC 21 can be filed unless the rent has been deposited. No such embargo can be spelt out from the provisions of the Ordinance. It would amount to imposing a precondition for filing appeal which is not permissible in law.
12. ' In view of the above discussion the petition is partly allowed to the extent that the order of the learned District Judge accepting appeal against the order, dated 15th August, 1979 is declared to be without lawful authority. The impugned judgment to the extent that it has set aside the order of the learned Controller, dated 21st August, 1979 and 8th March, 1980 is perfectly legal and valid. In the circumstances the case is remanded back to the Controller to pass order under section 17 (9) of the Cantonment Rent Restriction Ordinance after hearing the parties. The petition is partly allowed with no order as to costs.