1. ' The respondent No,1 claiming to be the landlord of premises bearing No,47 Badri Building filed an application for ejectment against the respondent No,2 alleging that default has been committed by him. It seems that in spite of various attempts made by the learned Controller notice could not be served on the respondent No,2 and he remained absent. On 13-10-1980 the appellant Ned an application praying )hat he may be joined as opponent. In the affidavit filed by him it was stated that he is a tenant of one room at 47, Badri Building from October, 1978 and the other room of this tenement is in possession of Afzal Hussain proprietor of M/s. Four Sons. It was further stated that the respondent No,2 was never a tenant and that he has paid rent at the rate of Rs,100 p.m, on yearly basis in advance. According to the appellant rent from 1-10-1980 has already been paid but the respondent No,1 did not issue any receipt. It was further stated that Afzal Hussain has also paid rent in similar manner. The appellant alleged that the entire rent has been paid to the respondent No,1 by a crossed cheque in favour of the appellant from the account of M/s. Four Sons which can be proved from the bank statement of the respondent No,l. On this basis he claimed to be the tenant.
2. The respondent No,1 filed counter-affidavit denying these allegations. As the respondent was unnerved, the matter was adjourned from one date to another and finally it so happened that the matter was fixed on 15-10-1978 when the appellant and his Advocate were not present. On that date service on respondent No,2 was held good, the application of the appellant was dismissed for non-prosecution and matter was adjourned to 25-10-1980 for order against the respondent No,2.
3. On 25-10-1980 the service on respondent No,2 by publication was held to be proper and the case was fixed on 29-10-1980 for ex parte proof. On that date ex parte proof was filed and on 30-10-1980 ejectment order was passed.
4. ' The appellant has challenged both the orders passed in the proceedings namely the ejectment order as well as the order, dated 15-10-1980 whereby his application was dismissed. In the memo of appeal the appellant has stated that on 12-10-1980 the reader of the Court had given the date as 25-10-1980 in the presence of the Court clerk of the Advocate for the respondent No,1. According to the Advocate for the appellant he attended the Court on 25-10-1980 when he found out that the matter was fixed for ex parte proof and appellant's application was also dismissed lie found out that on 25-10-1980 neither the case file was available nor the case was listed in the daily cause list and the reader asked the appellant's Advocate to inquire the next day. His Advocate followed 4,1 p the matter up to 30-10-1980, 1-11-1980 and 2-11-1980 when the reader informed-that ejectment order has been passed on 30th October, 1980.
5. ' Mr. Vazir the learned counsel for the appellant has contended that his application was dismissed, on the day when the case was not fixed for hearing and therefore, the entire order passed is without any legal sanction. According to the appellant he had been attending the proceedings or at least he was present on 12-10-1980 and his Advocate noted the next date as 25-10-1980.
6. According to the Court diary the case was fixed for hearing on 15-10-1980. It is possible that by some mistake in noting the date the next date had been noted as 25-10-1980. The fact remains that the matter was fixed on 25-10-1980 which according to the appellant was the real date. On that date the appellant came to know that adverse order has been passed on 15-10-1980 and his application has been dismissed. From the record it seems that no notice was taken by the appellant and the memo of appeal and the affidavit filed by the appellant only speaks of making enquiries with the reader of the Court or in the office. No attempt seems to have been made to bring this alleged irregularity to the notice of the Control ler. No application was filed by the appellant before the Controller between 25-10-1980 and 30-10-1980 when the final order was passed.
7. ' The inaction of the appellant has been explained and it seems that the explanation offered by the appellant at this stage is only to cover up the default that has been made by him in attending or pursuing the matter before the Controller. I have examined the record of the Controller and in the order sheet as well as on file- cover I find that after 12-10-1980 the next date has been mentioned as 15-10-1980 and thereafter 25-10-1980. There are not erasers, cutting or any alteration in these dates. From these facts it is difficult to reconcile with the explanation offered by the appellant for his absence on 15-10-1980. The default on 15-10-1980 could have been explained by the learned counsel by produc ing his diary in which date was entered as 25-10-1989. No such attempt was made to produce it or even refer to it in the affidavit. The appellant has not succeeded to give any valid reason for his absence on 15-10-1980.
8. ' After hearing the learned counsel I adjourned the matter and asked the appellant to produce any evidence of payment of rent to the respondent No,1 or any document from which it could be established that he has paid the rent and he is a tenant of the premises. The allegation of the appellant is that M/s. Four Sons had issued Grossed cheque to the respondent No,1 towards the rent up to September, 1980 and no receipt was issued by the respondent No,l. If the rent has been paid by crossed cheque by Four Sons and it has been encased by the respondent No,1 then there was no hindrance in the appellant's way to obtain a statement from the Battik to prove it. In spite of the time granted to the appellant he has merely contented to file his affidavit stating the same facts which he has stated in the memo. of appeal. No document has been produced, not even the affidavit of the proprietor of Four Sons to establish that rent, has been paid by him. As the appellant is in possession of the premises it is for him to explain how he obtained possession and in what capacity he is in possession of the premises. In the absence of any such explanation of any evidence on record or document to establish that the appellant has paid the rent to the respond No,1, the appellant has failed to make out even a prima facie case that he is a tenant. Mr. Melunoodi on the other had stated that in his affidavit the 'respondent No,1 has clearly stated that respondent No,2 was tenant who had been paying rent from January, 1978, till 31-6-1978. He has produced before me today receipt book containing counter-foils of th4 receipts. I have not taken these counter foils into consideration but as the appellant has failed even to prima facie show that he is tenant and on the other hand the respondent No,1 has established that the respondent No,2 is his tenant, no exception can be taken to the impugned order of the learned Controller.
9. ' The appeal is therefore dismissed.