' This second appeal is directed against judgment, dated 6th December, 1982 of the learned IInd Additional District Judge, Karachi in First Rent Appeal No, 389/1976, whereby an order, dated 3rd August, 1976 of the learned Controller-1, Karachi, dismissing Rent Application No, 3439/69 was maintained.
2. The aforesaid rent case was filed by the appellant S. Aziz Ahmed on 16th October, 1967. Written statement was filed by the respondent Vilayat Hussain on 30th January, 1968. Issues were settled on 10th August, 1968. Thereafter the matter remained pending for evidence. There were number of hearings but no evidence was adduced. It was fixed last for hearing on 3rd August, 1976 when there was no appearance either by the appellant/applicant or by the respondent/opponent. The learned Controller dismissed the rent application by the order reproduced below :- "The applicant and his counsel called absent. The opponent is also called absent. No adjournment application till now has been received. The matter was fixed for evidence of the applicant. The applicant has failed to lead evidence nor any sufficient cause has been shown for remaining absent. The applicant has, thus, failed to corroborate and establish the issues by any evidence.
Therefore applicant's application is dismissed."
3. The learned counsel for the appellant has urged that the order passed by the learned Controller and maintained by the learned Additional District Judge is bad in law as the rent application could not be dismissed on merits but it could have been dismissed for non-prosecution. He has made reference to the provisions of Order XVII, C. P. C. And contended that the learned Controller could have passed an appropriate order under Order XVII, rule 2 read with Order IX, C. P. C. And not under Order XVII, rule 3, C. P. C. He has relied upon PLD 1982 Lab.
439. On the other hand, the learned counsel for the respondent has contended that matter had remained pending for years for adducing evidence and the learned Controller was competent to have dismissed the rent application on merits.
4. In the rent application, the appellant sought ejectment of the respondent on the ground of default in payment of rent and subletting of the premises. The allegations were denied by the respondent. Following three issues were framed
(1) Whether the opponent has failed to pay or tender the rent, if so, what is effect ?
(2) Whether the opponent without the consent and permission of the applicant has sublet the premises ?
(3) What orders ?
5. It is evident that burden of proving the main issue was cast upon the applicant. Issues were framed as far back as 10th August, 1968 an no evidence was adduced till 3rd August, 1976, when the order o dismissal of the application was passed. The application was dismissed A as the parties did not appear and no evidence was produced. It was, of course, represented on behalf of the appellant that the junior Advocate had appeared in the Court soon after the announcement of the order of dismissal of the application and he had submitted applications for restoration of the application but they were not entertained. Be that as it may, the fact remains that there was no appearance before Controller at the time the matter was called for evidence of the applicant's side and, impugned order was passed. The learned Controller did give consideration to the circumstances and dismissed the application as there was no evidence on record to prove the issues, which were to be proved by the applicant/appellant. There is no legal or factual lacuna in the order of the learned Additional District Judge maintaining the order of the learned Controller.
6. In the case Messrs Ahmed Autos and another v. Habib Bank Limited (1) relied upon by the learned counsel for the appellant, a suit was decreed consequent upon the defendants' failing to appear and adduce on the date of hearing and it was contended that the suit could not be decreed merely because evidence was not produced. It was held that the suit could be disposed of under the provisions of Order XVII, rule 2, read with Order IX, rule 6, C.P.C. The facts in this case are different from the facts of that case. In the instant case, the matter was fixed for evidence which was to be adduced by the applicant/appellant and there was no appearance by either party. In such situation, the Court could proceed under rule 2, of Order XVII, C. P. C. Which reads as under :- "2-Procedure if parties failed to appear on day fixed where, on any day to which the hearing of the suit is adjourned, the parties or any of them fails to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such order as it deems fit."
(1) PLD 1982 Lab. 439
7. Under Order IX, C. P. C. It is provided under rule 3 that where neither party appears when the suit is called for hearing, the Court may make an order that the suit be dismissed. The learned Controller could have proceeded in that manner or he could make such other order as he thought fit as provided by rule 2 of Order 17, C. P. C. Reproduced above. Since the matter had remained pending for number of years, he made an Order that no evidence was adduced to prove the case put up by the applicant/appellant. This order was quite appropriate in the circumstances of the case.
8. For the reasons stated above, the impugned order does not call for interference and the appeal is dismissed with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.