1. ' The present petition has been filed by Messers Fakhri Traders, who are the tenants of respondents Mst. Batool and 4 others.
2. ' We have heard Mr. Malik Muhammad Saeed for the petitioner.
3. ' A rent case filed by the respondents/landlords is pending in the Court of the XllIth Senior Civil Judge/Rent Controller, Karachi, after being registered as Rent Case No.780/1979. During the pendency of the case, an application was made by the respondents, who, for the sake of convenience, are hereinafter referred to as the "landlords" for summoning four persons to give evidence on behalf of the applicant. A notice was given of this application to the other side only on 27-2-1984. The reasons for such long pendency of the application are not very clear from the papers that have been placed before us, but suffice to say that the application was made in May, 1980. The present petitioner, who again, for the sake of convenience, is hereinafter referred to as the "tenant", filed objections to the landlords' application for summoning witnesses. A copy of such objections is placed on the record, in which it was alleged that the application was belated, mala fide, and was likely to adversely affect the case of the petitioner, because, in view of the petitioner, all the evidence of a party should be examined on one day. The learned Senior Civil Judge, by an order, dated 10-4-1984, granted the application of the landlords, subject to the conditions that all the witnesses shall be examined on one day so that the purpose of cross-examination is not frustrated. The main reason, which appears to have persuaded the learned Senior Civil Judge to pass the order, was that the case of the landlords had not yet been closed, and the decision on the issues would require such evidence.
4. ' Mr. Malik Muhammad Saeed initially contended that the order of the Controller was in violation of the provisions of the Sind Rented Premises Ordinance, and, therefore, should be struck down. His contention is that, under the Sind Rented Premises Ordinance, which, for the sake of convenience, is hereinafter referred to as the "Ordinance", a party can produce affidavits of the evidence of his witnesses, and, in the face of such a provision, the request made by the landlords could not have been granted. His second contention is in regard to justifiability of the order.
5. ' We have not been able to agree with the contention of the learned Advocate for more than one reason. This argument seems to completely overlook the provisions of clause (a) of subsection (1) of section 20 of the Ordinance. This provision states as follows:- "20.(1) Subject to this Ordinance, the Controller and the appellate authority shall, for the purpose of any case under this Ordinance have powers of a civil Court under the Code of Civil Procedure, 1908 (Act V of 1908), in respect of only the matters, namely:-
(a) summoning and enforcing the attendance of any person and examining him on oath;"
6. 'A bare reading of the above provision would seem to indicate that, for the purposes of cases under the Ordinance, the Controller has the power of a civil Court in respect of some matters. One category of such matters is not merely the summoning and enforcing the attendance of any person, but also examining him on oath. It would seem that the Ordinance clearly postulates the applicability of some provisions of the Code of Civil Procedure, though the general policy of the Ordinance is to keep it free from the trappings and long procedures which the Civil Procedure Code often provides. However, in the matter of summoning of witnesses and enforcing their examination on oath the power is reserved for the Controller, despite the general departure from the Code of Civil Procedure. It cannot, therefore, be said that the Controller is completely debarred from summoning any witness. On the factual plane also, we are of the view that the law-makers could not have intended complete bar to summoning of witnesses whose affidavits of evidence had not been filed. A variety of circumstances could be imagined, or, contemplated. For the moment at least, we can conceive of a case of the nature, where the defence of the tenant may be that he has been paying rent to the wife of the landlord, but she would not be prepared to furnish an affidavit in favour of the tenant. In such a case, the tenant would justifiably request the Court to summon her and would it then be advancing the ends of justice if the Controller were to say that, since the tenant had not filed the affidavit of evidence of the wife of the landlord, such a request should be turned down. It would be complete demolition of the edifice of justice, and law cannot be interpreted in that manner.
7. ' There is another angle, which also cannot be overlooked. Sub section (4) of section 19 of the Ordinance provides for evidence by affidavits. This subsection follows subsection (3), which reads as follows:- "(3) Where the respondent has filed the written reply, the Controller shall proceed to receive evidence first of the applicant and his witnesses and then of the respondent and his witnesses."
8. ' It would appear that both the subsections, appearing in section 19 of the Ordinance, lay down modes of receiving evidence by the Controller. It is cardinal principle of interpretation of law that, when two provisions of law lay down seemingly, or, explicitly different modes of obtaining an effect, then the two provisions have to be read in juxtaposition, and so interpreted that each provision stands in its own rights on the statute book. Applying this mode of interpretation, it appears to us that subsection (4) of section 19 is a rule of convenience, and does not, in any manner, override subsection (3). of the said section. If that were not so, there was no justifiable reason for insertion of subsection (3) in section 19. A reading of both the provisions together irresistibly leads us to the conclusion that a party has a right to produce his evidence, which the Controller would be bound to, receive under subsection (3) of section 19, but a party can also prove his case by producing affidavits of witnesses and supply a copy there of to the opposite party. No doubt, the word "shall" has been used in the opening part of subsection (4) of section 19 but instances are not unknown, when, in spite of the use of such word, the Courts have held that the provisions are directory, and not mandatory, or, in any case, non-compliance does not defeat the rights of parties. However, the effect of the use of word "shall" definitely stands minimised by th provisions contained in subsection (3) of section 19, for, if the word "shall" were to be mandatory in the context of the Ordinance, then subsection (3) of section 19 would virtually become nugatory piece o legislation, or, what may be called a superfluous provision. Rarely is any piece of legislation considered to be nugatory, or, superfluous. As stated earlier, the only way of interpretation of subsections (3) and (4) of section 19 is to place the two provisions in juxta-position and so interpret them that each provision occupies its place in the statute in its own right, and each provision yields the result which the Legislature intend to obtain. We are, therefore, not impressed by this argument also.
9. While taking the above view, we would like to enter a caution. That caution is that, if a party invokes subsection (3) of section 19 0 the Ordinance, the application has not to be granted as a matter o course. In order to interpret both subsections (3) and (4) of section 19 fully, and in the correct spirit of law, the Controller has to see, whether evidence by way of affidavit cannot be tendered, and whethe F the reasons given by a party for summoning a person, instead of filing his affidavit, are cogent reasons, which should be acceded to. Having been satisfied that there are good and substantial reasons for summoning the witness, instead of asking for his affidavit, the Controller will be under no fetters, and he could summon the witnesses. Besides such limitation, no other limitation appears to be justified in these circum stances.
10. On a consideration of the entire matter, we are of the view that the order of the Controller is justified, and does not call for interferenceG by this Court in exercise of its constitutional jurisdiction.
11. We, therefore, dismiss this petition in limine.