' This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan is directed against the judgment, dated 24-3-1980 delivered by the learned Additional District Judge, Lahore.
2. The facts necessary for the purposes of this petition, briefly stated, are that Salman Aslam (minor) petitioner is owner of a house No,152-D, Model Town, Lahore which had been rented out by him to respondent No,2 at a monthly rent of Rs,1,000.
' On 25-1-1977, the petitioner through his father filed before the Rent Controller, Lahore, an application under section 13 of the W.F. Urban Rent Restriction Ordinance (VI of 1959) against respondent No,2 for the latter's ejectment from the house aforesaid. The grounds taken for seeking eviction of respondent No,2 were:
(1) default in payment of rent from 15-11-1976 to 14-1-1977.
(ii) requirement of the house in dispute by the petitioner for his bona fide personal use and occupation; and
(Hi) damage caused to the property in dispute by respondent which impaired its value and utility.
' The application was resisted by the respondent who apart from controverting the contents of the application raised the preliminary objection that application on behalf of the minor petitioner had not been made through a duly authorized person and as such it was not competent. On the divergent pleadings of the parties the learned Rent Controller framed the following issues:
(1) Whether the respondent is a defaulter? O.P.P.
(2) Whether the applicant requires the house in dispute for his personal use? O.P.P.
(3) Whether the respondent has damaged the house? O.P.P.
(4) Whether the application has not been filed by a competent person? O.P.R.
(5) Relief.
' The learned Rent Controller, by his order, dated 4-2-1979, found issues Nos. 1, 2 and 4 in favour of the petitioner and as a result accepted the ejectment application and directed eviction of respondent No,2 from the house in dispute. He, however, gave four months' time to respondent No,2 to vacate the premises.
' Feeling dissatisfied respondent No,2 went up in appeal to the learned Additional District Judge, Lahore, who by his judgment, dated 24-3-1980 reversed the findings of the learned Rent Controller on issues Nos. 1 and 2 and accepting the appeal rejected the ejectment application of the petitioner with costs.
' The petitioner thereupon instituted S.A.O. No,277 of 1980 in the Lahore High Court which was disposed of as having abated on 12-7-1980. The petitioner has therefore come up with the present constitutional petition.
3. The learned counsel for the petitioner contended, first, that the appeal before the learned Additional District Judge was beyond the period of limitation having been belatedly filed by two days and that the learned Additional District Judge erred in law in condoning the aforesaid delay.
He pointed out that the order was passed by the Rent Controller on 4-2-1979, copy of the order was applied for by respondent No,2 on 5-2-1979 which was prepared and was ready for delivery on 28- 2-1979 but was received on 5-3-1979 and the appeal instituted on 1-4-1979. From the dates given above the learned counsel calculated that the appeal was barred by limitation by two days. He also urged that the Clerk of Court had raised an objection on the memorandum of appeal when presented that the appeal was beyond limitation but despite the above objection respondent No,2 did not make any application for condonation of delay and it was only during the pendency of the appeal that an affidavit was filed by the then learned counsel for respondent No,2 and merely on the basis of that affidavit the learned Additional District Judge condoned the delay which he could not have done under the law. The learned counsel referred to Fateh Muhammad and others v. Malik Qadir Bakhsh reported as 1975 SCMR 157 to contend that the time which can be excluded under section 12 of the Limitation Act while computing the period of limitation is only the time between the date of application for supply of copy and the date when it is ready for delivery and not the date on which a party chooses to take delivery of the copy. The learned counsel contended that the principle laid down in the above authority of the Supreme Court has been completely ignored by the learned lower Appellate Court; ' secondly, that the learned Additional District Judge while reversing the findings of the Rent Controller on issue No,1 acted in disregard of the dictum in Javid Iqbal v. Rana Muzafar Khan reported as 1967 SCMR 229 wherein it has been held that the provisions of the Evidence Act and the Civil Procedure Code are not in terms applicable to proceedings before the Rent Controller. It was submitted that the rejection of secondary evidence of the petitioner regarding the copy of the rent-note was' wholly unwarranted in law, especially when written tenancy had been admitted by respondent No,2 appearing as R.W. 3 and also by another witness i.e, R.W.1. ' thirdly, that the learned Additional District Judge erred in law in holding that rent from 15-11-1976 to 14-1-1977 though deposited by respondent No, 2 on 25-3-1977 did not constitute default; ' fourthly, that the findings of the learned Additional District Judge on issue No, 2 which pertained to the requirement of the house in dispute for personal use and occupation were arrived at by the learned lower Appellate Court by misreading of record; ' The learned counsel submitted that the learned Additional District Judge failed to consider the material on record which shows that the house of the father of the petitioner did not exist when the application for ejectment was made. This fact, it was pointed out, was apparent from the assessm ent order placed on record which has not been considered; ' fifthly, that even if it be assumed that the house of the father of the petitioner was in existence at the time the application for ejectment was made it could not disentitle the petitioner from seeking eviction of respondent No, 2 from the house in dispute on the basis of personal requirement thereof as the landlord is entitled to choose any house for his personal use and occupation in case he owns more than one house in the same urban area. Reliance was placed in this context on Sabu Mal v. Kika Ram alias Heman Das reported as 1973 SCMR 185 and Punjab Hardware and Machine Tools Ltd., Karachi v. Wazir All reported as PLD 1976 Kar. 233; ' sixthly, that the written rent note having been admitted in para. 3 of the written statement there was no occasion for keeping the copy of the rent note brought on record out of consideration merely on the basis that the original thereof was not submitted especially when it was also in evidence that the original was taken away by respondent No, 2 for renewing the same and was not returned by him to the petitioner which position was in no manner controverted by respondent No, 2; ' seventhly, that even if the written rent note be taken out of the field the result would be that the tenancy would be oral and thus governed by section 13(2)(i) of the W.P. Urban Rent Restriction Ordinance, 1959, and, as established on record, the default of respondent No, 2 in payment of rent stood established in such an event as well. It was urged that the default alleged was for the period 15-11-1976 to 14-2-1977 and the deposit of rent pertaining to the above period having been made in the Court on 25-3-1977 and the alleged tender thereof through money order having not been proved the deposit was obviously made beyond sixty days from the date on which the rent for the period 15-11-1976 to 14-12-1976 fell due. Reference was made in this regard to Mst. Iqbal Begum and four others v. Mian Mansoorul Islam reported as 1978 SCMR 365.
' In the same context it was urged that the plea that payment of rent was being made quarterly and that this was the practice and mode of payment of rent, apart from the fact that it was not established and not even set up in the written statement could not be of any avail to respondent No, 2 as has been held in Sh. Muhammad Hassan & Co. v. Mian Mahmood Ahmad Khan reported as 1975 SCMR 355; and lastly, that the learned Additional District Judge erred in law in reversing the findings of the Rent Controller on the issue of default on the ground that although the rent for the period 15-11-1976 to 14-12-1976 could be paid up to 13-2-1977 and the deposit thereof was made on 25-3-1977 the application having been made on 26-1-1977 i.e, before the expiry of grace period which ended on 13-2-1977 respondent No, 2 was not a defaulter in the legal sense at the time of institution of the application and as such default could not be held to have been established.
Referring to Manzoor Ahmad Khan v. Syed Maqsood All reported as PLD 1975 Lah. 1521, the learned counsel submitted that the cause of action could mature during the pendency of the application for ejectment and in the face of established default on respondent No, 2's own showing the issue could not be found against the petitioner.
4. The learned counsel for the contesting respondents made the following submissions:--
(i) That the Constitutional petition in a matter arising out of proceedings under the West Pakistan Urban Rent Restriction Ordinance is not maintainable for the reasons:--
(a) That second appeal to the High Court against such an order is no longer available and entertainment of Constitutional petitions against the appellate orders passed by the appellate authority under the aforesaid Ordinance shall amount to deflecting the intention of Legislature, and
(b) That otherwise also issues relating to default and bona fide requirement of a premises being disputed questions of fact on which findings have been given after appraisal of evidence will not be open to question in the aforementioned jurisdiction of this Court.
' In support of this contention, the learned counsel cited:--
(1) Muhammad Sharif and another v. Muhammad Afzal Sohail etc., reported as PLD 1981 SC 246,
(2) Abdul Ghani v. Mst. Zahida Sheikh and others reported as PLD 1982 Lah. 401;
(3) Mst. Kausar Parveen v. Ghulam Rasool reported as PLD 1981 Lah. 511; and
(4) Muhammad Hussain Munir and others v. Sikandar and others reported as PLD 1974 SC 139.
(ii) That limitation is again a question of fact and, in any case, a mixed question of law and fact and would also be not open to scrutiny in the Constitutional jurisdiction. Reference was made in this regard to Tanbir Ahmad Siddiky v. Province of East Pakistan reported as PLD 1968 SC 185.
(iii) That the contention raised on behalf of the petitioner as to the appeal before the appellate authority being barred by time is not correct in fact also. Elaborating his contention, the learned counsel for the contesting respondent pointed out that though the copy was ready on 28-2-1979, it was attested on 1-3-1979 which must be in the late hours and 2-3-1979 being a Friday, the earliest date on which the delivery could be taken was 3-3-1979 and, therefore, the filing of appeal on 1-4- 1979 did not render it beyond limitation. He contended that the period allowable under section 12 of the Limitation Act would be between the date of application and the date of taking delivery of the copy as has been held in Gul Muhammad v. Allah Ditta, reported as PLD 1960 Lah. 433, Muhammad Bakhsh v. Nizam Din, reported as PLD 1978 Lah. 31 and West Pakistan Industrial Development Corporation, Karachi v. Aziz Qureshi, reported as 1973 SCMR 555.
(iv) That it is wrong to urge that the appellate authority had held that the Evidence Act as such is applicable to the proceedings under the West Pakistan Rent Restriction Ordinance. What has been in fact held by the lower appellate Court is that the principles of the Evidence Act shall apply and it was on this premises that it was held that the carbon copy of the lease could not be taken into consideration as it was not admissible in evidence, the original thereof having not been proved to be not available and further because this was only placed on record at the time of evidence without there being any reference about it in the pleadings. The discarding of this document by the learned lower appellate Court, it was urged, was quite lawful and no objection against the same could be raised in the present petition. It was further submitted that the rule of best evidence and exclusion of oral evidence to prove the contents of documents has only been applied by the lower appellate Court by referring to sections 91 and 92 of the Evidence Act and in effect the principle laid in Syed Riaz Ali v. Shabbir Ahmad Khan, reported as 1971 SCMR 598 has been applied. There being no violation of any provision of law or of any principle laid by any superior Court regarding the above proposition, the order is not open to question in the Constitutional jurisdiction.
(v) That if the document marked 'A' (lease-deed) is excluded from consideration, there is no default established and the lower appellate Court was right in holding that since on the date of institution of the ejectment petition no default had been constituted the findings of the Rent Controller on the issue of default were not maintainable. The maturity of cause of action during pendency of ejectment petition is misconceived and cannot be urged in writ jurisdiction because:- -
(i) Default allegedly committed subsequent to the institution of the ejectment application could not be taken into consideration as it relates to a point of fact and should have been first set up in the application before it could be proved and considered;
(ii) The non-application of the Civil Procedure Code does not mean that this point may not have been set up in pleadings, and
(iii) It was never raised before the Courts below.
(vi) That the agreement was dead according to petitioner's own showing and could not be relied upon for the purposes of considering default. Reference was made to Muhammad Yousuf v.
Abdullah reported as PLD 1980 SC 298;
(vii) That choice of landlord to select one out of many houses in the same urban area can be exercised only when the landlord comes to the Court with clean hands. It was pointed out that in the case in hand the father of the petitioner conceded to the existence of other property in his own name only when he was cornered to that position on account of an application made by the respondents under section 476, Cr.P.C. Which was dismissed on a technical ground.
5. In reply, the learned counsel for the petitioner contended that default stood established even if agreement of tenancy marked 'A' is taken out of consideration. He pointed out that the rent for the period 15-11-1976 to 14-12-1976 was deposited with the Court on 25-3-1977 which was beyond the period allowed in an oral tenancy as provided by section 13(2)(i) of the West Pakistan Urban Rent Restriction Ordinance.
6. It was next urged by the learned counsel for the petitioner that the respondent-tenant was not taken by surprise as to the period of default, inasmuch as, the same has been clearly mentioned in para. 1 of the ejectment petition; the reply to the above was filed by the respondent on 2-7-1977 and he merely stated against this pars, "incorrect and the respondent is not a defaulter". The learned counsel referred to the rent deposit receipt on record of the Courts below which has been filed as Annexure 'F' to the present petition to show that the rent for the abovementioned period was deposited by the respondent on 25-3-1977.
' The learned counsel also referred to another rent deposit challan which showed that the rent for the period 15-2-1977 to 14-5-1977 was deposited on 18-5-1977 which constituted default for the period 15-2-1977 to 14-5-1977. The aforementioned default which was constituted during the pendency of the ejectment petition had, therefore, been rightly taken into consideration by the learned Rent Controller as is evident from the discussion in the order of the Rent Controller and it can, therefore, be hardly urged by the respondent that the point is a new one which could not be raised in the constitutional jurisdiction.
' It was next urged that the same plea had been raised by the respondent himself in the grounds of appeal and was also the subject of discussion before the learned Additional District Judge and that the basis of the order of the learned Additional District Judge upsetting the finding on the point of default as arrived at by the Rent Controller is that default had been committed after the institution of the ejectment application. The point having been raised before the Courts below can, therefore, be legitimately urged before the High Court in the constitutional jurisdiction if the decision thereon is contrary to the provisions of law or, for that matter, against any principle laid down by any superior Courts. The learned counsel pointed out that determination of this question by the lower Appellate Court was violate of section 13 of the W.P.U.R.R. Ordinance as also against the principle laid down in the judgment of this Court reported as PLD 1975 Lah. 521 referred to above which in turn is based on G.H. Book v. Administrator-General of Bengal and others reported as 1921 Privy Council 11, Ghulam Muhammad v. Sh. Zafar All reported as PLD 1951 Lah. 234, Abdullah Bhai and others v. Ahmad Din reported as PLD 1964 SC 106, and Akhtar All Pervez v. Altafur Rehman reported as PLD 1963 Lah.
390.
8. As regards the question of appeal before the lower Court being barred by time, the learned counsel submitted that the learned Additional District Judge decided this point by relying solely on the affidavit of the then learned counsel for the respondent (Mr. Muhammad Usman Siddiqui) filed in the said Court without giving an opportunity to the petitioner to rebut the said affidavit which affidavit did not give the correct position and was sworn on a wholly wrong premise. The learned counsel pointed out that the plea of the appeal being barred by limitation was raised by the petitioner on 11-11-1979 where after an affidavit was filed by the learned counsel for the respondent on 2-12-1979 without knowledge of petitioner and the learned lower Appellate Court neither gave notice thereof to the -petitioner nor an opportunity to rebut it yet the same came under discussion during arguments but it was taken into consideration and made basis of the impugned judgment.
This, the learned counsel submitted, was wholly unwarranted in law inasmuch as the point of limitation could only be decided by the Court after giving an opportunity to the petitioner to rebut the assertions made by the respondent for showing his appeal as within time. This act of the learned Additional District Judge, it was urged, is obviously not only violate of the principles of natural justice but amounts to refusal to give an opportunity to the petitioner of the hearing in the matter.
9. The learned counsel submitted that by production of additional document, vide C.M. No, ? Of 1983, it is abundantly shown that reliance placed upon the affidavit by the learned Appellate Court was incorrect inasmuch as the chit issued to the respondent for obtaining certified copy was not destroyed as deposed to in the affidavit since its certified copy has been placed on record and is available in the Copying Agency. It was also urged that the said chit does not show that the date given to the respondent for obtaining copy was 5-3-1979 as sworn in the affidavit. The believing of this affidavit and basing the judgment thereon is obviously a wholly erroneous assumption and a patent wrong which A merits to be interfered with by this Court.
10. The question of limitation in relation to institution of appeal before the District Judge goes to the root of the case. Since I propose to remand the case on that issue. I do not feel called upon to deal with the rival contentions raised on behalf of the parties on other points for any determination on these points, at this stage, while controversy regarding limitation hangs fire, will be exposed to the possibility of being rendered an exercise in futility and a Court will not countenance a course with that potentiality.
11. The learned Additional District Judge allowed the plea of the respondent in regard to the institution of the appeal before him being within time by relying upon an affidavit of Mr. Muhammad Usman Siddiqui, counsel for the respondent, to the effect that the Copying Department had been extending the date for receipt of copy from time to time as allegedly shown in the chit given by the Department and that since the copy was not ready on those dates the limitation will be computed from the date of delivery of the copy. It was added in the said affidavit that the said chit was handed over to the Copying Department when receiving the copy and the same has since been destroyed. This affidavit was received by the Additional District Judge ex parte without notice to the petitioner and he was not called upon to meet its contents. Before me, the petitioner has placed on record a certified copy of the said chit showing conclusively that the same had not been destroyed. I also find that the entries in the said chit do not, prima facie, support the version contained in the said affidavit of the counsel of the respondent.
12. In the context of the foregoing situation it is readily maintainable that the reliance placed by the Additional District Judge on the said affidavit of the counsel without affording the petitioner an opportunity to controvert the same was misconceived and it involved violation oil the principle of natural justice. The maxim Audi alter am partum is fully attracted to the case and the applicability of the said maxim is not to be confined to the main controversy in a given case but can be validly extended also to proceedings incidental thereto. In the circumstances the finding recorded by the Additional District Judge on the point of limitation is unsustainable as being without lawful authority.
13. In view of the foregoing discussion accepting this petition I declare the impugned judgment, dated 24-3-1980 delivered by the learned Additional District Judge, Lahore as without lawful authority and setting aside the same direct that the case should go back to the Additional District Judge, Lahore for dealing with the point of limitation afresh after affording the present petitioner a proper opportunity to controvert the said affidavit.
14. Since I am remanding the case on the question of limitation I consider it worthwhile to direct that the learned Additional District Judge shall record fresh finding on the question whether ejectment petition was premature after considering the plea raised on behalf of the petitioner to the effect that the cause of action could mature even during pendency of proceedings.
15. The learned Additional District Judge, Lahore shall finally decide the appeal within three months.