1. ' These are two First Rent Appeals in which parties are same and questions of law and facts involved are same but two different impugned orders were passed. F.R.A. No.462/83 arises from the Rent Case No.4620/81 and F.R.A. No. 463/83 arises from Rent Case No. 4622/1981. Impugned orders are dated 2-5-1983 passed by learned Ilnd Senior Civil Judge/Rent Controller, Karachi, whereby ejectment has been granted.
2. ' Briefly stated the relevant facts giving rise to these appeals are that appellant namely Sattar Muhammad Raja is tenant and respondent Anwarullah Khan is landlord and would be referred to as such hereinafter. Tenant has in occupation two flats on First Floor of the same building, address of which is given in the applications for ejectment, of which the owner is landlord. Landlord filed Rent Case No. 4620/81 for ejectment on the ground of default for three months in the payment of rent from 1st July 1981 to 30th September, 1981. On the same day landlord filed another Rent Case No.4622/81 on the grounds of default for the same period and also for sub-letting. Tenant contesting both the rent cases had filed written statements. There was progress in the proceedings before the Rent Controller and the landlord filed his affidavit of evidence and those of two of other witnesses. Landlord and his two witnesses were subsequently cross-examined by the tenant.
3. Grievance of the tenant is that after landlord and his witnesses were cross-examined on 15-11-1982, both cases were adjourned to 18-12-1982 for affidavit-in evidence of the tenant and on 13-1-1983 tenant applied for extension of time to file his affidavit-in-evidence but the request was rejected and the side of the tenant was closed. Alter that tenant filed an application for review of the order but that application was also rejected and subsequently both rent cases were decided against the tenant by final order without the tenant being allowed to produce his evidence on the record.
4. ' My attention has been drawn to section 19 of the Sind Rented Premises Ordinance, 1979, which will be referred to hereinafter as the said Ordinance. In this section procedure is prescribed with regard to the recording of evidence of the parties in the Court of Rent Controller. Subsection (3) of section 19 provides that where the tenant has filed the written reply, the Controller shall proceed to receive evidence first of the -landlord and his witnesses and then of the respondent and his witnesses.
5. ' Mr. Farooq H. Naek, Advocate for the appellant has argued before me that the provision mentioned above clearly lays down the procedure that the Rent Controller has to record the evidence of the landlord and his witnesses first and thereafter it would be open to the tenant to examine himself and produce his witnesses. According to the learned counsel the landlord closed his side after the cross-examination which was done on 15-11-1982. After that the case was adjourned to 18-12-1982 for evidence of the tenant. On 18-12-1982 the cases were adjourned to 13-1- 1983 for the reason that Presiding Officer was on leave. On 13-1-1983 application was filed on behalf of the tenant for extension of time to file his affidavit of evidence. Reason given in the application is that affidavit could not be filed because tenant was out of Karachi for some business purpose. This was the first time when request was made for extension of time and the reason was also given in the application. Order rejecting this application has been assailed on the ground that observations made by the learned Rent Controller that affidavit was not filed on last several -hearings is factually incorrect. Further case diary in the record of the Rent Controller shows that on 15-11-1982 landlord had closed his side and case was adjourned to 18-12-1982 for evidence of the tenant.
6. There is interpolation in this Order in which it appears that it has been added subsequently in other ink that the landlord had closed his side and further addition is that the case was adjourned for evidence of opponent. The ink in which both these things are mentioned is different. Subsequently case diary of 18-12-1982 shows that proceedings could not take place for the reason that the Presiding Officer was on leave and the case was adjourned to 13-1-1983. Even in the case diary of this date there is interpolation to the extent that words have been added subsequently to the effect "for the evidence of opponents". Furthermore case diary of this date was not signed by any person neither by the Rent Controller nor by the Link Officer nor even by the Reader. In such circumstances it will not be correct to say that the tenant failed to produce affidavit for the last several hearings. In any case in the said Ordinance, section 19 thereof is further silent about what is to 'be done if there is failure on the part of any party to produce evidence as is prescribed under that section. No doubt it has been held time and again that the Rent Controller has to evolve his own procedure but then he had to evolve such procedure which is consistent with rules of natural justice as this principle is deemed to be grafted into every law unless it is expressly barred. Although the said Ordinance does not provide any remedy for such situation but then procedure is prescribed in the Civil Procedure Code in Order XVII rule 3 which caters for such situation. In such circumstances it is open to the Rent Controller to seek guidance from the principles which have been laid down in the Civil Procedure Code particularly in case where the rent law is silent. Order XVII, rule 3, C.P.C. envisages that where any party to a suit has failed to produce evidence in time which has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith. Even about this provision it has been consistently held by the superior Courts that provisions of Order XVII, rule 3 are penal in nature and should be construed strictly and stringent provision of rule is not to be applied unless the case does not admit of application of any other provisions of the C.P.C. Reference can be made to the cases of Ali Afsar Khan v. Raza Muhammad Khan and another 1983 CLC 1872 and Muhammad Munir and others v. Muhammad Shafi 1983 CLC 2404.
7. ' In view of the legal position it was argued that the Rent Controller should have enquired into facts as to why the tenant was unable to file his affidavit and should have given him an opportunity to explain the circumstances before shutting out his evidence from the proceedings in totality.
8. ' Mr. Abdul Majeed Khan, Advocate for the respondent has also conceded to this legal position and has agreed that the case should be remanded. I, therefore set aside the impugned orders in both these appeals and remand the cases back to the Rent Controller, who is directed to allow tenant to produce his evidence and then decide the cases in strict accordance with law and merits. The Rent Controller is further directed to complete the remaining proceedings within two months from today. There will be no order as to costs.