ZAFFAR HUSSAIN MIRZA, J.--The respondent claiming to be the landlady of the disputed premises consisting of a house situated at Qasimabad, Karachi, filed an ejectment application initially against Mst. Farhat Ara, petitioner No.2 herein, on the ground of default in the payment of rent.
Petitioner No.2 denied that she is the tenant of the respondent and claimed that the premises belonged to her mother Mst. Khudaija Begum. In view of this defence pleaded by petitioner No.2, Mst. Khudaija Begum the mother of petitioner No.2, was impleaded as opponent in the ejectment proceedings. On the demise of Mst. Khudaija Begum her son Abdul Qayyum petitioner No.1 was substituted as her legal representative. The latter also challenged the title of the respondent and denied the relationship of landlord and tenant between the parties.
2. The ejectment application was filed in 1971 and after the lapse of 9 years the learned Rent Controller on 13th July, 1980, passed an order for the deposit of arrears and current rent. The petitioners did not comply with the said order for deposit of rent and as a result their defence was struck off and they were directed to hand over possession of the premises to the respondent.
3. The petitioners appealed before the Sind High Court against the said order. In view of the long delay that had taken place in disposing of the ejectment application, by consent of parties, the learned Judge in the High Court while setting aside the order of eviction, directed that the entire case be disposed of on all the issues on merits. Thus the case was remanded to the learned Rent Controller for decision on all the issued. In the consent order it was recorded that both the parties had undertaken to produce their evidence before the Rent Controller on 6th April, 1985, and the Rent Controller was directed by the High Court to proceed with the case from day to day.
4. On 6th April, 1985, the respondent appeared before the Rent Controller and filed affidavit of evidence but the petitioners were absent. Nevertheless the learned Rent Controller adjourned the case to give opportunity to the petitioners to cross-examine the respondent. However, even on the adjourned date the petitioners were called absent and therefore, the cross-examination was closed and also their side of evidence was closed by the Rent Controller. Subsequently the counsel of the petitioners appeared before the Rent Controller on 27th April, 1985, saying that he had not been able to contact his clients and sought time to do so. The learned Rent Controller allowed this request and the case was adjourned to another date. On the adjourned date of hearing the counsel for the petitioners submitted an application seeking permission to lead their evidence and to cross-examine the respondent. On this application notice was issued to the respondent for 18th May, 1.985, but again on the said date when the case was called up for hearing the petitioners and their counsel were absent. Accordingly the application was dismissed for non-prosecution. Then the petitioners moved the Rent Controller for restoration of their application on the ground that petitioner No.1 was present in Court and had gone to call the Advocate but in the meantime order was passed by the learned Rent Controller. After hearing the parties the Rent Controller came to the conclusion that the absence of the petitioner No.1 and the counsel was not justified since the case was fixed to be taken up on 19th May, 1985, at 8.30 a.m. In their presence. He therefore, dismissed the restoration application by his order dated 22nd May, 1985. On 28 May, 1985, after hearing the arguments in the case the learned Rent Controller passed order of eviction of the petitioners from the disputed premises.
The petitioners challenged the aforesaid order of the Rent Controller in appeal before the Sind High Court but a learned Single Judge of that Court dismissed their appeal by judgment dated Ist September, 1985.
6. Learned counsel appearing in support of this petition for leave to appeal from the judgment of the High Court mainly contended that the order of eviction is bad in law. In that the learned Rent Controller had .Failed to give opportunity to the petitioners to produce their evidence in violation of the directions given by the High Court in the remand order. In this behalf learned counsel submitted that it was his fault that he vas unable to convey to the petitioners that they had to produce evidence before the Rent Controller on 6th April, 1985. He further submitted that the learned Rent Controller was also not justified to reject the application for restoration as sufficient cause was shown for the absence of the petitioners and their counsel.
7. After hearing the learned counsel at length we are unable to find any force in the arguments advanced by him. From the narration of facts in the foregoing part of this order it will be observed that this is not a case of denying opportunity to the parties to produce evidence in rebuttal. Rent Controller, as found by the High Court had given sufficient opportunity to the petitioners to meet the evidence produced by the respondent and adduced their defence in rebuttal, but they failed to avail of this opportunity It was for the learned counsel to have taken care to intimate his clients with regard to the contents of the remand order which was apparently passed with his consent in his presence. Therefore, there appears no justification for their absence on the date fixed by the High Court for the parties to appear before the Rent Controller and produce their evidence in the remanded proceedings. Nevertheless the learned Rent Controller, in spite of the direction of the High Court to proceed from day to day, gave opportunity to the petitioner and adjourned the decision of the case. But in spite of that no proper steps were taken to pursue the matter diligently.
The two Courts below have found that the petitioners were negligent and that there was no sufficient cause for their absence at the time their application for restoration was called up in Court. These are essential questions of fact and it will not be proper to reopen them at this stage.
No other error of law in the proceedings was pointed out by the learned counsel for the petitioners.
8. There is no merit in this petition which is accordingly dismissed.th