This judgment will dispose of SA.O. No.5 of 1991 as well as connected SA.Os. Nos. 6 and 7 of 1991 in which common questions of law and fact are involved.
2. Brief facts of 'the case are, that the appellant/landlord instituted a petition for eviction of respondent No.1 from the Property No.10-B, situated in Karkhana Bazar, Vehari. Respondent No.1 wag in occupation of one shop in the said property at a monthly rent of Rs.600. The eviction was sought on the twin grounds of personal need and default in payment of rent'(from August, 1987 to January, 1988).
1 3. The petition was resisted by the tenant/respondent N6.1 who filed his written statement which gave rise to the following issues:-- (1)Whether the petitioner . Is entitled to the possession of the disputed property in view of. The para. No. 6, clause 1. Of the petition? OPP.
(2) Whether the respondent is willful defaulter? OPP
(3) Whether the petitioner, requires the impugned property for the bona fide personal use? OPP.
(4)whether the application is mala fide? OPR
(5) Whether the application is collusive? OPR
(6) Relief.
4. The learned Rent Controller recorded findings on Issues Nos.2 and 3 in favour of the petitioner/landlord and ordered eviction of respondent No.1 from the disputed shop vide his order dated 9-12-1989.
5. The tenant/respondent No.1 preferred an appeal before the learned District Judge which was entrusted to the Addl. District Judge for disposal. The first Appellate Court accepted the appeal vide his order dated 15-7-1990 and remanded the case of the Rent Controller primarily on the ground that evidence was recorded by the Trial Court in one case and its copies were placed on the riles of the connected petitions. The learned Rent Controller Was directed to decide the matter afresh after recording evidence of the parties.
6. The appellant's learned counsel contends that the first appellate Court grossly erred in law in remanding the case to the Trial Court. He submits that the tenant had never raised an effective protest against the procedure adopted by the Rent Controller. He adds that no prejudice was caused to respondent No.1 by the mode of disposal of the ejectment petition. In support of his contention he places reliance on the cases of Muhammad Aslam and another v. Imam Bakhsh and 2 others 1980 SCM R 879; Maj. Retd. Fazal Muhammad Khan v. Sardar Khan and 3 others PLD 1980 Lah. 33; Sh. Muhammad Ashraf v. Sh. Muhammad Almas PLD 1980 Lah -52; Muhammad Usman v.
Wali Muhammad and 4 others 1985 CLC 1669.
7. On the other hand, the learned counsel for respondent No.1 submits that the Rent Controller ought to have recorded evidence in each ejectment petition separately and that he committed an irregularity by recording evidence in one case and placing copies of the statements on the files of the other cases
8. Under the law, a Rent Controller is not bound by the technicalities of the Civil Procedure Code and can evolve his own procedure as held in the case of Khushi Muhammad v. Khadeja Hakeem and another PLD 1976 Lah.
99. However, he is not debarred from following salutary principles of the C.P.C. And may even follow the technical provisions of the Code. In the present case, evidence was recorded in one case and its copies placed on the riles of the other two cases as facts in both the cases were identical. The tenant/respondent No.1 did not raise an effective protest against the mode of disposal of the petition by the Rent Controller and tacitly consented to it. Had the ultimate decision gone in his favour, he would not have raised any objection at the mode of disposal of the ejectment petition. However, when the decision went against him he has chosen to object to the procedure adopted by the Rent Controller. The question whether the above mode of disposal of the ejectment petitions was legal or not was considered in the case of Sh. Muhammad Ashraf v. Sh Muhammad Almas PLD 1980 Lah. 52 in which it was held as under- "It is no doubt true that in Malik Aman v. Haji Muhamad Tufail (1) also the evidence of both the parties was recorded in one case and copied verbatim in other six cases, the witnesses having been subjected to examination and cross-examination in one only it was held that this was a case where the parties have not been given an opportunity to cross-examine the witnesses in each case separately and the proceedings resulted in grave prejudice to the tenants-appellants. This principle cannot be applied to the facts of the present case in which it appears that there was implied consent of the appellants in the procedure adopted by the Rent Controller. In the unreported Supreme Court case of Muhammad Aslam v. Imam Bakhsh (1) similar question was raised. The contention was repelled and it was held that the "trial continued for a period of about three years, and during all that long period no objection of the present kind was raised before learned Civil Judge. This implies that the procedure aforesaid was adopted with the consent of the parties, who were duly represented by their respective counsel. The point was not raised either in the memorandum of appeal or at the time of arguments before the learned Additional District Judge and in these circumstances the High Court refused to attach any importance to the same.
We agree with the High Court that on the facts in the peculiar circumstances of this case, it was too late to raise this plea before the High Court and we should say now before this Court, when in the relevant Courts below the mode of recording evidence and maintaining the record was not objected at any stage." The cases before their Lordships of the Supreme Court were, however, cases in which a particular procedure has been provided by the Code of Civil Procedure, but no such procedure is provided in the West Pakistan Urban Rent Restriction Ordinance, 1959. It is for the Rent Controller as persona designate to adopt any procedure. In these circumstances, the procedure evolved or adopted with the consent of the parties impliedly or expressly cannot be commented upon unfavorably."
A similar view was expressed in the case of Muhammad Usman v. Wali Muhammad and 4 others 1985 CLC 1669. The judgment in the case of Malik Aman v. Haji Muhammad Tufail PLD 1976 Ldh. 1446 relied upon by the respondent's learned counsel was considered in both the above-referred judgments and properly distinguished. Moreover, respondent No.1 has ,no been able to show that he was prejudiced in any manner in his defence by the mode of disposal of the ejectment petition adopted by the learned Rent Controller. While remanding the case to the learned Rent Controller ' the learned Additional District Judge also lost sight of the fact that, at least, in one case evidence was properly recorded and there was no justification whatsoever to remand the said case. As regards the other two cases, respondent No.1, who was duly represented by a counsel would be deemed to have impliedly consented to the procedure adopted by the Rent Controller and could not be permitted to turn round at a belated stage to object to it when the decision of the case went against him.
For the foregoing discussion, I accept the appeal, set aside the impugned remand order and direct that the petitioner's appeal should be disposed of by the learned Additional District Judge on merits in accordance with the law, preferably within a period of 4 months (after the receipt of the order of this Court). The. Parties are left to bear their own cost.
A.A./M-474/1