Mr. Muhammad Akram Siddiqui holding brief for Mr. Abdul Latif Channa, counsel for the appellants, and states that the latter had already filed his counter-affidavit of Civil Miscellaneous Application No. 196 of 1995 and has also filed the written arguments alongwith the citations as ordered by this Court on 27-8-1995. None is present for the respondent. Even the perusal of the diary shows that on the last date of hearing the Advocate for the respondent was called absent. The diary shows that on 27-8-1995 and 7-9-1995 also the advocate for the respondent was not present and some other Advocate has held brief on behalf of the respondent.
2. This is an application under section 151, C.P.C. Name on behalf of the respondent requesting therein that the order dated 1-9-1994 passed by this Court on Civil Miscellaneous Application No.820 of 1994 directing the respondent to deposit the rent till the final disposal of the appeal, may be recalled. To this application, the appellant's son/legal heir has filed his objections in the form of his counter-affidavit, to which no rejoinder is filed. On 16-4-1995, 1 heard Mr. Dilawar Hussain, counsel for the respondent and Mr. Abdul Latif Channa, counsel for the appellant and the order was reserved. On 31-5-1995, both the learned Advocates .For the parties were present and they agreed that the main appeal be heard finally alongwith Civil Miscellaneous Application No. 196 of 1995 and they further agreed to file their written arguments before the next date of hearing to be fixed after vacations. On 27-8-1995 the above matter was fixed, when none appeared for the appellant and Mr. Mukhtiar Hassan holding brief for Mr. Dilawar Hussain, Advocate for respondent attended and requested for the adjournment. While adjourning to 7-9-1995, it was observed that both the learned Advocates shall file their written arguments. On 7-9-1995 again the learned Advocate for the parties neither appeared in person nor filed their written arguments as such the matter was adjourned to a date in office. On 1-10-1995 Mr. Latif Channa, advocate for the appellant, was present and he filed his written arguments but none appeared for the respondent, but keeping in view the difficulties of the citizens in Karachi due to strike call the matter was adjourned for today but today the position remained same.
The contention of Mr. Dilawar Hussain is that by passing the order dated 1-9-1994 on Civil Miscellaneous Application No.820 of 1994 to the extent of directing the respondent to deposit the rent in Court till the final decision of the appeal, the respondent has been condemned unheard as he was neither heard nor afforded any chance of hearing before passing of the said order. He further contended that the ejectment application was dismissed by the Rent Controller for want of jurisdiction in the light of the decision of the Hon'ble Supreme Court of Pakistan in Civil Appeal No. 123-K of 1987 dated, 7-4-1991, and that the said order appears to have been passed inadvertently and the same is obtained by the appellant by misrepresentation. He also submitted that the respondent has already filed his objections to Civil Miscellaneous Application No.820 of 1994 and the appellant has also filed his affidavit-in-rejoinder as such the same is matured for hearing, hence it will be just and proper to recall the said order and decide the applications on merit, in the interest of justice. In reply Mr. Abdul Latif Channa submitted that the order in question is not obtained by. Any misrepresentation. Upto Hon'ble Supreme Court of Pakistan, the respondent was directed to continue depositing the rent; and since there exists relationship of landlord and tenant between the parties the rent order passed by this Court on Civil Miscellaneous Application No.820 of 1994 on 1-9-1994 does not suffer from any mistake or illegality, as such the same cannot be recalled and the application under reply is misconceived and deserves dismissal. He also submitted that the respondent is enjoying the possession of the premises without payment of any rent. In the end, he stressed that since the order for deposit of rent has not been complied with by the respondent as such his defence be struck off.
I have given my anxious thoughts to the circumstances of the case and I reached to the conclusion that since the direction, to the respondent, to deposit the rent till final decision of the appeal, in order dated 1-9-1994 passed on Civil Miscellaneous application No.820 of 1994 was given in his absence and no date was fixed for deposit of rent as such his defence cannot be struck off.
Anyhow Civil Miscellaneous Application No. 196 of 1995 stands dismissed.
2. Mr. Abdul Latif Channa submitted that on the same act of evidence the ejectment order was passed which was even maintained by this Court in First Rent Appeal No.314 of 1985 in earlier round of litigation between the parties but on remand by the Hon'ble Supreme Court of Pakistan, the Rent Controller has dismissed the ejectment application, for want of jurisdiction. Point arised merits consideration. Admit. Notice.
3. Since the contentions of both the learned Advocates of the parties have been considered while deciding Civil Miscellaneous Application No. 196 of 1995, 1 direct the respondent to deposit all the arrears of rent upto the month of October, 1995 in this Court at the rate of Rs.90 per month within a period of 2 (two) months from today and also to deposit future monthly rent at the same rate on or before 10th of each calendar month, commencing from November, 1995, till the final disposal of the appeal. The rent, if so deposited shall not be allowed to be withdrawn by the appellant till the disposal of appeal. Application stands disposed of accordingly.
Since it is an old dispute between the parties pending since 1977, 1 direct the office to fix the above appeal for regular hearing, just after winter vacations. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.