' Ejectment Petition No,39 of 1992 was filed by one Abdul Khaliq (herein after referred to as respondent) under section 17 of the Cantonments Rent Restriction Act, 1963 before the Controller of Rents (Peshawar Cantt.) against Sabz Ali (hereinafter referred to as appellant) and one Dr. Muhammad Hashim Wahaaj.
2. It was averred in the petition that respondent is the landlord and owner of Shop No,33, Khybr Medical Centre, Dabgari Gardens, Peshawar Cantt. As he has purchased the same from one Banat Gul through a registered sale-deed dated 11-5-1992, and appellant being tenant under ex-owner on payment of Rs,1,550 per month as rent, henceforth has been tenant under the respondent.
3. It was also asserted in the petition that the appellant was first orally informed about the transfer of the ownership and later on 27-8-1992 was communicated by a written notice sent through registered AD post. The notice was unreserved when received back but with an endorsement by the Post Master that the addressee has refused to accept the registered A.D.
4. The new landlord (the respondent) claiming title on the basis of a registered sale-deed sought the ejectment of the appellant on the following grounds:--
(a) failure to pay rent since May, 1992 till the date of the filing of the suit;
(b) the tenant, without prior permission of the owner has sublet the shop to Dr. Muhammad Hashim Wahaaj;
(c) the petitioner (the respondent) wanted to take the shop in good faith and with bona fide intention for his personal occupation and gave undertaking to furnish security in any shape to the satisfaction of the Rent Controller that he will occupy the suit shop personally after the premises is vacated; and
(d) that the respondent (the appellant) has converted the suit shop into Ultra Sound Clinic and has opened a door in between the suit shop and another shop which has materially impaired the value and the utility of the shop in question.
5. The ejectment petition was contested filing reply by the appellant wherein he has taken the stand that there exists no relationship of landlord and tenant, that no notice about the change of ownership was served on him, that there is a civil suit pending in respect of the suit property between the present respondent and one Banat Gul as to its ownership, that the appellant is still a tenant under Banat Gul and has paid 'a huge amount as security both for the premises and for its 'good will'.
6. After the receipt of the reply the learned rent controller framed the sole issue in the case which is to the following effect:- "Whether relationship of landlord and tenant exists between the parties?"
' This being the sole issue the parties were directed to adduce their evidence.
7. This appeal is directed against two orders one dated 11-3-1997 passed ex parte and the second dated 10-4-1997 rejecting the application for setting aside the aforesaid ex pane order.
8. The circumstances which led to the passing of ex pane order dated 11-3-1997 are visibly reflected in various order-sheets of the Rent Controller. The ejectment petition was filed on 20-10-1992 and it was registered in the concerned register on 21-10-1992, the summons were issued against the respondent (the appellant) for 2-11-1992, on which date summons were received served and the order was passed that the appellant be served through registered A.D. And also through substituted service. The date was fixed for 11-11-1992 on which date the appellant appeared whereas Dr. Muhammad Hashim Wahaaj, who was respondent No,2 was placed ex parte. The appellant asked time for filing of the reply to the ejectment application, the same was granted and the case adjourned to 24-11-1992.
9. The reply to the ejectment petition was not yet filed when an application was moved by one Banat Gul claiming to be owner of the suit property to be made a party in the proceedings (in the said application instead of the name of the applicant be given as Banat Khan, the name of Abdul Khaliq was recorded). However, this application for impleadment of party was dismissed on 24-12- 1992. On the same date a last chance was given to the appellant to file written statement. Case was adjourned to 5-1-1993. On 5-1-1993 again a request for adjournment was sought by the respondent requesting for filing of the written statement, last chance was given and the case was adjourned to 12-1-1993, on which date the appellant failed to file the written reply but later on the same date reply was filed and the case was adjourned to 27-1-1993. Issues were framed on the same date and the case was adjourned for recording of the evidence of respondent for 8-2-1993.
10. The perusal of order-sheets show that the appellant has been seeking adjournments on one ground or other at the stage of recording of evidence of the respondent. Reference may be made to order-sheets dated 8-2-1993, 16-2-1993, 4-3-1993, 13-4-1993, 4-5-1993, 27-5-1993, on which date last chance was given to the appellant to make available his counsel for recording the evidence of the respondent and the case was adjourned to 10-6-1993. Again on 26-6-1993 adjournment was sought by the appellant and the case was adjourned to 29-6-1993. On 11-7-1993, 14-7-1993 two further adjournments were sought by the present appellant and the case was adjourned to 25-7- 1993, when case was called several times but the counsel for the appellant did not turn up and he was given last chance and it was specifically ordered that if on the coming date the appellant failed to conclude with the evidence of the respondent, ex parte proceeding will be enunciated. The case was adjourned to 29-7-1993. In-between certain dates were adjourned because of the transfer of the Presiding Officer. On 24-1-1994 again the appellant sought adjournment and the case was adjourned to 9-2-1994 on which date the Presiding Officer was on leave and the case was adjourned to 21-2-1994. On such date, once again the appellant sought adjournment and once again he was given last chance and the case was adjourned to 20-2-1994. On the said date adjournment was sought by the appellant and the learned Rent Controller observed that, though the appellant have been repeatedly given last chance but he is using delaying tactics and the adjournment application was rejected. Last chance was given to the appellant with a cost of Rs,500 imposed on him. Case was then adjourned to 10-4-1994, on which date the appellant sought sine die adjournment of the case but the prayer was rejected on 17-4-1997.
11. The accommodating attitude of the learned Rent Controller continued when even on 4-5-1994 the appellant was given another chance to conclude with the evidence of the respondent and so was on 11-5-1994, on 31-5-1994, on 8-6-1994, on 27-7-1994 and 14-9-1994 and the case was adjourned to 26-9-1994.
12. On 26-9-1994 the learned Rent Controller having called the case several times, ultimately proceeded ex parte and ordered ejectment of the appellant, directing him to hand over the possession of the shop to the respondent forthwith.
13. Aggrieved from ex parte order the appellant filed an application for setting aside the order and the learned Additional Controller of Rent vide order dated 25-10-1994 accepted the application.
However, observed that the matter is pending since long. It appears that this order was passed in the absence of present respondent.
14. The matter does not end here. Once again on 27-11-1994 adjournment was sought by the appellant and so on 4-1-1995 by imposing a cost of Rs,300 for adjournment. Again, on 20-3-1995 an application was filed by the appellant for adjournment. On 29-3-1995 learned counsel for the parties were present, the evidence of the respondent was also in attendance but counsel for the appellant requested for adjournment on the ground stated in the order-sheet. Last chance was given and case was adjourned to 19-4-1995. On 15-5-1995 again the adjournment was sought by the appellant. On 4-7-1995 the counsel for appellant did not turn up in time and the case was adjourned. Once again last chance was given to the appellant for recording the evidence of the respondent on 19-7-1995. On 5-9-1995 again the case was adjourned due to the appellant. This long phase of adjourned dates for recording the evidence of the respondent ended on 19-9-1995 when statement of P.W.2 was recorded and the respondent who was petitioner before the Rent Controller closed his evidence.
15. The second step, that was to be taken in the proceedings was recording of evidence of the present appellant, i,e, respondent before the Rent Controller who has then started seeking adjournments for producing his evidence first on 8-10-1995, then on 22-10-1995, on 5-11-1995. On page 38 of the original file the order sheet also reflects the conduct of the present appellant where the Controller of Rent has observed that he is adopting delaying tactics in the disposal of the petition. On 4-6-1996 again the appellant failed to produce his evidence and so was on 26-4-1996.
Similarly, adjournment was sought by the appellant on 25-9-1996 and then he was given last chance on 30-9-1996 and the case was adjourned to 2-10-1996. Thereafter, the two dates were adjourned as certain official witnesses of the appellant did not turn up and he was given 'Dasti- Summon'. On 22-10-N96 again adjournment was sought by the appellant and repeating the same on 2-12-1996 and also on 10-12-1996. On 12-12-1996 and on 22-12-1996 no proceeding could be held again as counsel for respondent, i,e, appellant was absent.
16. It was on 16-1-1997 that the Additional Controller of rent observed that evidence of the respondent has been close since September, 1995 and the appellant is seeking adjournments thereafter. In this situation, the statement of appellant was recorded to the effect that he would conclude his evidence on the next date (The said statement is available on page 176 of the original file) and the case was adjourned to 16-2-1997.
17. The controversy started when on 16-2-1997 the Presiding Officer was on leave and the case was adjourned to 2-3-1997 by the Reader. It so happened, that 2-3-1997 was declared a holiday (Sunday) as the Government decided to declare Sunday as no working day instead of Friday. On 3-3-1997 the order-sheet was written under the signature of Additional Controller of Rent and the case was adjourned for evidence to 6-3-1997 on which date the Presiding Officer being sick, the case was then adjourned by the Reader to 11-3-1997 on which date the order impugned was passed ex parte.
18. A perusal of order dated 11-3-1997 shows that the same was passed after discussing the case on merits on the available record and evidence, and ultimately it was ordered that appellant shall vacate the shop in question within 30 days.
19. The said ex parte order was sought to be set aside through an application moved on 10-4-1997 but the same was rejected by order of the even date wherein the Additional Controller of Rent has observed that as the case has been decided on 11-3-1997 on merits hence application has got no scope and the same was consigned.
20. On the rejection of setting aside ex pane order, the present appeal has been filed wherein two orders are under-challenge, first passed on 11-3-1997 and the later on 10-4-1997.
21. The learned counsel for the appellant argued that the Rent Controller has failed to give fair opportunity to the appellant to produce evidence in defence, in rebuttlal of ejectment application, that, the pendency of civil suit as to the ownership to the respondent before Civil Court has precluded the Rent Controller to adjudicate on the rights of the appellant as to whether he was tenant under the respondent or not, that no notice was ever served on the appellant in respect of alleged change of ownership from which the appellant could have come to know as to the change of his landlord, that the objection from the respondent's side which is likely to be taken as to the competency of the Rent Controller in setting aside ex parte order is not correct as the Rent Controller is vested with the power to set aside an ex parte order by applying the principle of Order 9, rule 13 of C.P.C. Learned counsel also argued that although the provisions of C.P.C. Are not stricto senso applicable to proceedings before the Rent Controller yet, by virtue of case-law laid down on the subject the Rent Controller is vested with all powers of the Civil Court under the C.P.C. And is to act in accordance with procedure as prescribed in the Civil Procedure Code. The learned, counsel also argued that order dated 11-13-1997 has merged into order dated 10-4-1997 and hence the appeal is well within time as in his view the last order passed was on 10-4-1997 while appeal was sailed on 29-4-1997. Learned counsel also contended that notwithstanding the fact, that earlier the case was adjourned on account of applications filed by the appellant but on 16-1-1997 the appellant appeared in person and gave a written statement that on the next date he will produce his evidence. It was argued that on the coming date, i,e, 16-2-1997 the Presiding Officer was on leave hence the appellant was precluded to produce his evidence. Similarly on the adjourned date of 2nd March, 1997 being declared a weekly holiday the appellant could not produce his evidence.
It was argued that an affidavit has been filed by that appellant that on 3-3-1997, he appeared before the ministerial staff of the Rent Controller to know about the next date in terms of Order 17, rule 4 but he was informed that he will be communicated the next date through a notice it was also argued that on 6-3-1997 once again the Presiding Officer got sick and the case was fixed for 11-3- 1997 but all these dates were adjourned at the back of the appellant. Therefore, it was argued that it was incumbent upon the Rent Controller to have given an opportunity to the appellant to comply with the order of the Rent Controller passed on 16-1-1997. In support of contentions the learned counsel relied on 1991 CLC Note 368, p.277 (Chaudhry Muhammad Siddique v. Anwar Shah and others. The facts of the case are quite distinguishable from the case of the present appellant and in the case cited above the application of the landlord for setting aside the order was rejected without allowing the landlord to lead evidence in proof of service on tenant of the notice allegedly addressed. The same judgment is also relied on in support of the argument that order dated 10-4- 1997 being interim order hence appeal against* such order in terms of section 24 of Cantonments Rent Restriction Act was within time: ' PLD 1964 Lahore page 536 (Syed Nafees Ahmad Zaidi v. S.M. Hussain) cited in support of the contention that the provisions of C.P.C. Are applicable before the Rent Controller and it was within compass and powers of the Rent Controller to set aside ex parte order on the principle of Order 9, rule 13.
' PLD 1972 Lahore 603 (Muhammad Aslam Mirza v. Mst. Khurshid Begum) was also relied on for the same purpose, i,e, that where order of ejectment of the tenant was passed by the Controller ex parte on default on the part of the tenant it was held that the Controller can set aside that ex parte order where party could show that it was precluded from appearance on the relevant date on account of sufficient cause.
1986 CLC 1241 (Mistri Muhammad Hassan v. Haji Said Muhammad and others) was relied upon in support of the argument that Court though competent to pass decree without recording evidence, however, Courts are not absolved of their responsibility being satisfied about the proprietary and genuineness of the claim on the basis of averments made in the plaint. It was further held that such discretion should not be used arbitrarily and in a fanciful manner.
22. Learned counsel appearing for the respondent submitted that the appeal is hopelessly time- barred, the final order being passed on 11-3-1997, that in the heading of the appeal before this Court, the appellant has challenged two orders and that in grounds of appeal all the objections raised both on law and facts are relatable to order dated 11-3-1997 except ground (f) in which reference has been made to order dated 10-4-1997. It was also argued that the applications for setting aside ex parte order before the Rent Controller are misconceived. The learned counsel for the respondent mainly stressed on the conduct of the appellant who has sought score, of adjournments and in his view the object was to delay the disposal of the ejectment petition. He also argued that the principle of Order 9, rule 13 are not at all attracted to the facts of the case.
Learned counsel also referred to Order 17, rule 5 and submitted that if on 16-2-1997 the Presiding Officer was on leave then it was the duty of the appellant to have pursued his cause by putting in appearance on the said date before the ministerial officer of the Court and should have obtained a 'Parcha-Peshi'. He also argued that on 2-3-1997, i,e,, the adjourned date, the appellant should have complied with the procedure as laid down in Order 17, rule 4 by appearing in Court on the next date following that day on which the date fixed was declared holiday. Learned counsel also argued that the main object of the present petitioner is only to prolong the agony of the landlord who had become the owner of the property through a registered sale deed duly executed in his favour. He also argued that earlier the appellant was orally informed by the respondent as to the change of ownership and then a registered A.D. Notice was sent which was returned with the report of the postman to the effect that the appellant has refused to accept the registered A.D. Learned counsel for the respondent also argued that the order 11-3-1997 cannot be termed to be an order liable to be set aside in terms of Order 9, rule 13, C.P.C. Because the requirements of Order 9, rule 13 are that the defendant must prove that summon was not served on him or that he was prevented by any sufficient cause from appearing when the suit was called for hearing. It was submitted that the learned trial Court has earlier set aside ex parte order in the interest of justice and thereafter has given more than sufficient opportunities to the appellant to adduce his evidence. It was also argued that the evidence of the respondent was recorded in the presence of the appellant and he was given full opportunity to cross-examine the witnesses. Next it was contended that the appellant has nowhere denied that he is not tenant but has taken shelter under the cover of pendency of civil suit as to the ownership of the respondent which fact of the suit property is not relevant for the disposal of the ejectment petition.
23. Learned counsel for the respondent in support of his arguments, has relied on 1997 SCMR 1781 (Sabz Ali Khan v. Bismillah Khan and another) Interestingly, the same Sabz Ali Khan is appellant in the instant appeal. The questions of law and facts in the cited case are almost exactly the same. In that case too, consideration for dismissal were, to delay in the disposal of the case. In (Mst. Zahida Begum v. Muhammad Shafique) PLD 1997 SC 73, the adjournments were sought by the tenant wherein he failed to produce his evidence and the Rent Controller closed the evidence, were considered and the conduct of the tenant was condemned. In cases M/s. Nazir Muhammad and Brother v. Islamic Republic of Pakistan 1990 CLC 729; Col. (Rtd.) Sadiq Hussain Sheikh v. Lt.-Col. Farooq Ahmad 1987 SCMR 1887; Moeenuddin and others v. Sibghatullah 1985 SCMR 1103; Akbar Hussain v. Wadero Muhammad Tayyab PLD 1996 Kar. 545, were relied for the same purpose i,e, that the delay was occasioned by the acts of the tenant or the party interested in prolonging the matter, such conduct was taken against the parties. Shahid Hussain v. Lahore Municipal Corporation PLD 1981 SC 474 was cited in support of the submissions that where suit is dismissed under Order 17, rule 3 for non-production of evidence the Court was competent to decide the case on evidence already recorded. In Abdul Hassan v. Sardar Muhammad Usman Jogezai 1988 CLC 2429, where the landlord failed to produce evidence in spite of opportunity given resulted in closure of evidence. Similarly in Saifullah and another v. Muhammad Riaz and others 1996 MLD 536, the same view was taken.
24. In Executive Engineer, Peshawar v. M/s. Tour Muhammad and others 1983 SCMR 619, the Honourable Supreme Court while referring to Order 17, Rule 3 observed as under: "Order XVII, Rule 3, C.P.C. Applies where a party who is granted time to perform some act, not only fails to do so but is also absent on the date to which the hearing is adjourned. It is immaterial whether the adjournment was granted at the instance of the party or for other reasons. Where a defendant does not appear at an adjourned hearing, this rule applies irrespective of whether he appeared at the first hearing or not and the Court has to exercise its discretion; its hands are not tied by the previous ex parte order."
' Similarly in Amir and others v. Sardar Ahmed 1985 SCMR 1223(2), it was observed: "---Art. 185(3)---Civil Procedure Code (V of 1908). 0 XVII, R.3---Defendant failing to produce evidence---Suit for possession decreed on basis of evidence led by plaintiff---Decision upheld in appeal/revision--There being no flaw in impugned judgment, dismissal of revision, held, justified on facts apparent from record--- Leave to appeal refused."
25. The admitted position is that, the appellant accepts his position to be a 'tenant' and does not claim any other status, except that he does not accept the respondent as landlord.
' Respondent in the petition for ejectment has asserted that he has purchased the suit shop from its original owner through a registered deed dated 11-5-1992 duly exhibited at the trial. He himself has appeared as witness and produced an official of post office to prove that, the appellant was first orally informed about the change of ownership and then a Registered A.D. Written notice addressed to him was sent, which according to evidence and material on record could not be served on appellant as he 'refused to accept the delivery of registered A.D.
26. Evidence of the respondent was recorded and the appellant was given full opportunity to cross- examine the witness. Thus, it cannot be said that the case of appellant can be acquitted with that where one party was totally unheard.
26-A. A very detailed history of the case pending trial has been given the preceding paras. Of this judgment, purpose whereof was to show that appellant is solely responsible for not taking the advantage of score of adjournments and failed to produce his evidence. Particularly when on 16-1- 1997, he gave written statement to Rent Controller that he would produce his evidence on 16-2- 1997. He could have put himself in the witness-box to appear as his own witness on 16-1-1997 and later produce remaining evidence. It appears that appellant never intended to produce evidence but was prolonging the disposal of ejectment petition, as he was enjoying the possession of the shop without paying any rent to respondent. If he does not accept the respondent to be his landlord, then if he was tenant under the previous owner, could have produce the receipts in respect of payment of rent to the owner whom he considered to be the landlord, but all this he could have done, at least, by appearing in person which he never did.
27. The question, that there is civil suit pending about the title of the respondent, does not give any protection to a tenant, he is to make payment of rent to the claimant, who has prima facie established his ownership and, per evidence, served notice on him about the change of ownership and has become landlord.
28. Ex parte order of ejectment was passed on 11-3-1997, and application for setting aside the order was filed on 10-4-1997. Irrespective of the legal position, whether any such application could be filed and adjudicated upon, once again the conduct of appellant is to be seen that he waited for 29 days to file the application i,e, one day short of time limitation, which is taken as either review or for setting side ex parte order. He should have challenged the order by filing an appeal, as contemplated in the Act.
29. Under section 17 of the Cantonments Rent Restriction Act, 1963 there are prescribed conditions on the basis of which a landlord can seek eviction of a tenant. Under section 27 of the Act the Rent Controller shall not pass any order under section 17 unless he has held an inquiry. Meaning thereby, that the proceedings in ejectment case are not stricto senso suits in term of C.P.C. The proceedings before the Rent Controller are conducted as nearly as possible in accordance with the procedure laid down in the C.P.C.
30. The perusal of the record indicates that on 16-1-1997 the case was adjourned when appellant made statement before the Rent Controller that he will produce his evidence on 16-2-1997 on which date the Presiding Officer was on leave. Therefore, under Order 17, rule 5 it was the duty of the parties to appear in Court to mark their attendance and the attendance of the witnesses and get the next date. The case having been adjourned due to the absence of the Presiding Officer was posted to 2-3-1997 which date was declared closed holiday (Sunday instead of Friday, therefore, once again under Order 17, rule 4 it was obligatory of 'the part of either of the parties to appear before the Rent Controller on the next day following the holiday and get a date. It appears that throughout the object of the tenant remained to prolong the proceeding and he never bothered to pursue the case with promptness and diligently.
' In this view of the matter, I hold that there are no merits in this appeal and the same is dismissed with costs. Civil Miscellaneous has become infructuous.
' As the appellant is in occupation of the suit shop, and is running business therein, he is given further latitude by allowing him three months' time from today to retain the possession of the shop and on or before the expiration of such period shall deliver the possession of the shop to the respondent.