' This order will dispose of Second Appeal from Order No, 70 of 1996 and Second Appeal from Order No,71 of 1996 as common questions of law and facts will arise therein.
2. S.M. Khuram Wasti respondent herein, filed two ejectment petitions, against the appellant, for seeking his eviction, from a shop, located at 32 Maclagan Road, Lahore. The first mentioned ejectment petition, was filed, on the ground of default, in payment of rent from December, 1990, till October 1991. The second ejectment petition, was filed on the ground of default in payment of rent on account of non-payment of rent, with increase of 25%, in terms of section 5(A) of 1959.
3. The appellant, resisted the two ejectment petitions, denied allegations of default and subletting.
4. In the first petition, the learned Rent Controller passed an order for deposit of arrears of rent as well as future monthly rent under section 13(6) of Punjab Urban Rent Ordinance, on 25-2-1992, when following issues were framed. Issues.
(1) Whether respondent No,1 sub-let the disputed shop to. Safdar Hussain respondent No,2?
(2) Whether the respondent is a defaulter from December 1990?
(3) Whether the petition is mala fide?
(4) Whether the petitioner has no cause-of-action?
(5) Relief.
5. In the second ejectment petition, issues were framed on 9-6-1993, which were as under:- Issues.
(I) Whether the respondent is liable to be ejected?
(2) Whether the respondent has defaulted in the payment of rent?
(3) Whether the petition is not maintainable?
(4) Whether the respondent has already paid Rs,83,000 and Rs,13,000 as advance rent?
(5) Whether the respondent has suffered loss of Rs,200,000 on account of demolition of shop and Rs,30,000 for repair of the same?
(6) Relief.
6. In both the ejectments, evidence of the appellant was closed and ejectment petitions were accepted, by the learned Rent Controller, vide order, dated 9-3-1995.
7. The appellant filed two appeals. Applications for additional inquiry were also filed. The two appeals, were dismissed, by the learned Additional District Judge, vide consolidated order, dated 4-2-1996, which has been challenged, in this Court, through the two appeals.
8. Learned counsel for the appellant, argued, that the learned Additional District Judge, as well as learned Rent Controller, did not record any order, showing application of mind, to the facts involved or to the evidence available on record and on the contrary, the ejectment petition, as also the appeal were decided, on assumption, that the evidence of the appellant having been closed, the issues stood decided in favour of the respondent, notwithstanding the fact, that without proving default and subletting, the respondent was not entitled to seek eviction. He further submitted, that the appellant produced evidence on different dates, which is borne out from the record and that his evidence was present on the day, when the order for closing the evidence of appellant was passed and that the appellant had filed affidavits of the witnesses alongwith- the affidavit of learned counsel for the appellant, in support of the plea, that the evidence was present before the Rent Controller, who illegally closed the same,- but the learned Additional District Judge, without attending to the affidavits, or to the reasons given in the application, refused additional inquiry, by making reference to extraneous circumstances and irrelevant factors. Lastly, it was submitted, that the respondent having led evidence, the onus of issue being upon the respondent, the learned Rent Controller as well as the learned Additional District Judge, were duty bound, to appraise the evidence and to record findings supported by independent reasons, for upholding the plea and having not done so, the orders passed by them, were not sustainable.
9. Conversely, the respondent, who is an Advocate, argued the case himself and submitted that the appellant had produced a forged receipt and that the appellant having failed to produce any evidence, the learned Rent Controller was well within his jurisdiction, to close the evidence. He further submitted, that it was not necessary for the learned Rent Controller, to examine the evidence led by the respondent and that the ejectment order could be granted, simply because the appellant had failed to lead any evidence in rebuttal.
10. The submissions, made on behalf of the parties, have been given due consideration, in the light of the record of the two cases.
11. In the first ejectment petition, eviction of the appellant was applied, on the ground of default in payment of rent from December, 1990 to October, 1991 and also subletting of the shop. The ejectment was resisted, on the ground of certain payments having been made. The respondent, produced evidence, comprising of the statement of Haji Peryaiz, A.W.1, Muhammad Balal A.W.2, Noor Muhammad A.W.3 and S.M. Khuram Wasti (respondent) R.W.4. Record indicates, that the evidence of respondent was concluded on 29-6-1994, whereafter, the case was fixed for the evidence of appellant. Order-sheet, shows, that on 10-10-1994, the witnesses of appellant, namely, Javed Iqbal, Salim Jan and Nadeem Khan were present when the case was adjourned to 12-10- 1994 i,e, (just after one day) as the Court timings were over. Order, dated 12-10-1994, indicates, that the learned Presiding Officer, had taken short leave and, therefore, the evidence could not be recorded. Order, dated 20-12-1994, also indicates, that the evidence of appellant was present when the case was adjourned at the joint request for 16-1-1995. Since the Advocates were on strike, on 16- 1-1995, therefore, the case was adjourned to 26-1-1995. On this date, the appellant was present in person when the case was adjourned to 31-1-1995. It appears, that on 6-2-1995, the case was adjourned to produce receipts, on 20-2-1995 and on 20-2-1995 it was adjourned to 21-2-1995 for receipts. All of a sudden on 21-2-1995, the learned Rent Controller, gave the last opportunity for evidence and on the next date i,e, 9-3-1995, which is crucial date, the evidence of the appellant was closed, on assumption, that he had not brought the witnesses. On the same date, the learned Rent Controller, accepted the adjourned petition and, amazingly, gave two days for vacation of the rented shop.
11-A. The plea raised by the appellant, before the appellate Court was, that the witnesses of the appellant alongwith learned counsel for the appellant were present in the Court, when the case was ordered to be taken up after interval and when after interval, the appellant, alongwith his counsel and witnesses, reached the Court of learned Rent Controller, it was found that the learned Rent Controller, had already closed the evidence and left the Court in connection with the election of P.C.S. Judicial Officers Association. By making reference' to the dates, on which the evidence of the appellant was present, a prayer was made, for additional inquiry and opportunity to produce evidence. In the application filed before the learned Additional District Judge, alongwith the appeal.
This application was supported by affidavit of Ch. Inayat Ullah, Advocate, learned counsel for the appellant, who had represented the appellant before the Rent Controller. Additionally, diffidavits of Javed Iqbal, Salim Jan and Nadeem Ahmad were also filed, in support of the plea, that the witnesses were present, on the date, when the evidence was closed.
11-B. The learned Additional District Judge, did not at all attend to the contents of the application or the affidavits annexed therewith, though the allegations raised therein and the facts stated in the application and the affidavits, did, require, some inquiry, from the Rent Controller, as to the correctness thereof, particularly when no counter affidavit, was given, either by respondent or by his counsel. The affidavit of the learned counsel for the appellant, making serious grievance, as to the conduct of the learned Rent Controller, should have invited attention of the learned Additional District Judge but unfortunately, he skipped over the matter and proceeded to dispose of the appeal, in a mechanical manner. The impugned order, passed in appeal, indicates, that the learned Additional District Judge was influenced by some of the dates, on which the case was adjourned for the evidence of the appellant but, completely overlooked, the order-sheet, which was indicative of the fact, that the evidence of the appellant, had remained in attendance on certain dates, on which the same could not be recorded. This was, thus, not a case, in which, it could be said that the appellant had completely failed to take steps for the production of evidence.
12. Be that as it may, reference to the previous dates was not relevant, since the important question was, as to whether the evidence of the appellant was present on 9-3-1995, when the evidence was closed and whether, the learned Rent Controller, had directed the parties to appear in the later part of the Court time for recording of the evidence and also, as to whether, the learned Rent Controller, had left the Court for attending some election of P.C.S. Judicial Officers Association. Obviously, if the facts were, as the appellant, had stated in the application and the affidavits, then the order closing evidence, could not be justified. The serious allegations made in the application supported by the affidavit of the learned counsel and also the witnesses, could not be overlooked, simply, on the ground that previously some adjournments were allowed to the appellant. The reasons, which prevailed with the learned Additional District Judge, for justifying the order of the Rent Controller, do not sustain, in the circumstances of the present case. In the presence of unrebutted affidavits, the appellants were entitled, to indulgence of the Court and should have been allowed with an opportunity to produce evidence. Law always favour decision on merits, rather than indulgence in technicalities. Non-suiting the parties, by strict adherence to the technicalities, unless insurmountable, has never been approved, by the superior Courts. Even otherwise, the grant of two days, for vacation of the rented premises, was indicative of the fact that the learned Rent Controller, was proceeding in too. Much haste. The manner in which, the proceedings were held, by the learned Rent Controller and the circumstances, in which the evidence was closed, does not justify the order and therefore, the consequent eviction order passed by learned Rent Controller could not sustain.
13. Another reason, for setting aside the- impugned orders, is, that the learned Rent Controller, after closing the evidence, did not record any independent reasons for the findings against the issues already framed. Admittedly, the ejectment petition had been filed by respondent on the ground of default and subletting. Evidence had already been led by the respondents, who was under legal obligations to prove existence of default and also the plea of subletting Mere fact, that the evidence of the appellant was closed, would not mean, that the allegations raised by the respondent, would automatically stand proved. Since evidence had already been led, it was the duty of the Rent Controller, to reappraise the entire evidence and then to record findings supported by independent reasons, to determine in the allegation of default and subletting were prover beyond doubt. Unfortunately the learned Rent Controller did not deal with the evidence nor considered any of the oral as well as documentary evidence and proceeded, to assume default and sub-tenancy, with the remarks, that the evidence of appellant having been closed, he could not prove that he was not a defaulter. The order passed by the learned Rent Controller was thus perfunctory and did not satisfy the requirements of law. Similar error was committed by the appellate authority. The order passed in appeal, is indicative of the fact that the learned Additional District Judge, did not reappraise evidence nor considered the merits of the decision rendered by the Rent Controller nor attempted, to determine, as to whether the findings of default and subletting, could sustain, on the evidence led by respondents. On the contrary, he, proceeded to dismiss the appeal, after observing, that the appellant could not produce evidence, despite being given certain opportunities. It is repeatedly laid down that the judgment should indicate, independent application of mind, and reappraisal of the entire evidence. Under section 15 of Punjab Urban Rent Restriction Ordinance, the appellate authority, was required, to decide the appeal, by reappraising the entire evidence. It was in fact a rehearing of the entire case. Although the order of the learned Rent Controller was challenged seriously, on the ground, that the same was not reflected by the evidence on record and that he has not decided the issue involved, by any independent reason, yet the learned Additional District Judge, without taking into consideration, the evidence on record, or the defects in the order of the Rent Controller proceeded to dispose of the appeal mechanically. The disposal of the appeal, in the manner, as has been done in this case, cannot be said to be a lawful and proper disposal of the appeal.
14. In the second ejectment petition, the circumstances are almost similar. Record indicates, that the evidence of appellant was present, on 8-11-1994, on 4-12-1994, on 20-12-1994 but the same was not recorded and the case was adjourned for one reason or the other. Even on 26-1-1995, the evidence of appellant was present when the case was adjourned to 31-1-1995. On 6-2-1995, the case was adjourned for receipts and evidence. Some of the receipts were produced on the next date i,e, 20-2-1995 when the case was adjourned to 21-2-1995. On this date, the Rent Controller, adjourned, the case, as a last opportunity, for production& evidence by the appellant and on the coming date, , i,e, 9-3-1995 the evidence was closed. In this case, the appellant, raised a similar allegation, that his evidence was present on the given date, when the same was ordered to be recorded after interval and after interval, it was observed that the learned Rent Controller has already closed the evidence and left the Court for attending some election of P.C.S. Judicial Officers Association. In this case too, application of additional inquiry, supported by affidavits of Muhammad Javed Iqbal, Nadeem Ahmad and Saleem Ahmad (witnesses), was filed, which affidavits were never rebutted by counter-affidavits. The learned Additional District Judge, in the consolidated order, disposing of the two appeals, did not attend to the circumstances given in the affidavits and proceeded to dismiss the appeal. For the reasons, noted herein above, the evidence in the case, could not be closed and in any case, appellant had made out a good case for getting at least one opportunity for producing evidence which was illegally denied by the appellate authority. On merits, the ejectment was filed, on ground, that enhancement in rent in terms of section 5-A of Ordinance VI of 1959 was not made. The learned- Rent Controller did not discuss the evidence nor ever determined the issue on merits but proceed to decide the issues against the appellant, on assumption, that the evidence having already been closed, the appellant had failed to rebut the issue by not producing the evidence and on this assumption, he proceeded to decide the issues, against the appellant. As a matter of fact, he was under- legal obligation, to discuss the evidence and decide the issues on merits by recording findings, supported by independent reasoning. In appeal, the learned Additional District Judge, did not reappraise the evidence nor recorded any independent reasoning for upholding the order of the Rent Controller but on the contrary, after discussing question of grant of opportunity, the learned Additional District Judge, without attending' the issues on merits, proceeded to dismiss the appeal, which cannot be considered to be a lawful and proper disposal of the appeal.
15. An important question, which was not attended to by the two Courts below, is, that the second ejectment petition was filed on account of alleged non- payment of 25% of enhanced rent in terms of section 5-A of Punjab Urban Rent Restriction Ordinance. Although in law, the rent becomes automatically due, yet, for seeking ejectment on this ground and on the plea of non-payment of 25% enhanced amount of rent, the landlord has to allege that the tenant was served with a notice and that despite notice, he had failed to increase the rent by 25 %. In the absence of any notice, wilful default, could not be assumed. In view of the rule laid in PLD 1997 SC 564, mere non-payment of statutory increase, without notice, could not per se, result in inference of wilful default. This aspect of the matter, was not attended to, either by the learned Rent Controller or by the learned Additional District Judge, who proceeded to dispose of the ejectment petition and also the appeal, in a mechanical manner.
16. Be that as it may, the appellant was entitled to the grant of opportunity of producing evidence, in the circumstances noted supra and the order closing their evidence, could not sustain.
17. Before concluding, it may be observed, that in Second Appeal from - Order No,70 of 1996, Civil Miscellaneous No,737-C of 1997 was filed by the respondent, under section 15(6) of Ordinance (VI) of 1959, wherein it was alleged, that during the pendency of the appeal the appellant sent money order of Rs,8,999, stating it to be rent for July, 1997 and Rs,4,692 as arrears of rent and this aspect of the matter should also be taken in consideration while deciding the appeal. Since the issue of default is not being decided on merits in these appeals and the question is left for determination of the learned Rent Controller, therefore, the respondent shall be at liberty, to raise this point, before the Rent Controller, who, while deciding the ejectment petition, will take into consideration, the effect of the money order, sent by the appellant, during the pendency of the appeal. Civil Miscellaneous No,737-C of 1997, is, therefore, disposed of with these observations.
18. For the reasons above, the two appeals are allowed, ejectment orders are set aside and the cases are remanded to the learned Rent Controller for decision of the two ejectment petitions, on merits, after allowing the appellant with one opportunity of producing evidence of the persons, the affidavits whereof, were filed, alongwith the first appeal. The learned Rent Controller, after allowing one opportunity of evidence, will decide the ejectment petitions, in accordance with law and on their own merits.
19. Parties shall appear before the learned Rent Controller on 13-4-1998, who, by giving one opportunity of producing evidence to the appellant, in two cases, will finally dispose of the ejectment petitions, within one month, with intimation to the Deputy Registrar (Judl.) of this Court.
20. In case either of the party, files an appeal against the final order of the learned Rent Controller, the same will also be decided within three-months.