' This is an appeal under section 24 of the Cantonment Rent Restriction Act, 1963, preferred against the order, dated 30-11-1994 passed by the Additional Controller of Rents, Clifton Cantonment, Karachi, in Rent Case No, 66 of 1992 Re: Mrs. Shirin Farooq and another v. Messrs Pet Rotech Limited Co., whereby the appellant was ordered to vacate and hand over the possession of demised premises to the respondents within 45 days of the order.
2. Briefly stated, a rent case was instituted by the respondents against the appellant for ejectment of the appellant from the premises bearing No,41/11, 10th Commercial Street, Phase-IV, D.H.A., Karachi.
3. Before going into the merits of the case between the parties, it will be pertinent to mention here that earlier there has been one round of litigation with the institution of Rent Case No,97 of 1988 filed by respondent No,2 against the appellant which was dismissed by order, dated 10-7-1990 of the Additional Controller of Rents, Clifton Cantonment, Karachi. An appeal bearing No,470 of 1990 filed by the respondent No,2 against the said order was also dismissed by this Court vide judgment, dated 13-4-1992. The rent case filed by the respondent No,2 was dismissed on the ground that there was no relationship of landlady and tenant between the parties. The same ground weighed with this Court as a result of which the appeal was also dismissed.
4. Later on, both the respondents filed rent case for the ejectment of the appellant which has given rise to this appeal.
5. Facts briefly stated are that there exists relationship of landlady and tenant between the respondent No,1 and the appellant and the said respondent No,1 received rental amount from the appellant. It was also averred that in good faith and as per prior traditional way of approval of the mother/respondent No,2, a Lease Agreement, dated 1-4-1987 was executed between the respondent No,1 and the appellant, for the lease of the demised
6. Premises bearing No,41/11, 10th Commercial Street, Phase-IV, D.H.A., Karachi, on a monthly rent of Rs,6,500 that some letters of correspondence were exchanged between the parties whereafter the respondent No,1 acting as attorney of her mother respondent No,2 filed Rent Case No,97 of 1988 in the name and style of Mrs. Safia Zarin v. Petrotech (appellant), amongst other things, on the basis of the personal bona fide need and in good faith of the respondent No,2. It is further averred that since the respondent No,1 is the real daughter of respondent No,2 the respondent No,1 is highly concerned with the real welfare, tranquillity and peace of mind of respondent No,2 in her old age and that the respondent No,1 absolutely in good faith and with bona fide intention needs the demised premises in use and occupation of the appellant, for herself and specially for her old ailing mother.
6. The appellant submitted the written statement wherein the relationship of landlady and tenant was not denied. It was admitted that there was a lease agreement between the respondent No,1 and the appellant. However, inter alia, the case of the respondents was opposed as far as their requirement of personal bona fide need of the demised premises was concerned and was contested by the appellant.
7. The learned Additional Controller of Rents on the Basis of the pleadings of the parties framed the following issues:-- "(1) Whether the applicant No,1 requires the demised premises for her bona fide use and for he use of her mother?
(2) What should the order be?"
8. In support of her case the respondent No,1 filed her affidavit in evidence and that of her brother witness Saqib Rafiq. Both these witnesses were cross-examined by the appellants' counsel before the Controller and closed their side. The appellant filed affidavit in evidence of Khawaja M. Ilyas, their Managing Director, but failed to produce him in spite of innumerable opportunities provided to him. Accordingly the side of the appellant was closed on 25-6-1994.
7.
9. It may be mentioned that the appellant submitted an application under section 151, C.P.C. For opening of their side in order to produce evidence which application was dismissed by the trial Court vide order, dated 5-11-1994.
8.
10. While perusing the record and proceedings, it transpires that the side of the appellant was closed firstly on 4-9-1993 and secondly on 2-10-1993 whereafter their side was opened and by order, dated 11-12-1993 they were allowed to produce their witnesses. Case diary of the trial Court depicts the following picture of the appellants'/opponents case.
' 4-9-1993 The ... No one has appeared on behalf of opponent. It is observed that despite number of adjournments have been allowed to the opponent but he failed to appear and conduct cross- examination. I hereby close the side of opponent. In ' .., 2-10-1993 The ... No one has appeared on behalf of the opponent. It is observed that opponent has not been taking interest in the proceedings of the case. He has also failed to file affidavit in evidence. I, therefore, close the side of the opponent. The ' 29-1-1994. The ... No one has appeared on behalf of the opponent. It is observed that learned counsel for opponent has not been conducting cross-examination of applicant. In case of failure on the part of the opponent to conduct the cross-examination of the applicant his side shall be determined.
' 26-3-1994 The No one has appeared on behalf of the opponent.
' 2-4-1994. The ... No one has appeared on behalf of the opponent.
' 7-5-1994. The ... None has appeared on behalf of the opponent.
' 14-5-1994. The ... No one has appeared on behalf of the opponent.
' 25-5-1994. The ... No one has appeared on behalf of the opponent.
' 8-6-1994 The ... No one has appeared on behalf of the opponent.
' The case is adjourned to 18-6-1994. For cross-examination of the opponent.
' 18-6-1994. The ... No one has appeared on behalf of the opponent.
' Final opportunity is provided to the opponent .......................................
' The case is adjourned to 25-6-1994 of cross-examination of the opponent.
' 25-6-1994 The .... No one has appeared on behalf of the opponent. I therefore close the side of the opponent....
' 6-7-1994 The ... No one has appeared on behalf of the opponent.
' 13-7-1994 The ... No one has appeared on behalf of the opponent.
' 6-8-1994 The ... No one has appeared on behalf of the opponent.
' 24-8-1994 The ...No one is present on behalf of the opponent.
' 22-10-1994 No one has appeared on behalf of the opponent.
' 5-11-1994 No one has appeared on behalf of the opponent.
' 16-11-1994 No one has appeared on behalf of the opponent.
' 23-11-1994 No one has appeared on behalf of the opponent.
' 30-11-1994 No one has appeared on behalf of the opponent.
11. I have heard Mr. Habibullah Sarno, learned counsel for the appellant as well as Mr. Tasawar Ali Hashmi, learned counsel for the respondents and have also perused the record.
12. Learned counsel for the appellant has contended that despite the fact that no evidence was led by the appellant; he would like to prove from the evidence of the witnesses examined on the side of the respondents that they have failed to prove their personal bona fide need of the demised premises.
13. Learned counsel has contended that P.W. Saqib is son of respondent No,2 who is owner of the demised premises. She is stated to be 70 years of age and she cannot live alone in that premises.
He has further contended that evidence of Saqib is not truthful as regards his employment, accommodation and salary. He has stressed that Saqib's evidence to the effect that he left Dost Muhammad Cotton Mills where he was paid a salary of Rs,15,000 with accommodation and joined Messrs Unique Spinners at a salary of Rs,10,000 does not inspire confidence of its being implicitly reliable piece of evidence . He has further contended that the application filed on behalf of the appellant under section 151, C.P.C. Ought to have been allowed by the learned Controller as the same was supported by an affidavit of advocate and also a medical certificate. Counsel has lastly contended that respondent No,2 did not, herself, step in the witness box, since she was the owner of the demised premises and since question of her personal need was involved.
' Learned counsel for he appellant though at the close of his argument stated that he would produce the case-law soon thereafter but he has not done so.
14. Mr. Tasawar Ali Hashmi, learned counsel for the respondents has contended that the respondent No,1 is the landlady/daughter of the respondent No,2 who is the owner of the demised premises. No restraint can be put on a litigant party to examine a particular person or a particular number of persons as witnesses in order to prove its case. He has stressed that both the daughter and the mother filed the ejectment case by way of abundant caution in the wake of previous litigation between the parties. Learned counsel while pointing out aforesaid case diary insisted that despite the fact that appellants were given so much latitude by the learned Controller they did not avail of the same and the intention of the appellant was only to prolong the matter. He has emphasized that the order, dated 5-11-1994 of the Controller, refusing to reopen appellants' side was a legal and perfect order.
15. Learned counsel in support of the impugned order and the order, dated 5-11-1994 (order refusing to reopen the side of appellants) has placed reliance on the following case-law.
(1) NLR 1982 (Civil) 655, (2) 1980 CLC 67, (3) 1992 CLC 102, (4) 1993 CLC 1325.
' Case-law cited above fully supports the case of the respondents.
16. It has come in evince that respondent No,2 Mrs. Safia Zarin has got no other accommodation nor her son Saqib. It has also come on record that even father' of Saqib has no other accommodation or any immovable property. The contention of the learned counsel for the appellant that respondent No,2 cannot live alone in the demised premises, and therefore, her personal bona fide requirement of the demised premises is not established, is a far fetched conclusion and not tenable.
17. It is evident from the record that since inception of ejectment case on 2-11-1992 till its final disposal on 30-11-1994, except for few hearings, all the remaining hearings in the case went unattended.
18. This conduct of the appellant in conducting/pursuing the cause before a Court of law cannot be termed as little less than gross abuse of the process of the Court.
19. ##TS#The appellant has utterly failed to shatter the bvidence led by respondents. The attempt of the learned counsel for appellants that he would prove from evidence on record that the respondents have no case has also failed.
20. In view of the conduct of the appellant, aforesaid, their deliberate failure to contest the case and in view of the plethora of case law referred and cited above, I have reached irresistible conclusion that the order impugned in this appeal does not suffer from any illegality, irregularity or infirmity. It does not call for any interference. Consequently, the appeal is dismissed with costs and the appellant is directed to hand over vacant peaceful possession of the premises bearing, No,41/11, 10th Commercial Street, Phase-IV, D.H.A., Karachi, to the respondent No,1 within a period of sixty days from the date of this judgment. In case of appellants' failure to hand over vacant and peaceful possession within aforementioned time, a writ of possession shall issue against the appellant without notice.