1. Appellant Abdul Hameed has called in question the Impugned Order, dated 20-5-2000 passed by the learned. Xth Rent Controller (South) Karachi, in Rent Case No.953 of 1999, allowing the ejectment application of the respondent, who is landlord, with the directions to hand over the vacant peaceful possession of the demised premises within 90 days, hence this Appeal.
2. Brief facts of the case are that respondent/landlord filed ejectment application against the appellant, who is the tenant of respondent/landlord in respect of Godown No.4 on Plot No.P-4/24, situated at Gopal Street. Embankment Road at the rate of Rs.100 per month and the appellant/tenant failed to pay rent since January, 1998 till filing of this case. Notice was served upon the appellant/tenant, who tiled his written statement and denied the contents of paragrpah No.I of ejectment application in respect of relationship between the parties and he has further submitted that he has not committed any default in payment of rent.
3. In support of his case, respondent/landlord filed his affidavit-in-evidence and subjected to cross- examination. On the other hand, appellant/tenant also filed his affidavit-in-evidence but has failed to appear in witness-box for cross-examination; hence the side of the appellant/tenant was closed by the Court.
4. From the pleadings of the parties, learned Rent Controller has formulated the following Issues:
(1) Whether the opponent has committed any default in payment of rent?
(2) What should the order be?
5. After bearing the learned Counsel for the parties and perusing the material available on record, the learned Rent Controller allowed the ejectment application of respondent/landlord and directed the appellant/tenant to hand over the peaceful vacant physical possession of the demised premises within 90 days, with no order as to costs.
6. I have heard the learned counsel for the parties and have perused the Record and Proceedings of Rent Case No.953 of 1999 and have also gone through the Impugned Order passed by the learned Rent Controller. It is a matter of fact that on 18-5-2000, the appellant/opponent, before the trial Court, was called absent at 9-00 a.m. and the case diary of the said rent case reveals that the learned Rent Controller ordered that the matter be taken up at 10-00 a.m: even at 10-00 a.m. the appellant/opponent was called absent and again it was ordered that the matter is to be taken up at 11-30 a.m. but even at 11-30 a.m. the appellant/opponent was called absent; again the matter was taken up at 1-00 p.m. and the appellant/opponent was called absent and thereafter, the side of the appellant/opponent for cross-examination was closed and the matter was adjourned for final arguments.
7. Learned counsel for the appellant/opponent, before the trial Court, moved an application under section 151, C.P.C. with the prayer that the order, dated 18-5-2000 be set aside, whereby the side of the appellant/opponent was closed may be reopened for cross-examination. This application was moved by the learned counsel for the appellant/opponent on 18-5-2000 but the Order, has been passed by the learned Rent Controller on 20-5-2000, which is reproduced as follows: "Case called. Advocate for Applicant is present since morning. Learned counsel for Opponent after moving the application in the morning hours did not turn up. It is 1-30 p.m. I, therefore, dismiss the application in hand in default for non-prosecution."
8. Learned counsel for the appellant has submitted that the side of the opponent has been closed on the back of the appellant/opponent and the application for setting aside the Order, dated 18-5- 2000 was moved but the same has been dismissed for non-prosecution as there was no call from the Court and has further argued that the appellant/opponent has not been subjected to cross- examination and he may be afforded an opportunity to be cross-examined. In support of his contentions, he has placed reliance on 1998 CLC 697; 1999 CLC 969 and 1995 M LD 470.
9. Mr. Abul Inam, learned counsel for respondent/landlord has submitted that the conduct of the appellant/tenant has remained very dubious and has been switching over from one version to another and has not come with clean hands and his conduct before the trial Court has remained very disenchanting. learned counsel has drawn my attention on the application under section 151, C.P.C., moved by the learned counsel for the appellant/tenant, dated 18-5-2000 for re-opening the side of the appellant/opponent for cross-examination and has also invited my attention on the order on such application passed by learned Rent Controller and has contended with vehemence that the appellant/opponent although moved an application on 18-5-2000 but on 20-5-2000 his Advocate after moving application in the morning hours did not turn up even the appellant/opponent was not in attendance at 1-30 p.m. and such application was dismissed by learned Rent Controller in default for non-prosecution. He has further contended that had he been fair enough, he would have pursued the matter then and there and according to learned Counsel for the appellant/opponent, the side of the opponent for cross-examination has been closed by the learned Rent Controller at 12-30 noon time. In that event also, it was the duty of the learned counsel for the appellant/opponent to move application then and there but even after filing of such application neither the appellant/opponent was available nor his counsel and the application for setting aside the Order, dated 18-5-2000 was dismissed in default for non-prosecution. Mr. Abul Inam, learned counsel for respondent/landlord has further drawn my attention on application for adjournment moved on behalf of appellant/opponent before the learned Rent Controller on 23-5- 2000, which is available with the record and proceedings of rent case at page 61 and drawn my attention on the contents of such application; the contents of application, which has been moved on 23-5-2000 disclosed that the side of the appellant/opponent was closed, therefore, he filed an application for reopening the side on 20-5-2000 and it is further mentioned in that application that on 20-5-2000 the learned Rent Controller adjourned the proceedings of the matter to 22-5-2000 for filing Objection of the respondent/landlord. In the said application it has been further mentioned that the learned Rent Controller was pleased to order for opening the side of the appellant/opponent on 22-5-2000 and adjourned the proceeding of the matter to 23-5-2000 for cross-examination of the appellant/opponent. Advocate for the appellant/opponent requested two days' time as the Advocate for appellant/opponent had to communicate the next date of hearing to the appellant/opponent and the learned Rent Controller insisted for calling the appellant/opponent on 23-5-2000 for recording the evidence of the appellant/opponent as per the direction of the Honourable Chief Justice of Pakistan, in rent cases, specially in cases of Godown. It is further mentioned in the said application that in compliance of the Order of the learned Rent Controller the Advocate for appellant/opponent went himself to the residence of appellant/opponent and he was informed by the _family members of the appellant/opponent that he has gone out of Karachi for some Tablighi work and will be back on 30-5-2000.
10. According to Mr. Abul Inam, learned counsel for the respondent/ landlord, the contents of the application, dated 23-5-2000 are totally false and bogus and are not borne out from record, when the application has been moved by the appellant/opponent for reopening the side for cross- examination on 18-5-2000 and whereas in the said application he submits that he filed an application for opening the side on 20-5-2000. According to learned counsel two inferences can be drawn viz (1) either the application has not been moved on 18-5-2000 as being narrated by the learned counsel for the appellant/opponent or (2) the same has been moved by the learned counsel for the appellant/opponent on 20-5-2000 and the order has been passed on 20-5-2000 by the learned Rent Controller by dismissing such application in default fort-tan-prosecution.
11. Mr. Abul Inam has invited my attention on the order, dated 23-5-2000, passed by the learned Rent Controller on the application for adjournment moved by the learned counsel for the appellant/opponent and the order reveals that. "It is strange to see this application, as the case has already been disposed of, filing of this application there is unawareness and negligence of the opponent's counsel. Application is not maintainable and is dismissed as infructuous".
12. Mr. Abul Inam, learned counsel for the respondent/landlord has critcized on the conduct of the learned counsel for the appellant/opponent and so also he has critisized the conduct of the appellant/opponent and has submitted that this is height of negligence on the'part of learned counsel for appellant/opponent and according to him the appellant/opponent has come with tissues of lies and does not deserve any lenient view and the appeal has no merit and is liable to be dismissed.
13. Mr. Agha Faqir Muhammad, learned counsel for the appellant/opponent, half-heatedly argued the case and could not reply to the contentions raised by the learned counsel for the respondent/landlord and when asked about such application, dated 23-5-2000, the learned counsel for the appellant/opponent had no answer.
14. I have carefully examined the record and proceedings of the case and have also gone through the law cited by the learned counsel for appellant/tenant, which is distinguishable from the present case. I have also gone through the impugned order very carefully. Admittedly, there is not only negligence on the part of the appellant/tenant and his counsel before the trial Court but so also he has suppressed the material facts and has not come with clean hands and has been switching over to one version after another and in these circumstances, I am not impressed by the argument rendered by the learned counsel for the appellant/tenant and I am of the considered view that the appellant/tenant and his counsel before the trial Court were rather at fault and they have deliberately suppressed the material facts and also filed such application, dated 23-5-2000 in which different contentions have been raised by the learned counsel for the appellant/opponent and such contents of the application are borne out from the record. Therefore, I am of the considered view that appellant/tenant has come with pack of lies before the trial Court as well as before this Court and I see no merits in appeal and accordingly the appeal is dismissed with no order as to costs.
15. The above are the reasons for my short order, dated 19-1-2001.