' Through this appeal the judgment/ order, dated 30-5-2000 passed by the IX, Senior Civil Judge and Rent Controller, Karachi, South in Rent Case No,900 of 1999 filed by the respondent has been challenged whereby the ejectement application was allowed and the appellant was directed to vacate the premises within sixty days of the passing of the impugned order.
2. The facts of the case, as narrated in the rent application, are that the applicant (respondent herein) is the owner of the building constructed on plot bearing Survey No,58, Survey Sheet No,H-V- I, (Old Survey Nos.8 and 21, Sheet No,1) situated near Garden Police Station, Herchand Rai Quarters, Karachi, known as Ghiyasuddin Qureshi Building. It was stated in the application that the opponent (appellant herein) is the tenant of Flat No,6 situated on the first floor of the said building, hereinafter referred to as the premises where he was inducted in the month of January, 1995 at a monthly rent of Rs,115 which was subsequently increased to Rs,130 per month after March, 1995. Apart' from that, the opponent was also liable to pay all the utility bills and conservancy charges. The applicant alleged that the opponent paid the rent up to December, 1995, however, he failed to pay/tender the rent w,e,f, 1-1-1996. The opponent was also alleged to be in arrears of a sum of Rs, 5,590 being rent for 43 months. It was, therefore, alleged that the opponent has committed wilful default thereby rendering himself liable to be evicted.
3. The opponent was further alleged to have failed to make payment of water and other conservancy charges. Besides that, the premises were required for the personal bona fide need of the applicant in order to accommodate his married son namely Saeed as, according to the applicant, at present he was residing in a rented premises along with his large family.
4. The opponent/appellant filed written statement, dated 25-9-1999 alleging therein that he had paid Rs,1,00,000 as 'Pagri' to the applicant/respondent; and that he has spent an amount of Rs,50,000 on the fixtures of the said flat. The opponent further alleged that though the applicant had received the rent up to the month of June, 1999, yet he did not issue the receipt and in July, 1999 the applicant refused to accept the rent, so the opponent tendered the rent through money order which was returned undelivered. There after, the opponent started depositing the rent in the Court vide M.R.C. No,1115 of 1999. The requirement of the premises for personal bona fide need of the applicant/respondent was also denied.
5. On the basis of the pleadings of the parties, following points for determination were formulated:
(i) Whether the opponent committed wilful default in payment of rent?
(ii) Whether the applicant requires the case premises for personal bona fide use and occupation of his married son namely Saeed?
(iii) What should the order be?
6. The affidavits-in-evidence of the applicant/respondent and his son Muhammad Saeed were filed on 12-4-2000. However, the applicant and his witness were not cross-examined as neither the opponent nor his counsel were present on the relevant date. The opponent/appellant Syed Qasim Ali filed his affidavit-in-evidence and that of his witness, Zahid Ali Wasti. The matter was fixed for cross-examination of the witnesses of the opponent/appellant but none of the witnesses appeared in the Court for cross-examination, resultantly, the side of the opponent was closed vide order, dated 27-5-2000 and the matter was adjourned to 29-5-2000 for arguments. On 29-5-2000 learned counsel for the applicant/respondent and brother of opponent/appellant namely Zahid Ali Wasti were present, when arguments were heard and the orders came to be passed on 30-5-2000 whereby the application was allowed, hence this appeal.
7. This matter was heard at some length on 8-11-2000 and was adjourned at the request of the learned counsel for the appellant as he sought time to argue the case.
8. Today, I have heard Mr. Muhammad Zahid, Advocate for the appellant and Mr. Mirza Saeed Baig, Advocate for the respondent.
9. Mr. Muhammad Zahid has argued that the appellant was discriminated according to him, the learned Rent Controller granted four months time to the landlord for filing his affidavit-in-evidence but four months time was not granted to appellant/tenant for filing the affidavit-in evidence. He further contend that there was a clear violation of the principle of natural justice as the appellant was granted no opportunity to produce his evidence and, as such, was condemned unheard. He further contends that his application for re-opening the side was also dismissed on 3-5-2000 in an arbitrary manner.
10. On the other hand, Mr. Mirza Saeed Baig contends that as many as 13 chances were granted to the appellant for filing his affidavits-in-evidence from 21-4-2000 to 25-2-2000. He submits that it was only on 25-5-2000 that the affidavit-in-evidence from the side of the, appellant were filed in the Court. He further submits that the appellant/opponent being in possession, wa protracting the matter and that there was no cause shown for the non-appearance of the witnesses of the appellant on the date when the matter was fixed for cross-examination i,e, 27-5-2000. He, therefore, submits that there is no violation of the principle of natural justice and gross negligence was shown by the appellant/opponent and, as such, he deserves no leniency. No case-law was, however, cited by either side.
11. I have anxiously considered the submissions made by both the learned counsel. In so far as the grievance of the learned counsel for the appellant with regard to the grant of equivalent time and reasonable opportunity for filing affidavit-in-evidence by the appellant is concerned, suffice it to say that the appellant was not disallowed from filing his affidavit-in-evidence and he admittedly filed affidavit-in-evidence on 25-5-2000 after the side of the respondent/applicant was closed on 18-4-2000. During that period, according to the statement of Mr. Muhammad Zahid, he was granted only two chances. He, however, fairly concedes that since he was not appearing in the Court of Rent Controller previously, therefore, he was not sure as to, in all, how many chances were granted to the appellant. I have perused the case diaries. On 18-4-2000 the side of the applicant/ respondent was closed and the matter was adjourned to 21-4-2000 and then again to 24-4-2000, 29-4-2000, 3-5-2000, 5-5-2000, 9-5-2000,13-5-2000, 15-5-2000, 16-5-2000,17-5-2000, ', 18-5-2000, 20-5-2000 and 22-5-2000. On 22-5-2000, however, last chance was granted for filing the affidavit- in-evidence by the opponent/ appellant and subsequently on 25-5-2000 the affidavit-in-evidence was filed. The matter was adjourned to 27-5-2000 but the record shows that on that date neither ,,the opponent/appellant nor his witness and Advocate were present and no intimation, whatsoever, was sent to the Court, with the result that the Court had to discard the affidavits-in- evidence filed by the appellant side for the simple reason that those witnesses were not tendered for cross-examination. No application was submitted in the lower Court for recalling the order, dated 27-5-2000. The case was then fixed for final arguments on 29-5-2000. According to the Court diary, dated 29-5-2000, the Advocate for the applicant was present. Neither the opponent nor his counsel were present. However, one Zahid Ali Wasti, the brother of the opponent/ respondent was present. The arguments of the Advocate for the applicant/respondent were heard, and the matter was put off to 30-5-2000 for orders. In the meanwhile arguments of the other side.
However. According to Court diary, on 30-5-2000 Advocate for the applicant/ respondent was present, while the applicant/ opponent's counsel was called absent. Ultimately, the matter came to be decided vide order, dated 30-5-2000.
12. I fully agree with the argument of the learned counsel for the appellant that the cases are to be decided on merits and nobody is to be deprived of his invaluable right of hearing. However, it does not mean that a party should be allowed to protract the proceedings on various pretexts, which are lacking bona fide. In such circumstances, the overall conduct of a party is to be kept in view, and the time tested principle that one who seeks equity, must do equity, is to be pressed into service, as the delay defeats the equity. From the conduct of the appellant as borne out from the record, it appears that he had been misconducting and committing wilful neglect in pursuing his case, inasmuch as, that the witnesses of landlord were not cross-examination an the appellant/tenant failed to produce his witness for cross-examination, when the case was fixed for said purpose. No sufficient cause, whatsoever, was shown for non-appearance on the above dates. The law favours vigilant and not the indolent. After careful examination to the record, I have come to the conclusion that in the given circumstances, the orders of the learned Rent Controller were justified.
13. Even on merits, I have perused the entire record with the assistance of the learned counsel for both the parties. The record shows that not a single document whatsoever was filed either along with the written statement filed by the appellant or the two affidavits-in-evidence filed on his behalf. There is absolutely no proof with regard to the tendering of the rent by way of money order.
Thus, the contention that the rent was sent through money order by the tenant is devoid of force.
Resultantly, the ground of wilful default stands proved.
14. The respondent/landlord has also successfully discharged his burden to prove the factum of personal use of the premises for his married son. Even in the written statement the appellant has simply denied this plea. The respondent/ landlord re-asserted this ground quite elaborately in para. 6 of his affidavit, which had gone unrebutted. Besides that the plea of personal use was also affirmed in para. 6 of the affidavit-in-evidence of Muhammad Saeed, the married son of the respondent/ landlord, for whom the premises were required, which stood unrebutted.
15. Keeping in mind the fact that the appellant has failed to bring any documentary evidence in support of his contentions and/or in rebuttal of the evidence brought on record by the respondent/landlord, no useful purpose will be served even if the case is remanded. On the contrary, it will amount to allowing the appellant/tenant to get benefit out of hik own wrongs, which will be neither justified nor equitable.
16. For the above reasons, I do not find any merit in this appeal which is accordingly dismissed in limine along with listed application.
17. Learned counsel for the appellant submits that his client intends to challenge this order before the Honourable Supreme Court and, therefore, requests for grant of sixty days time for vacating the premises. The learned counsel for the respondent has no objection. Two months time is accordingly granted subject, however, to the deposit of the rent by the appellant/tenant.
Appeal dismissed/