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Civil Petition No. K-669 of 1981, decided on 23rd August 1981.

(On appeal from the judgment dated 26-I-1981 of the Sind High Court at Karachi in 2nd

Appeal No. 397/79).

)-

S. 13(6)-Tenant not depositing rent according to terms of tentative order for deposit of rent passed by Rent Controller and pleading illness-Rent Controller and pleading striking off defence-Appel late Court also dismissing appeal but High Court on second appeal remanding case with direction to allow tenant to produce evidence on first date of hearing (except Doctor), to decide case within three months and to close case if tenant found to be deliberately committing default in producing evidence-Held : Incumbent on tenant in circum stances to be present in Court on first date of hearing along with witnesses except Doctor-Notices issued to appellant several times prior to service but not served on him due to his dilatory tactics Remand order being conditional, lower appellate Court justified in declining appellant's request for adjustment.

Shahenshah Hussain, Advocate Supreme Court and A. Aziz Khan, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing : 23rd August 1981.

In a petition for ejectment of the petit one who is a tenant of a shop, the Rent Controller made an order under section 13 (6) of West Pakistan Urban Rent Restriction Ordinance on 4-4-1977 for deposit of the arrears of rent which was to be made up to 15-6-1977. The order was not complied with according to its terms and the arrears deposited on 10-8-1977. In the meanwhile an application for striking off the defence had been filed and the Rent Controller disbelieving the version of illness struck off the defence by an order, whose correct date could not be furnished by the counsel for the petitioner.

The above order was challenged by an appeal before the Ist Additional District Judge, Karachi, which was dismissed in limine. The petitioner filed a second appeal before the High Court of Sind at Karachi which was allowed 17-2-1979 and the care remanded to the Additional District Judge with the following directions which were contained in paras. 6 and 7 of the judgment :

(1) The case shall be decided within three months of the date of the receipt of the records after giving the parties an opportunity to produce evidence.

(2) The petitioner shall produce evidence on the first date of hearing fixed before the appellate authority (except the Doctor who being a Govern ment servant was to be summoned through process of the Court).

(3) The learned Additional District Judge would be at liberty to close the case of the petitioner if he found that he was deliberately commit. ting default in producing the evidence.

It appears that the records were received on 24-5-1979 and the case was to be disposed of in terms of the order of the High Court by 24-8-1979. However, the petitioner could not be served (or avoided service) until 5-9-1979. On this date, his counsel appeared and instead of producing evidence on behalf of the petitioner simply filed his vakalatnama and prayed for adjournment. This prayer was rightly refused and ultimately the appeal dismissed. The second appeal filed to challenge this order was also dismissed By a learned Single Judge of the Sind High Court at Karachi observing as under :- -

"In view of the appellant and his counsel's undertaking referred to in the High Court's aforesaid order, it was incumbent on the appellant to be present in Court on the first date of hearing along with the two witnesses mentioned in para. 6 of the said order and to move an application for summoning the doctor. The learned Additional District Judge hall, taken into consideration the fact that in spite of the fact that notices were issued to the appellant several times prior to the service, the case would not be served upon the appellant on account of his dilatory tactics.

And again: -

"Since the remand order was conditional, it cannot be said that thu learned Additional District Judge was not justified in declining the appellant's request for adjournment on 5-9-1979."

We fully agree with these observations and are convinced that the petitioner was employing dilatory tactics and the decision maintaining the order striking off his defence was fully justified.

The overall result is that this petition fails and is dismissed hereby.

Petition dismissed.

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