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First Rent Appeal No. 845 of 1981, decided on 3rd December, 1981.

‑‑‑S. 14‑Inquiry proceedings‑Nature and type of‑Rent proceed ings‑Rent controller giving date for evidence but on such date no evidence recorded and landlord only filing affidavit in support of his case‑Copy of affidavit not even supplied to tenant and no opportunity given to him to file counter‑affidavit‑Rent Controller taking into consideration affidavit while passing order‑Held, Rent Controller committed an illegality and having decided to record evidence, he should have recorded evidence.

Azad Bin Haider v. Adam Khan P L D 1981 Kar. 225 Mumtazuddin Ahmad v. Mst. Sultan Jahan Begum P L D 1981 Kar. 329 and Ibrahim Ismail v. S. H. A. Gardezi P L D 1981 Kar. 622 ref.

Faizanul Haq for Appellant.

Muhammad Ali Jan for Respondent.

Date of hearing 3rd December, 1981.

This is an appeal filed by the appellant/tenant against the order dated 15‑10‑1980 of the Rent Controller Karachi in Rent Application No. 2579/79 filed by the respondent/landlord under section 14 of the 1979 Ordinance. In this matter it is an admitted position that no evidence was recorded by the Rent Controller and reason for not recording evidence given by the learned Rent Controller is that as it was a case under section 14 of the 1979 Ordinance no evidence had been recorded.

The main grievance of Mr. Faizanul Haq, learned counsel for the appellant is that evidence should have been recorded. The learned counsel for the appellant has referred to the following decisions given by the learned single Judges of this Court in which it has been held that in proceedings under section 14 of the 1979 Ordinance an inquiry has to be held by the Rent Controller but the nature and type of inquiry and whether evidence is to be recorded or not is left to the discretion of the Rent Controller, depending on the circumstances of the particular case :‑

Azad Bin Haider v. Adam Khan (P L D 1981 Kar. 622), decided by Sajjad Ali Shah, J. Mumtazuddin Ahmad v. Mst. Sultan Jehan Begum (P L D 1981 Kar. 329) decided by Ajmal Mian, J. (P L D 1981 Kar. 329). Mr. Faizanul Haq, the learned Counsel for the appellant, has referred o another case decided by K. A. Ghani, J. in Ibrahim Ismail v. S. H. A. Gardezi (P L D 1981 Kar. 622) in which it has been held that when a tenant appears in compliance with a notice issued by the Rent Controller on an application filed before him under section 14 of the 1979 Ordinance by the landlord the tenant would be entitled not only to show cause by submitting an explanation in reply to the rent application but where the tenant challenges the allegations made in the application against him and show cause against it, it will be the duty of the Controller to hold an inquiry on questions of facts pleaded by the landlord and challenged by the tenant and to give a fair opportunity to the tenant to offer his evidence and in doing so to cross‑examine the landlord.

In the present case, after the service of the notice on the appellant/ tenant, some dates were given by the Rent Controller for recording evidence but no evidence was recorded and instead on 4‑10‑1980 an affidavit in support of the case of the respondent was filed by the Respondent. The order sheet further shows that on the same date i. e. 4‑10‑80 when this affidavit was filed by the respondent, arguments were heard by the Rent Controller and the matter reserved for orders. There is nothing on the record to show that a copy of this affidavit dated 4‑10‑1980 was supplied to the appellant/tenant and he given an opportunity to file a counter‑affidavit. Further a perusal of the impugned order shows that the Rent Controller had taken all the pleadings and docu ments on record into consideration while passing the impugned order which implies that the affidavit dated 4‑10‑1980 was also taken into, consideration by the Rent Controller. As copy of this affidavit was not supplied to the appellant and no opportunity was given to the appellant to make a reply in this regard, an illegality has been committed by the Rent Controller. Further after having decided that evidence was to be recorded, which is apparent from the orders passed on several dates by the Rent Controller adjourning the case for evidence, the Rent Controller should have recorded the evidence.

In the circumstances, this appeal is allowed and the impugned order dated 15‑10‑1980 of the Rent Controller in Rent Case No. 2579/79 is set aside and the matter is remanded to the Rent Controller for deciding the case in accordance with law after giving an opportunity to the appellant to cross‑examine the respondent and if any further witnesses are examined on behalf of the respondent, to cross‑examine those witnesses. The Appellant will also be entitled to lead evidence.

This is a matter under section 14 of the 1979 Ordinance and in the circumstances it is directed that the parties will appear before the IXth Senior Civil Judge and Rent Controller (who is the Controller in whose jurisdiction the present case will fall) on 19‑12‑1981 on which date the Respondent and his witnesses will be present for cross‑examination. Respondent's affidavit is already on record. Affidavits of any further witnesses of the Respondent will be filed on that date and copies thereof will be supplied, a(. least a week in advance to Mr. Faizanul Haq, the learned counsel for the appellant. Muhammad Khursheed, nephew of the appellant is present in person and states that Muhammad Akbar, appellant is lying ill and therefore was unable to attend the Court today.

In any case Mr. Faizanul Haq, on instructions, undertakes that the appellant will be present or represented on 19‑12‑1981 before the learned Rent Controller. Further the Rent Controller is directed to finalize this case within three months. There will be no order as to costs.

R & P of the learned Rent Controller in this case may be sent to the learned IX Senior Civil Judge & Rent Controller, Karachi forthwith.

K.M.A Case remanded,

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