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Criminal Petition for Special Leave to Appeal No. 642 of 1981, decided on 1st November, 1981.

(On appeal from the judgment and order of the Lahore High Court dated 9‑2‑1981 in S. A. O. No. 252 of 1978).

‑‑ S. 13 (6) read with Oaths Act (X of 1873)‑Eviction proceedings Special Oath‑Tenant offering to pay rent as claimed by landlord and also to be liable to ejectment if landlord took oath on Holy Qur'an regarding rent being due at rate claimed‑Case adjourned to another date for oath taking‑Tenant, however, before date fixed for oath taking withdrawing offer on ground of same having been made on mis understanding‑Landlord bringing Holy Qur'an on appointed date, taking oath on Holy Qur'an affirming rent being due at rate claimed Rent Controller passing order for ejectment‑Contended that Oaths Act, 1873 having not been applicable to proceedings before Rent Controller and full compliance having not been made with its provisions and petitioner‑tenant having withdrawn offer before actual taking of oath, normal course of inquiry should have been adopted by Rent Controller Held : Matter within discretion of Rent Controller to .permit such type of withdrawal or to refuse permission‑Rent Controller not being a Court not bound by technicalities of civil procedure‑Case not fit for grant of leave to appeal in view of conduct of petitioner himself.

Mst. Asifa Sultana v. Honest Traders P L D 1970 S C 331 ; Khadim Mohyuddin v. Rehmat Ali P L D 1965 S C 459 and Ahsanul Haq v. Abdul Rahim 1979SCMR338ref.

Mian Fazil Mahmood, Senior Advocate and Mahmood A. Qureshi, Advocate‑on‑Record for Petitioner.

Iqbal Haiyder Zaidi, Advocate Supreme Court and Sh. Masud Akhtar, Advocate‑ on‑Record for Respondent.

Date of hearing : 1st November, 1981.

‑Leave to appeal has been sought from judgment dated 9‑2‑1981 of the Lahore High Court whereby a tenant's second appeal against the order of his eviction (affirmed in first appeal), on ground of default in payment of rent was dismissed. The learned Rent Controller on an assertion from the respondent's side that the petitioner was a rent defaulter proceeded to pass an order for deposit' of the rent under subsection (6 of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 when an offer was made from the petitioner's side that if the respondent landlord took an oath on the Holy Qur'an that the rent was Rs. 250 per mensem and that the petitioner was defaulter in this behalf since July, 1976 then the petitioner would not only pay the rent but would be liable to be evicted forthwith. This offer was accepted from the respondent's side with a statement that if he failed to take the oath, he would not only withdraw the application for eviction, but would also give up the claim with regard to the rent. This had happened on the 22nd of January, 1978. The case was adjourned to 2nd of February, 1978 for the oath proceedings. The case was however again adjourned to 7th of February; 1978 when the learned Rent Controller noted that the respondent had brought the Holy Quran with him in the Court room when the petitioner sought short adjournment. However the case was taken up later in the day when a new counsel appeared for the petitioner and an application under section 151, C. P. C. was submitted from the petitioner's side with a view to withdraw from the offer made by him for decision of the case on the basis of special oath; because as pleaded from his side, the offer was made on account of misunderstanding.

The learned Rent Controller after hearing the arguments from both the sides rejected the application with the observation that the petitioner had himself made the offer which was signed by him (the assumption was presumable made that there was no question of misunderstanding). Accordingly, it was also held that the petitioner's application was based on mala fides. The oath was then administered to the respondent in accordance with the arrange ments earlier made. He asserted that the rent was Rs. 250 per mensem and it was in arrears since February, 1976. Accordingly, for these reasons, an eviction order was passed against the petitioner which having been challenged in first and second appeals without any success, he has now sought leave for appeal to this Court.

Learned counsel has contended that the Oaths Act (X of 1873) did not apply to the proceedings before the Rent Controller but if he adopted the procedure provided in the Oaths Act, it was necessary for him to comply with all the provisions thereof. He has also contended that the petitioner having withdrawn the offer regarding oath prior to the respondent taking the same, therefore, the learned Controller should in preference to the procedure of oath, have adopted the normal course of enquiry by inviting the parties to adduce evidence. He had tried to support these contentions by various arguments.

Regarding last contention suffice it to observe that as held in Mst. Asifa Sultana v. Honest Traders (P L D 1970 S C 331) it is discretionary with the forum to permit the type of withdrawal of offer as was sought by the petitioner or to refuse per mission. In this case, the circumstances furnished ample justification for exercising the discretion against the petitioner: His application for with draw of the offer was obviously mala fide.

The contention with regard to the procedure adopted by the learned Controller can be examined and met with in the context of and by the view taken by this Court in the well‑known case of Khadim Mohyuddin v. Rehmat Ali (P L D 1965 S C 459) wherein it was held that "if the word 'satisfied' imports the necessity of an enquiry, even then it cannot be said that in holding such enquiry he (the Controller) will be bound by any particular procedure". It was so held because as explained in Ahsanul Haq v. Abdul Rahim (1979 S C M R 338) "an eviction, order, passed by a Rent Controller is not bad merely because the Rent Controller ha adopted a procedure different from that followed by the Courts constituted under the Civil and Criminal Procedure Codes. And, this is only a corollary of the proposition laid down in Khadim Mohyuddin's case that a Rent Con troller is not a Court". As earlier stated, although the contentions raised by the learned counsel in connection with the technicalities of the procedure under the Oaths Act, 1873, can be repelled (on the law already laid down by the Court) yet in the circumstances of this case we will consider it just and proper to hold that in view of the conduct of the petitioner himself we do not deem it a fit case for grant of leave to appeal. This petition is, accordingly, dismissed.

At the time of the announcement of the order, learned counsel for the petitioner requested for time to vacate the premises and we allowed a period of one month on the condition that the petitioner shall voluntarily surrender vacant possession to the respondent on or before the expiry of one month, with further condition that the rent for this month will be paid by, him at the rate of Rs. 250 per mensem.

Petition dismissed.

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