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First Rent Appeal No. 147 of 1985, heard on 25th April, 1985.

Sind Rented Premises Ordinance (XVII of 1979)--

---S.

21(1)--Cross-examination of tenant--Tenant's affidavit-in-evidence was expunged for non-appearance of tenant for cross-examination due to his illness--Ejectment order against tenant by Rent Controller Counsel for landlord conceded that there was sufficient reason for non-appearance of tenant for cross-examination--Order of ejectment set aside and case remanded.

Faizanul Haq for Appellant.

A.M. Hashmi for Respondents.

Date of hearing: 25th April, 1985.

This rent appeal is directed against the order dated 31-1-1985 passed by XIIth Senior Civil Judge/Rent Controller, Karachi whereby eviction application was allowed and the respondents were directed to hand over the vacant and peaceful possession of the premises in dispute to the respondents within 60 days from the date of order.

The brief facts which give rise to this appeal are that the respondents are owners of the building called Ameejee Building standing on Plot No. R.S.1/45, corner of Campbell Street and Frere Road, Karachi. The appellant is tenant in respect of tenament No. 19 of the said building al a monthly rent of Rs. 60. It is the case of the respondents that the appellant is the tenant under written tenancy printed on the back of each rent receipt issued to him and the very first term of tenancN, states that, monthly,rent shall be paid regularly every month in advance and condition/term No. 6 says that non-payment of rent for two succeeding months, the respondents have a right to re-enter the demised premises and eject the appellant. The respondents filed Ejectment Application No. 1224 of 1983 against the appellant on the ground of committing default in payment of rent from 1st September, 1982 to 31st March, 1983 namely seven months amounting to Rs. 420.

The appellant resisted the case and filed his written statement in which he has categorically denied the case of the respondents. The respondents examined Amir Ali and one other witness Rent Collector namely Fazul Ali while the appellant filed his affidavit-in-evidence only. The respondents' witnesses were cross-examined by the counsel of the appellant. The appellant filed his affidavit-in-evidence in September, 1984 but he could not appear on 21-3-1985 as he was confined to bed, His affidavit-in-evidence as filed was expunged and left from consideration by the learned Rent Controller. The learned Rent Controller, after recording the evidence and taking into consideration the arguments of the learned counsel for the parties, held issue No. 1 in the affirmative and consequently the rent' application stood allowed by his order dated 31-1-1985. The appellant being aggrieved against the aforesaid order has preferred this appeal on the grounds mentioned in the memo. of appeal.

Mr. Faizanul Haque, the learned counsel for the appellant, has contended that the appellant could not attend the Court on 23-1-1985 as he was confined to bed and he was advised complete rest by his doctor as he could not attend the Court for cross-examination. On the other hand Mr. A.M. Hashmi, learned counsel for the respondents, has A fairly conceded that there was sufficient reason for non-appearance of the appellant on 23-1-1985, and as such he was not cross-examined by the learned counsel for the respondents and the rent case be remanded to the learned Rent Controller for disposal in accordance with law.

In these circumstances this appeal is allowed and the impugned order dated 31-1-1985 is set aside and the case is remanded to the learned Rent Controller for deciding the case in accordance with law within a period of six months from the receipt of this order and the R&P from this Court. However, there will be no order as to costs.

H.B.T.

Appeal allowed.

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