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Petitioner: ZAFAR AHMAD VS Respondent: BEGUM AMIR AHMAD KHAN AND 2 Other
Court Name: Lahore High Court Judge(s): Ghazanfar Ali Gondal Title: ZAFAR AHMAD vs BEGUM AMIR AHMAD KHAN AND 2 Other Case No.: Writ Petition No. 3346 of 1981 Writ Petition No. 7582 of 1980 Date of Judgment:1982-06-25 Reported As: PLD 1982 Lahore 785 Result: Petition dismissed
JUDGMENT
JUDGMENT The facts of the case are that the respondent Begum Amir Ahmad Khan filed on 18-3-1978, an ejectment application against the petitioner in the ground of personal need, damage to the property resulting In impairment of the utility and value of the property and conversion of the residential bun--galow into a commercial-cum-residential premises against wishes and without permission of the landlady. On 7-6-1978, issues were framed and the landlady was directed to produce her evidence on 27-6- 1978. On 27-6-1978, the landlady did not produce evidence and the case was adjourned to 19-7- 1978, after burdening her with Rs. 15 as costs. On 19-7-1978, landlady produced her witnesses and closed her evidence. An additional issue was framed on that day on the application made by the petitioner and case was adjourned to 18-9-1978, for evidence of the petitioner-tenant. On 18-9- 1978, no witness of petitioner-tenant was present. Accordingly, the case was adjourned to 1-10-1978, on the condi--tion of payment of Rs. 20 as costs. On 20-9-1978, an application was filed by the petitioner-tenant for permission to deposit process-fee and diet--money of three witnesses named in the application and for summoning the said witnesses for the next date of hearing, vie. 1- 10-1978. The learned Rent Controller by his order dated 20-9-1978, granted the said permission but directed that service on the said witnesses shall be got affected by the petitioner tenant, at his own responsibility. Process-fee and diet money of the said witnesses were deposited with Rent Controller on the same day vie. 20-9-1978. However, on 1-10-1978, when the case was called for hearing, the evidence of the petitioner-tenant was not available. An applica--tion for adjournment of the case was made on the ground that the petitioner had left for India and was not available. Accordingly the case was adjourned to 25-10-1978, on the condition of payment of Rs. 20 as costs.
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It was, however, clearly stated in the interlocutory order dated 1-10-1978 that this would be the last opportunity to petitioner tenant to produce his evidence. On 25-10-1978; the evidence of the petitioner-tenant was again not available and on the request of the counsel for the petitioner- tenant another adjourn--ment was granted and case was fixed for production of the evidence of petitioner-tenant for 8-11-1978. It was again made clear in this order that this would be the last opportunity to the petitioner-tenant to produce his witnesses. On 8-11-1978, both the petitioner- tenant and his counsel were absent and instead the clerk of the said counsel appeared before the Rent Controller and stated that evidence was not present. The Rent Controller found that the petitioner-tenant himself was also not present and holding that no reasonable cause had been shown for failing to produce evidence even on the last opportunity granted to the petitioner, he after adopting Order XVII, rule 3, C. P. C., proceeded under said provision of law to close the evidence of the petitioner-tenant. Furthermore, finding that t" evidence of the respondent landlady had already concluded and no rebutal to the same had been produced, he held that the application of the respondent-landlady stood proved. He, therefore, accepted the said ejectment application by his order dated 8-11-1978 and directed the petitioner tenant to vacate the pro-- perty in question by 10-12-1978 and hand over its possession to the respon--dent landlady. An appeal filed by the petitioner on 4-12-1.978 was dismissed by the Additional District Judge by his order dated 19-3-1981. This petition has been filed to challenge the abovesaid orders of the Rent Controller and the Additional District Judge. 2. Learned counsel appearing for the petitioner has in support of this writ petition, raised the following points :- (i) That the order of the Rent Controller putting the responsibility of serving summonses on the witnesses on the shoulders of petitioner --tenant was in excess of jurisdiction of the Rent Controller and the petitioner-tenant having applied for the process of the court for procuring attendance of his witnesses and having deposited the diet money and process-fee for their service, the entire responsibility of procuring attendance of the witnesses lay on the shoulders of the Rent Controller and coercive machinery of the law under rules 10 and 12 of Order XVI, C. P. C. Being available to the Rent Controller by virtue of section 16 of the Punjab Urban Rent Restriction Ordinance he, (the Rent Controller) had failed to exercise jurisdiction vesting in him in closing the evidence of petitioner- tenant without resorting to the said coercive machinery for enforcing the attendance of said witnesses. Reliance in this connection is placed on the case of Bashir Bib! v. Amir--ud-Din PLD 1973 SC 45and unreported decision of Mr. Justice Muhammad Ilyas dated 17th November, 1981, passed in Writ Petition No. 7582 of 1980. (ii) That since the Rent Controller had ordered ejectment of the petitioner without recording statement of the petitioner-tenant's witnesses, he had failed to give petitioner reasonable opportunity to defend the eject--ment application instituted against him. His order, therefore, was in disregard of the provision of subsection (2) of section 13 of the Ordinance and was thus without lawful authority. (iii) That on facts available on the file, the case of the petitioner did not fall under Order XVII, rule 3, C. P. C. And the Rent Controller had acted illegally in exercise of his jurisdiction in proceeding to decide the ejectment application immediately without giving further opportunity to petitioner- tenant to produce evidence in rebuttal. (iv) That at any rate even under Order XVlf, rule 3, C. P. C., Rent Con--troller was bound to give decision on merits by a speaking order but the learned Rent Controller had not spoken a single word on the merits of the case in his impugned decision which, therefore, stood vitiated. 3. I have given my anxious thought to the points raised by the learned counsel for the petitioner and proceed to deal with each as blow;--
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As for the first contention noted above, the authority cited by the learned counsel is distinguishable. That case was decided by the Supreme Court with reference to Order XVI, C. P. C. As it stood before its amendment by Law Reforms Ordinance, 1972. At that time under rule 1 of Order XVI, C. P. C., the parties could obtain at any time summons to persons whose attendance was required to give evidence or to produce documents and under rule 8 of Order XVI every summons was to be served as a summons to a defendant under Order V, C.. P. C., rules 9 and 17 of which contemplated that service was to be effected only by an officer appointed by the court for the said purpose. In that case, Mst. Bashir Bibi had made a request for two witnesses to be summoned through the process of the Court, but the Civil Judge had on 22-7-1970, directed that she should have them served on her own responsi--bility, although one of the witnesses had failed to appear even though he was bound down on an earlier date to appear in court on next date of hearing and summons issued for service of the other witness (after process-fee and expenses had been deposited by her) had not been served upon said witness. Since. Rules 10 and 12 of Order XVI made provision for enforcing the attendance of said witnesses, it was held in the context of the then rules 1 and 8, C. P. C. That court was bound to enforce attendance of said witnesses through the coercive machinery available to it under rules 10 and 12 of Order XVI, C. P. C. And that under said Order XVI, C. P. C., responsibility could not be put on a party to produce its evidence on pain of losing 'its right to produce that evidence and that even in a case where a party undertook to produce its own evidence, but later reported its inability to do so and applied for the process of the court for attendance of its witnesses, there was no sanction in law for refusing such a request and court must move its own coercive machinery to procure the attendance of said witnesses. These observations, however, cannot apply to a case decided after the enforcement since 21-4-1972 of Law Reforms Ordinance, 1972, which made amendments in rules 1 and 8 and added rule 7-A in Order XVI, C. P. C. The said case of Mst. Bashir Bibi v. Amin-ud---Din and 9 others was a case in which the impugned order of Civil Judge had been passed on 22-7-1970, when Law Reforms Ordinance had not been promulgated. So far as the decision dated 11-11-1981 of my learned brother Muhammad Ilyas, J. In case of Imtiaz Ahmad v. Sarfraz Hussain in Writ Petition No. 7582 of 1980 is concerned, the order of the Rent Controller was no doubt passed under the amended Order XVI, C. P. C. When amendments made by Law Reforms Ordinance, 1972, had already been incorporated in it. However, that case too is distinguishable on facts. It appears that in that case, order had been passed by the Rent Controller in the very first instance for summoning the witnesses through an officer of the Court. It is not clear in the judgment as to why Rent Control--ler had made that order. It appears that that matter was not in issue in the High Court. Therefore, consistent with rule 7-A of Order XVI, C. P. C. It has to be assumed that this had been done by Rent Controller on the ground that he had come to the conclusion in the very first instance that summons to witnesses in that case should be served in the same manner as a summons to a defendant i.e. Through its own officer. It was in view of this order that it was held that having taken upon himself the responsibility of procuring the attendance of witnesses, the Rent Controller could not have proceeded to close the case of tenant, Imtiaz Ahmad and that he should have resummoned them and in case of their default, taken coercive measures to compel said witnesses to appear before him. The said observations would not apply to the present case in which an order was passed by the Rent Controller under rule 7-A of Order XVI, C. P. C. That summons to witnesses should be served by the petitioner himself on his own responsibility. The question of burdening the petitioner with personal responsibility for service of summons clearly did not arise in that case. The dictum in that case too, therefore, cannot be applied to the present case. Now coming to first contention itself, rules 1, 7-A and 8 of Order XVI as they stand now after the promulgation of Law Reforms Ordinance, 1972, are quoted as below in extenso :-
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"1.-(1) Not later than seven days after the settlement of issues, the parties shall present in Court, a list of witnesses whom they propose to call either to give evidence or to produce documents. (2) A party shall not be permitted to call witnesses other than those contained in the said list, except with the permission of the court and after showing good cause for the omission of the said witnesses from the list ; and if the court grants such permission, it shall record reasons for so doing. (3) On application to the Court or such officer as it appoints in this behalf, the parties may obtain summons for persons whose attendance is required in Court; Provided that no summons shall be issued for service on a person under rule8 unless an application in that behalf is made not later than fourteen days prior to the date fixed for the hearing of the suit and the necessary expenses for the summoning of such person are deposited. 7-A.-(1) Except where it appears to the Court that a summons under this Order should be served by the court in the same manner as a summons to a defendant, the court shall make over for service all summons under this Order to the party applying therefor. (2) The service shall be effected by or on behalf of such party by deliver--ing or tendering to the witness in person a copy thereof signed by the Judge or such officer as he appoints in this behalf and sealed with the seal of the Court. (3) Rules 16 and 18 of Order V shall apply to summons personally served under this rule, as though the person effecting service were a serving officer. 8. Every summons under this Order, not being a summons made over to a party for service under rule 7-A of this Order, shall be served as nearly as may be in the same manner as a summons to a defendant and the rules in Order V as to proof of-service shall apply thereto." Under section 16 of the Ordinance, the Rent Controller has the same power of summoning and enforcing the attendance of witnesses and compelling the production of evidence as are vested in a Civil Court under C. P. C. It I clear from perusal of said section 16 that powers of a Court not only for A enforcing the attendance of witnesses under rules 10 to 13 and 16 (2) o Order XVI, C. P. C., but also of summoning the witnesses under rules 1(3), 7---and 8 of Order XVI, C. P. C. And relevant rules of Order V, C. P. C. Are also available to a Rent Controller. However, under the C. P. C. These powers can be exercised subject to conditions laid down in Orders V and XVI, C. P. C. Since these powers have been incorporated in the Ordinance by virtue of said section 16 of the said Statute, the condition for exercise of said powers would also apply, because speedy trials for which said conditions had been laid are as much needed in eviction matters before the Rent Controllers as in civil matters before civil Courts. In case of Maula Bakhsh v. Abdul Hamid a Division Bench of this Court held that explanation to section 15 (4) of the Ordinance which incorporated in the said Statute that part of Schedule of C. P. C. Which related to appeals, made applicable to it the provision of abatement of second appeal provided for in rule 11 read with other rules of Order XXII, C. P. C. It is, therefore, clear that conditions for exercise of power to summon or to enforce the attendance of witnesses which had been incorporated in the Ordinance applied equally to the proceedings before Rent Controller. According to rule 1 of Order XVI, C. P. C. The petitioner-tenant was to present before Rent Controller, a list of witnesses whom he proposed to call through process of court to give evidence or produce necessary documents not later than seven days after the settlement of issues and if he had not done so within the said period, then he could seek permission from the Rent Controller under Order XVI, rule 1 (2) to call witnesses, giving good explanation for omission to file the said list. In the present case, as already shown above, issues were framed on 7-6-1978. It is necessary to point out that section 13 (6) of the Ordinance clearly contemplates framing of issues by the Rent Controller and order of framing of issues by him was clearly a legally valid order. As soon as issues had been framed it was incumbent upon parties to proceed in accordance with Order XVI, C. P. C. But no list of witnesses was submitted by the petitioner tenant within seven days of the settlement of the issues nor was any application filed
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later giving any explana--tion for omission to file list of witnesses for being summoned through process of court. Even when the petitioner was asked on 19-7-1978, to produce his evidence on 18- 9-1978, no application was filed for the said purpose. It was only on 20-9-1978, that an application was filed for permission to deposit the expenses and diet-money of three witnesses named in the said application and a request was made for summoning of the said witnesses through the machinery of the court. Here also no explanation was given in the applica--tion for not submitting any list within the prescribed period. It is clear, therefore, that petitioner tenant did not rely at any stage on sub-rule (2) of rule 1 of Order XVI, C. P. C. Now, therefore, according to Full Bench decision of this Court reported as Ghulam Murtaza v. Muhammad 1lyas and 3 others PLD 1980 Lah. 495,he could now only bring his witnesses along with him for being examined by the Rent Controller as he had lost the opportunity to summon them through the process of the Court. Therefore, the order of the Rent Controller accepting the said application for summoning the said witnesses and directing the issue of summons for service of said witnesses but placing the responsibility of effecting service on them on the petitioner was itself a concession granted to the petitioner. Be that as it may, under C. P. C. Even when the court decides to summon the witnesses through its process, under the new rule 7-A of Order XVI, unless it comes to the conclusion that a summons under this Order should be served by the court in the same manner as a summons to a defendant, it has to make over for service, all the summons issued under Order XVI to the party applying therefor. Service on defendant in a suit in a civil court is made' through an officer of the court as shown by rules 9 and 17 to 20 of Order V, C. P. C. Therefore, unless the court comes to the conclusion that summons on said witnesses were to be served through its own officer, it is bound under said rule 7-A to hand over the said summons to the party applying therefor. The said rule 7-A is couched in imperative language, expressive of a command of law to the court to make over for service all the summons to the party applying therefor. Under this mandatory provision of law, as soon as the court decides to issue summons for service of witnesses, it has to decide in the first instance as to whether summons on these witnesses should be served in the same manner as a summons to a defendant. The moment it comes to conclusion that the said summons should not be served in that manner, it becomes obligatory ,for it to hand over summons to the party applying therefor, who according to rule 7-A (2) and (3) will personally effect service on the said witnesses as if he himself was the serving officer. It is, therefore, clear that putting the responsibility of effecting service on witnesses on the shoulder of person applying therefor is now contemplated by amended provision of Order XVI and such an order can validly be passed by a court. It can be passed by a Rent Controller also on account of applica--tion of these provisions to the proceedings before him. Now there is no indication on the record to show that Rent Controller had come to the conclusion that summons on the said witnesses should be served in the same manner as summons to a defendant. It rather appears that he came to the positive conclusion that the said summons should be served on said witnesses personally by the petitioner-tenant, because he passed order on his application that service be effected by him on said witnesses on his own responsibility. It is clear therefore, that order of the Rent Controller putting on shoulder of the petitioner-tenant the responsibility of effecting service on said witnesses was consistent with rule 7-A of Order XVI, C. P. C. And was a legally valid order. The matter does not end here. The order passed by Rent Controller on 20-9-1978 fixing the responsibility of service of said witnesses on the petitioner --tenant was sustainable even under proviso to rule 1 (3) read with rule 8 of Order XVI, C. P. C. According to said proviso, no summons was to be issued for service on a person under rule 8, unless an application in that behalf is made not later than 14 days prior to the date fixed for hearing of the suit and necessary expenses for summoning such persons are deposited. Under rule 8 of Order XVI summons on a witness is to be served in the same manner as a summons to a defendant under Order V, C. P. C. i.e. Through an
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officer of the Court. In the present case, the application for summoning the witnesses for 1-10-1978, the next date of hearing, had been made by the petitioner-tenant on 20-9-1978. In-between the two dates, there was time lag of only 10 days and not 14 days as required by the said proviso. There--fore, under the mandatory provision made in the said proviso, no summons could be issued for service on a witness through an officer of the Court. Only such summons could be issued as could be served by petitioner-tenant himself. The Rent Controller had, therefore, no choice but to issue such summons as could be served by petitioner himself as if he himself was the serving officer. The said order of Rent Controller impliedly directing issuance of summons on the condition that service of said summons on said witnesses shall be got effected by petitioner-tenant on his own responsibility was, therefore, within the bounds of his power and was a legally valid order. I would now deal with next leg of argument relating to the first point raised by learned counsel for the petitioner. There is no doubt that even after issuance of dash summons, the coercive machinery of law for enforcing the attendance of witnesses as provided under rules 10 and 12 of Order XVI, C. P. C. Is available to the court but that can be done only if said witnesses had been served and they had refused to or failed to attend or to produce a document in compliance with such summons. This is made clear by opening words of rule 10 (1) of Order XVI which prescribe the basic condition for the initiation of action by the court against the defaulting witnesses under rules 10 (2), 10 (3), 11 and 12 of Order XVI, C. P. C. There is, however, nothing on the record of the present case to show that the dasti summons were served by the petitioner-tenant on said three witnesses and they had failed to comply with them in spite of service or had deliberately avoided service on the dash summons made available to the petitioner. I have scrutinized the file of the Rent Controller. No returned summonses are available on his file showing that said witnesses had been served. Personally by petitioner-tenant and they had failed to attend in spite of service. There is not even an application on the file of the Rent Controller by the petitioner tenant saying that he had tried to serve summons on the said witnesses but they had avoided or refused service deliberately or that they had been served but had in spite of the service failed to appear before him to give evidence in this case. It is, therefore, clear that the Rent Con--troller could not bring into action coercive machinery available to him under rules 10 and 12 of Order XVI, C. P. C. To enforce the attendance of said wit--nesses. The case did not fulfil the basic conditions for initiation of such B action. There was, therefore, no refusal or failure by the Rent Controller to exercise jurisdiction vested in him. The point raised by the learned counsel has no force and the same is repelled. As for the second contention of the learned counsel for the petitioner, the facts of the case recited above show that the Rent Controller had given to the petitioner tenant a number of opportunities to produce his evidence. He was given opportunity first on 19-7-1978 for producing evidence on 18- 9-1978 which he did not avail on 18-9-1978 and case had to be adjourned to 1-10-1978. On 20-9- 1,978, he filed an application before Rent Controller for procuring attendance of his witnesses through process of court. The Rent Controller accepted the said application and had directed that service on said witnesses would be effected on the personal responsibility of petitioner. The petitioner-tenant was given three opportunities to effect service on the said witnesses but he failed to do so. It is, therefore, clear that the learned Rent Controller had given reasonable opportunity to the petitioner-tenant to defend the ejectment petition instituted against him. The order of the Rent Control--ler is, therefore, not hit by the provision made in subsection (2) of section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, nor it is in disregard of the well-known principles of natural justice, `audi alteram parten'. The third contention of the learned counsel for the petitioner has also no substance in it. As shown in preceding paragraphs petitioner-tenant had been granted at first, time to produce his witnesses and later time to cause the attendance of his witnesses but he had failed either to produce
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witnesses of to cause the attendance of his witnesses. On accepting petitioner' application on 20- 9-1979 for issuing of process of court for summoning his witnesses, the Rent Controller had directed service to be effected on said witnesses on personal responsibility of petitioner-tenant. Under this order, the petitioner was bound to receive the summons duly signed by the Rent…
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