1992 PLP 860 (MLD)

The dispute pertains to a shop bearing NO.XIX‑1‑S‑120 (lower portion), situated in Gali Araian, Sialkot, which was rented out to Haji Muhammad Ismail, respondent No.1 in the year 1967 at the rate of Rs.35 per month. Rent was increased from time to time and in the year 1988, it was Rs.175 per month.

2. An ejectment petition. was filed by the petitioner against respondent No.1 on 5‑3‑1988, on the ground of default from 1986 till the date of institution of the petition and sub‑letting. The petition was accepted by the learned Rent Controller on 29‑9‑1988 who ordered eviction of respondent No.1 from the shop. Respondent No.1 preferred an appeal which was accepted by the learned Additional District Judge. Sialkot vide his judgment, dated 3rd May,1989.

3. The petitioner's learned counsel submits that the relationship of landlord and tenant was proved through the rent‑deed, dated 23‑4‑1967 (ExhA‑1). He submits that the rent‑deed was duly proved through statements of marginal witnesses A.W.1 Muhammad Yousuf and AW‑2 Shaukat Mahmood son of Muhammad Mehdi, the deceased marginal witness. He submits that AW‑1 had stated that Haji Muhammad Ismail, the tenant had signed the rent‑deed in his presence and the said statement was never questioned in cross‑examination. He points out that signature of respondent No.1 appearing on the back of rent‑deed in token of receipt of rent were proved through statement of AW‑

2. The learned counsel for respondent No.1, submits that the rent‑deed was not proved in accordance with the law. He adds that the execution of the deed was denied by respondent No.1 and the petitioner failed to prove its execution under the provisions of Articles 17 and 79 of Qanun‑e‑Shahadat,1984. He further submits that there is no evidence to show that the relationship of landlord and tenant existed between the parties. He submits that the findings of fact recorded by the appellate Court are not liable to be set aside in the‑ exercise of Constitutional jurisdiction in the absence of misreading or non‑reading of evidence on the record. Lastly respondents' learned counsel contended that the petition was incompetently filed by Murad AA special attorney of the landlord. In support of his contentions he placed reliance on the following judgments: (i) Haji Muhammad Ramzan v. Mian Jamil Shah (PLD 1967 Pesh. 380); (ii) Munir Hussain v. Mst. Mehrun Nisa (PLD 1982 Kar. 71); (iii) Gul Dad Khan v. Rahim Shah (PLD 1978 Kar. 19); (iv) Mst. Sarwar Sultan v. Mrs. Saeeduddin NLR 1980 AC (Lahore‑460). In reply the learned counsel for the petitioner submits that Articles 17 and 79 of Qanun‑e‑Shahadat were applicable to documents which had come into existence after 1984. As regards the documents which existed prior to the enforcement of the Order, the provisions of section 68 of Evidence Act were applicable.

4. There is considerable force in the arguments raised by the petitioner's learned counsel. .The appellate Court did not care to meet the reasoning of the learned Rent Controller regarding his findings on issue No.1 and illegally allowed the appeal of respondent No.i. The learned Rent Controller had come to the conclusion that rent‑deed ExhA‑1 was proved through the statement of Muhammad Yousuf AW‑1 and Shaukat Mahmood AW‑2, He also noted that respondent No.1 had advanced a false plea of purchase of the disputed shop from one Ayub but did not produce any evidence to substantiate the same. The appellate Court appears to have rejected the testimony of AW‑1 and AW‑2 on exteraneous considerations. Muhammad Yousuf AW‑1 had clearly stated that he had signed ExhA‑1, rent‑deed, as a marginal witness and that Haji Muhammad Ismail respondent No.1 had signed in his presence. He also stated that Mehdi Shah, the other marginal witness had appended his signature on the said document in his presence. True, he stated that the rent‑deed had already been written and was brought to the shop for his signature but the same does not detract from validity of the document because respondent No.1 had voluntarily signed it and thus owned the contents of the documents. This witness has honestly stated that he did not know Haji Muhammad Ismail earlier. It simply meant that he had known him since the date of signing the document. Moreover, no suggestion was put to him that, in fact some other person was produced who had signed posing himself as Haji Muhammad Ismail. This witness was not in any doubt about the fact, that it was Haji Muhammad Ismail, respondent, who had signed the document although he was not known to him prior to the date of signing it. The specific assertion that Muhammad Ismail, respondent No.1 had signed the rent deed was not even challenged in cross‑examination, which would amount to admission of the said statement. The other marginal witness namely Mehdi Shah had passed away and his son Shaukat Mahmood appeared in the Court who duly identified the signature of his late father on ExhA.1. Mehdi Shah had signed the document in the absence of this witness but he being the son was conversant with the handwriting and signatures of his father and had identified the signature on the document. The document Exh.A.1 was duly proved through the statements o1 A.W.1 and A.W.2. For proving execution of the document it was not necessary to produce the scribe of the document in the Court. The argument of the respondent's learned counsel that the rent deed (Exh.A.1) should have been proved in accordance with the provisions of Articles 17 and 79 of Qanun‑e -Shahadat has no force as the said document had come into existence in the year 1967 and Qanun‑e‑Shahadat was enforced in the year 1984. Even otherwise, under Article 79 of Qanun‑e‑Shahadat, execution of the document has to be proved by the two attesting witnesses, if alive. In the present case one attesting witness namely Muhammad Yousuf was alive and examined as A.W.1. The other attesting witness namely Mehdi Shah had died and his signatures were proved through the evidence of Shaukat Mahmood, A.W.2, son of the deceased witness. There is nothing to show that the witnesses were not competent to testify as required by Article 3 read with Article 17 of the Qanun -e‑Shahadat. Both the witnesses appear to be truthful persons and their testimony can be safely relied upon.

5. In the presence of the above referred evidence, burden shifted to respondent No.1 to show in what capacity he was occupying the disputed shop. In his written statement he admitted that he was in possession of the shop but denied that he was a tenant. He neither asserted in the written statement that he was owner of the shop nor claimed that he was a trespasser or an unauthorised occupant. However, while appearing as R.W.1 he falsely claimed to have purchased the shop from one Ayub. The learned Rent Controller disbelieved the said statement and rightly concluded that respondent No.1 was in occupation of the shop as a tenant under the petitioner. Respondent No.1 had stated that he never paid rent to the landlord. Now he cannot turn round and plead payment and is liable to be evicted on the ground of wilful default.

6. The argument of the respondents' learned counsel that the ejectment petition was not competently filed by Murad Ali, special attorney of the petitioner, has no force. The petitioner had duly appointed Murad Ali as his special attorney and authorised him to institute ejectment petition, appoint a counsel, make statement in the Court, file application etc. The judgment in the case of Munir Hussain v. Mst. Mehrun Nisa (PLD 1982 Karachi 71) relied upon by the respondent's learned counsel is distinguishable because m that case the execution of the power of attorney was seriously disputed and it was held that it was not proved. Moreover, in the above judgment the attorney was not even authorised to institute the ejectment petition. In the present case, the petitioner did not say a single word in his statement to challenge the validity of the general power of attorney.

7. The respondents' learned counsel also relied on the cases of Haji Muhammad Ramzan and Guldad Khan to urge that entries in the Excise and Taxation Register are not relevant for deciding question of relationship of landlord and tenant between the parties. Of course, the entries in the E.T.O. record, per se, are not sufficient to decide the said question but where the claim of landlord is based on his ownership of the property, the entries are relevant. This view finds support from the cases of Muhammad Fazal v. Tariq ,J‑' Aziz Malik 1989 MLD 2213 and Ghulam Fatima etc. v. Syed Bashir Ahmad (1982 CLC 1575). In `the present case the entries of the E.T.O. record pertaining to the year 1987/88 (ExhA.3) show that the property belonged to Murad Mirza, predecessor‑in‑interest of the petitioner and the 4 shops therein were occupied by different persons as tenants, including Hafeez Qasab, respondent No.2 who, according to Haji Muhammad Ismail respondent No.1 was his servant. Moreover, the relationship of landlord and tenant between the petitioner and the respondent No.1 is established through a written document Exh.A.1 which is proved by the statements of Muhammad Yousuf A.W.1 and Shaukat Mahmood, A.W.2. He also placed reliance on the case of Sarwar Sultan v. Saeed‑ud‑Din (NLR 1980, A.C. (Lah.) 460) to urge that the appellate Court was justified to reverse the findings of the Rent Controller on re appraisal of the evidence. The said judgment proceeds on its own peculiar facts and has no bearing on the facts and circumstances of the present case.

8. For the foregoing discussion, I allow this petition, declare the impugned order, dated 3‑5‑1989, passed by the learned Additional District Judge to be without lawful authority and of no legal effect and restore that of the Rent Controller, leaving the parties to bear their own costs. A.A./M‑212/L Petition allowed.