1994 PLP 65 (SCMR)

MUHAMMAD AFZAL LONE, J.‑‑‑Leave to appeal was granted to examine the issue "that right of appeal being available which was adequate and A efficacious remedy, the Constitution petition filed by the respondents, as such was not maintainable".

2. The facts are that Syed Muhammad Hussain, who died during the pendency of this litigation and was substituted _ by the appellants filed an ejectment petition under section 17 of the. Cantonments Rent Restriction Act against the respondents' predecessor‑in‑interest, namely, Muhammad Zafar, for his eviction from a part of Property No. 1428/11‑12, Ahata Mehtab Rai, Sadar Bazar, Sarwar Road, Lahore Cantt, on the ground of default and bona fide personal need of his son Syed Qamar Ahmad. The demised property was de abed as consisting of 3 rooms and other ancillaries. According to, the averments made in the ejectment petition. It was rented out to Muhammad Zafar deceased at the monthly rent of Rs.500, vide rent deed dated 20‑7‑1975, and the tenancy commenced with effect from 1st August, 1975. The deceased contested the ejectment petition for want of notice under section 30. of the Displaced Persons (Compensation and Rehabilitation) Act, 1985, and denied the relationship of landlord and tenant. The plea of res judicata was also raised. This plea was rested on the ground that Muhammad Hussain had also filed a civil suit directly and substantially and issue was same. The learned Rent Controller framed a preliminary issue as to whether relationship of landlord and tenant existed between the parties. At the trial it transpired that the original rent deed had been lost. Syed Muhammad Hussain entered the witness‑box and deposed that the property was rented out to Muhammad Zafar deceased. The rent deed was scribed by Muhammad Tufail, Petition writer. It having been lost could not be produced and that a copy thereof was in his possession. He also examined Muhammad Tufail, Petition‑writer, as P.W.2. The latter produced his register and proved the copy of the rent deed, which was tendered in evidence, as Exh. P.W.2/1 two other persons, Syed Muhammad Ayub and Ch. Muhammad Hussain also appeared as witnesses for the landlord and tenant between the parties. In rebuttal there was a solitary statement of respondent No.2. On evaluation of the evidence of the parties the learned Rent Controller by his order dated 8‑11‑1983 decided the preliminary issue is favour of the appellants.

3. This order was amenable to appeal under section 24 of the Contonments Rent Restriction Act, but instead of filing the appeal, the respondents challenged its validity by invoking writ jurisdiction of the High Court. The appellants objected to the maintainability of the writ petition and contended that an adequate alternate remedy by way of appeal was available to the respondents but this objection was turned down by the learned Single Judge by his judgment dated 9‑2‑1988 he accepted the writ petition and set aside the Rent Controller's order dated 8‑11‑1983. The reasons which influenced the decision of the learned Single Judge are: --‑‑While passing this order, the learned Rent Controller has taken into consideration the fact that a civil suit for possession of the disputed premises against the petitioners and Mian Rafiud‑Din had already been filed by the respondents and that the same was still pending when the evictor application was filed and even when the impugned order was passed. In the said suit for possession, the respondent did not claim that the petitioner or their predecessor‑in‑interest were in occupation of the premises in dispute as tenant under him. In that suit he claimed a sum of Rs.9,000 on account of compensation for use and occupation at the rate of Rs.750 per month from Mian Rafi‑ud‑Din and the petitioners. Thus, no tenancy was claimed by him. In the ejectment applications, he claimed that the petitioners were in possession of the premises as tenants at the rate of Rs.500 per month. P.W. 2/1 copy of the entries of the deed‑writer's register has been admitted into evidence without proof of the lease of the original nor it was pleaded that the original was in possession of the petitioners. The same was not even ,summoned from them. In such circumstances secondary evidence was not legally admissible. While passing the impugned order, the learned Additional Rent Controller, Lahore Cantt. has factually violated the principles governing the exercise of judicial discretion and his order, to say the least about it, can be termed as an unfair order which has been passed without applying the judicial mind."

5. We are unable to uphold the impugned judgment. This case relates to the period before the enforcement of Ordinance No.9 of 1985, whereby section 24 was amended and right of appeal was confined only against final order. Whether the order dated 8'‑11‑1983 is categorized as an interlocutory order or a final order in both the cases it could be assailed though an appeal. Where a Statute, under which the impugned order is made, itself provides the remedy, the High Court should be loathed to bypass special Statute and embark upon judicial review. We feel that in the circumstances of the case the remedy of appeal was quite convenient, beneficial and effective; and the High Court should have refused to issue the writ.

6. On merits we find that the reasons which weighed with the High Court in interfering with the order of the Rent Controller are far from satisfactory. The rent deed is supposed to be in the custody of the landlord and not the tenant, as presumed by the learned Single Judge. There was thus no question of summoning the rent deed from the respondent. The appellant produced a cogent evidence and successfully proved that the original rent deed was lost. It was a fit case for production of secondary evidence. The question as to whether or not sufficient grounds have been read out for acceptance of secondary evidence is a matter to be properly adjudicated upon by the trial Court and is to be treated as well within its jurisdiction. Exercise of such discretion unless found to be manifestly perverse and illegal is usually not interfered with by the Appellate Court muchless to be set aside through judicial review. After perusal of the evidence on the record, we are of the view that there is sufficient material to hold that the original of the document Exh. P.2/1 was executed by the predecessor‑in‑interest of the respondents.

7. The effect of the civil suit filed by Syed Muhammad Hussain on the ejectment proceedings remains to be considered. It is evident from the impugned judgment that the main reason for dismissal of the ejectment petition was that in the civil suit the deceased claimed a sum of Rs.9,000, not as rent, but as compensation for use of the demised property in question and ‑the existence of tenancy between the parties was not pleaded. We have noted that the copy of the plaint in the civil suit was produced in evidence as Exh.IW.l/1 by respondent No.2 in his statement after closure of their evidence by the appellants' predecessor‑in‑interest. He was never confronted with this document. The question is whether in law it could be used against him and its contents read in evidence. Our answer is in the negative. Under section 145 of the Evidence Act, then in force, a party relying on the previous statement of the other party embodied in a document should put that document to him and give him an opportunity to explain his position. Without complying with the requirements of section 145, such previous statement cannot be used as legal evidence. Reference in this connection may be made to Sikandar Hayat and others v. Master Fazal Karim (PLD 1971 SC 730) and State v. Habibur Rehman (PLD 1983 SC 286). As provisions of section 145 were not followed, the reliance of the High Court on the plaint in the civil suit is thus illegal. With respect, the learned Single Judge did not pay proper attention to the material on the record which fully established the existence of relationship of landlord and tenant between the parties. There was no illegality muchless jurisdictional defect in the order of the Rent Controller to justify interference through judicial review. It is noteworthy that before the learned Civil Judge the respondents urged that because of the ejectment petition the appellants' suit could not proceed. This objection was upheld and the suit dismissed. The respondents have been approbating and re‑approbating, and thus by their own conduct were not entitled to the discretionary relief under writ jurisdiction. For all these reasons, this appeal is accepted, the impugned judgment. set aside. Consequently, the Rent Controller's order dated 8‑11‑1983 stands restored. He shall now proceed with the decision of the case on merits. The parties are left to bear their own costs. AA./Q‑49/S Case remanded.