1984 PLP 110 (CLC)

‑‑ S. 15 read with Civil Procedure Code (V of 1918), O. XLI, r. 27 and Evidence Act (I of 1872), Ss. 64 & 65 ‑Ejectment proceed ings‑Additional evidence‑Application for production of, before appellate Court‑Documents (copies) sought to be produced already produced in original in civil suit between landlord and tenant- Order of District Judge rejecting application on grounds that same was filed belatedly and that it was hit by S. 65, Evidence Act set aside and case remanded to Rent Controller for considering docu ments and for deciding question of default after recording further evidence of parties. Ghulam Qadir and 2 others v. Muhammad Sharif and 9 others 1979 CLC527ref. This second appeal is filed against the impugned judgment, dated 16th May, 1979 of learned District Judge, Hyderabad, whereby he has dis missed the appeal filed against the order of ejectment passed by the learned Rent Controller on 28th February, 1978.

2. Briefly stated the relevant facts are that the respondent/landlord filed an application for ejectment on the ground of default of payment of rent from November, 1974 to December,

197. The rent was payable at the rate of Rs. 65 per month and the rented premises are a shop. Written statement was filed before the learned Rent Controller in which the plea of default was denied and subsequently tentative rent order was passed and after the recording of evidence finally the learned Rent Controller passed the order of ejectment for the reasons that according to him the default has been committed. The appellant tenant filed first appeal before the learned District Judge, and during the pendency of the appeal he had filed an application under Order XLI, rule 27, C. P. C. for pro duction of additional evidence, which was dismissed after hearing both the parties. Subsequently, the appeal was also dismissed on merits.

3. Mr. Ejaz Ali Hakro, the learned counsel for the appellant has submitted that his application under Order XLI, rule 27, C. P. C. should not have been dismissed by the learned District Judge on technical grounds for the reason that the learned District Judge .was hearing an appeal in a rent matter and section 15(3) of West Pakistan Urban Rent Restriction Ordinance, 1959, specifically provides that the appellate authority has the powers of deciding the matter by making such further inquiry personally or through the Rent Controller and the application for additional evidence could have been decided by him or the matter could leave been remanded to the Rent Controller for such inquiry. Reliance is further placed by the learned counsel on the decision of Lahore High Court in the case of Ghulam Qadir and 2 others v. Muhammad Sharif and 9 others (1979 C L C 527). It is held in this decision that restrictions contained in Order XLI, rule 27, are not applicable in the proceedings before the Rent Controller and the Rent Controller could ignore the technicalities and make inquiry on merits.

4. It is further submitted by the learned counsel for the appellant that according to the copy of the application of ejectment received by appellant/ tenant default was claimed from November, 1975 to December, 1975 as such during the proceedings before the Rent Controller the tenant was under the impression that he has to satisfy the Court with regard to the default after November, 1975. It also appears from the record that before the filing of application for ejectment a suit was filed by the tenant against the landlord for permanent injunction and it is stated by Mr. Hakro that in that suit rent receipts were filed which fact was within the knowledge of the landlord. It is further submitted that tenant had produced one photostat copy of receipt relating to September, 1975 but did not file receipts for months preceding to that date for the reason that he was under the impression that according to the landlord tenant had committed default after November, 1975. It is submitted that this aspect of the case has been adverted to by the learned Rent Controller in the order of ejectment and this point was also taken up in the memoran dum of appeal and subsequently an application was filed before the appel late Court for additional evidence in which request was made that he be allowed to produce receipts or copies of receipts from December, 1974 to September, 1975 which were already produced in the civil suit between the same parties.

5. I have seen the order passed by the learned District Judge, on the application under Order XLI, rule 27, C.P.C. in which it is stated that application for additional evidence was filed in the appellate Court belatedly and that it was hit by section 65 of the Evidence Act as under section 64 of the same Act every document is to be proved by primary evidence and the secondary evidence regarding documents is permissible only under the conditions envisaged by section 65 of the same Act. It is submitted by the learned counsel for the appellant that these technical grounds should not have been relied upon for rejecting the application for additional evidence as these documents were important to determine the question of default and further that both the parties before the learned Rent Controller were parties in the civil suit in which the same documents in original were produced. Mr. A. Khaliq Khan, learned counsel for the respondent has conceded to the legal position as enunciated in the decision of Division Bench of Lahore as stated above.'

6. In the circumstances, the impugned judgment are set aside and the case is remanded to the Rent Controller to consider the receipts which were already produced by the tenant in the civil suit and decide the question of default after recording further evidence of the parties. Since this is an old matter the Rent Controller is directed to dispose of this matter within two months from the date of this order. There will be no order as to costs. S. Q. Case remanded.