1984 PLP 1020 (CLC)

‑‑S. 100, O. XLI, r. 27‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13‑Additional evidence, production of‑Additional evidence if allowed to be adduced by appellant likely to set up a new case for which no foundation laid down by appel lant either in pleadings or in evidence‑Additional evidence, being receipts of rent received by landlord but since they related to period prior to period of default same not helpful in pronouncing judgment in second appeal‑Application for adducing additional evidence made more than six years after recording evidence of parties and five years after presentation of second appeal‑Reasons given for not producing additional evidence at stage of trial, before first appellate Court or at time of filing second appeal vague and very general in terms and no satisfactory explanation given as to why these documents could not be produced earlier ‑‑ Application for permission to adduce additional evidence dismissed in circum stances.‑‑[Evidence]. Raza Hussain v. District Board, Banda A I R 1933 All. 104 Mst. Ruwaiya Khatun and others v. Mst. Maqbool Fatima and others AIR 1936 All. 217 ; Durya Tewary v. Romrati Kuer A I R 1937 Pat. 584 Rehmatullah v. Fateh Muhammad 1980 C L C 1002 ; Iftikhar Hussain Khan Mamdot v. Ghulam Nabi Corporation Limited P L D 1971 S C 550 and Allahrakhi v. Sakina Bibi P L D 1969 Lah. 168 ref. . In this Second Rent Appeal the appellant/tenant has filed this appli cation under Order XLI, rule 27 read with section 151, C. P. C. praying that the appellant may be allowed to bring additional evidence on record Rent Case No. 3393/75 was filed on 18th September, 1975 by the respon dent for ejectment of the appellant on the ground of default, personal requirement and damage to property. The ejectment application was resisted by the appellant who filed his written statement in May, 1976 Respondent's evidence was recorded in May, 1977 and the appellant gave evidence in August, 1977. By order dated 23rd August, 1977, the Rent Controller dismissed the ejectment application. First Appeal No. 320/77 was filed on 8th October, 1977 by the respondent/landlord and the First Appellate Authority allowed the appeal by older, dated 4th February, 1978 on the ground of default in the payment of rent for one month and on the ground of personal requirement. The appeal was admitted by order, dated 27th March, 1978 of this Court. Present application C. M. A. No. 209/83 has been filed an 31st January, 1983, and as observed earlier, in this application it is prayed that the appellant/tenant may be allowed to bring additional evidence on record. The addi tional evidence sought to be brought on record are documents which are Annexures "A. A‑

1. B. 8.1 to B‑12" to the application. The application is opposed by the resplendent who has filed a counter‑affidavit dated 22nd March, 1983 in which it is inter alia pleaded that the application for additional evidence is beyond the scope of the pleadings, evidence on record, scope of inquiry as well as the respective contentions of the parties before the Tribunals below and has been filed at a very late stage to delay the hearing of the appeal. I have heard at length the arguments of Mr. Z. U. Ahmed, learned counsel for the appellant/applicant and Mr. Syed Hamid Ali, learned counsel for the respondent.

2. In this application it is mentioned that appellant's father‑in- law, Syed Bismillah Shah, had previously taken the premises in question on rent from the respondent in February, 1.969 and an amount of Rs. 540 was paid by Syed Bismillah Shah to the respondent out of which Rs. 180 was adjusted as rent for February, 1969 and the balance of Rs. 360 was fixed deposit which was refundable to Syed Hismillah Shah at the time of his vacating the premises. It is then stated in the application that while the appellant was with Syed bismillah Shah, the tenancy, during the lifetime of Syed Bismillah Shah was changed in the name of the appellant in 1972 but the respondent did not adjust the rent from the aforesaid deposit which the appellant is liable to adjust. Accord ing to the appellant, his brother‑in‑law, who was residing with the appellant, shifted to a new house and in this process many of the documents and rent receipts were either misplaced, lost or became untraceable and these documents were discovered subsequently. The evidence that is sought to be brought on record is an agreement, dated 3rd February, 1969 between Syed Bismillah Shah and the respondent, a receipt of Rs. 540, dated 3rd February, 1969 executed by the respon dent in favour of Syed Bismillah Shah, 9 rent receipts and 4 money order receipts.

3. It was argued by Mr. Z. U. Ahmed Advocate that the documen tary evidence sought to be brought on record has a direct bearing on the issue relating to default and unless this evidence was brought on record the appellant will be seriously prejudiced and this Court will not be able to pronounce judgment in this Second Appeal in accordance with law and the actual facts. It was further argued that in the interest of justice this application may be allowed although it has been submitted at this stage. In support of this contention, learned counsel for the appellant relied upon the following reported judg ments :‑ (i) Raza Hussain v. District Board, Banda A I R 1933 All. 104. (ii) Mst. Ruwaiya Khatun and others v. Mst. Maqbul Fatma and others A I R 1936 All. 217. (iii) Durya Tewary v. Ramrati Kuer A I R 1937 Pat. 584. (iv) Rehmatullah v. Fateh Muhammad 1980 C L C 1002. (v) Iftikhar Hussain Khan Mamdot v. Ghulam Nabi Corporation Limited P L D 1971 S C 550. (vi) Allahrakhi v. Sakina Bi6i P L D 1969 Lah.

168. In A I R 1933 All. 104 it was observed that where the Appellate Court accepts the allegations contained in the affidavit and is satisfied that there was a good cause for not discovering certain papers at an early stage, the Appellate Court is perfectly justified in admitting such docu ments as fresh evidence. In A I R 1937 Pat. 584 it was held that if one party offering to produce new additional evidence would have been entitled to obtain a review of the judgment on the ground that such evidence was not available at the trial and was material to the decision of the judgment, the Appellate Court will be justified in admitting such additional evidence. In 1980 C L C 1002, a learned Single Judge of this Court, while hearing a Second Rent Appeal allowed the application of the appellant/ tenant on the ground that documents were vital in nature and supported the case of the appellant and although it was not ascertainable as to why those documents were not produced in evidence before the Rent Controller and no mention of them was made before the Appellate Court in the interest of justice it was considered necessary to allow the appellant an opportunity to adduce additional evidence. P L D 1971 S C 550 was cited by the learned counsel for the appel lant for submitting that in a First Appeal, Lahore High Court granted an application of the respondent under Order XLI, rule 27, C. P. C. for examining Mr. Justice Muhammad Yaqub Ali Khan as Lahore High Court was of the view that without examining Mr. Justice Muhammad Yaqub Ali Khan it would not be possible for the Court to give a judgment on one of the points involved in the appeal. In A I R 1936 All. 217 it was held that under sub‑rule (1) (b) added by High Court in Order XLI, rule 27, the question of admission of new evidence does not depend on the requirement of the Appellate Court and a party has a right if he satisfies the Court that he exercised due diligence and the new evidence was not within his knowledge or could not be produced by him at the time when the decree or order under appeal was passed to get additional evidence admitted.

4. In my view the appellant has not made out a case for bringing additional documentary evidence on record. In so far as the agreement between Bismillah Shah and the respondent is concerned, it may be obser ved that the appellant was not a party to such tenancy agreement. It was never the case of the appellant that he stepped into the shoes of Bismillah Shah. As regards the tenancy of the premises in question, if at all a sum of Rs. 360 had remained with the respondent as the amount deposited by Bismillah Shah, the appellant cannot take any benefit as it was not pleaded by the appellant that the amount was to be adjusted against the rent payable by the appellant. If such evidence is allowed to be adduced, the Court will be permitting the appellant to set up a new case for which no foundation has been laid by the appellant either in the pleadings or in the evidence. As regards the rent receipts, those receipts which bear the signatures of the respondent are not denied by Mr. Syed Hamid Ali, learned counsel for the respondent. Other receipts that is Annexures "B, B‑1, B‑2, B‑4, B‑5, B‑6, B‑7 and B‑8" have been denied by the learned counsel for the appellant as according to him they do not bear signatures of the respondent. It is admitted by the learned counsel for the appellant that all these receipts relate to a period prior to the period for which the default is claimed but it was argued that the purpose of bringing these receipts on record as additional evidence was to show that rent was paid every month in time during the period to which these receipts relate. In my view, for pronouncing judgment in this Second Appeal it is not necessary to bring these receipts on record as the point in issue relating to default involved in this appeal is whether the default had been committed in the payment of rent for the period mention ed in the order of the Appellate Authority and all the receipts now sought to be brought on record relate to a prior period. As regards the four money order receipts, Mr. Syed Hamid Ali pointed out that three out of these four documents are already on record as Exhs. 5‑B/l, 6‑C/2 and 6‑C/3. The money order receipt which is Annexure "B‑11" is dated 17th February, 1975 and does not bear the sig nature of the respondent. Learned counsel for the respondent further pointed out that in his cross‑examination, the appellant has stated that he had sent three money orders whereas now a fourth money. order, which is unsigned, is attempted to be introduced in evidence. I agree with the learned counsel for the respondent that as a statement has been made by the appellant that he had sent three money orders, he cannot now change his case by a fourth money order receipt which is not signed by the respondent. It may further be observed that accord ing to the learned counsel for the appellant, the appellant used to send monthly rent in advance. Annexure 'B‑11' dated 17th February, 1975 is for Rs. 230, the admitted rent at the time the ejectment application was filed. The case of the respondent in the ejectment application is that he did not receive rent from March, 1975. As such Annexure 6B‑11' relates to a period which is prior to the date from which the default is alleged.

5. This application has been made more than 6 years after the evidence of the parties had been recorded and nearly 5 years after the present: Second Appeal had been filed. I find from a perusal of this application and the affidavit of the appellant in support of the application that then reasons for not producing this evidence at the trial or even at the stage of the First Appellate Authority or at the time this Second Appeals filed is vague and in general terms. In para. 4 of the applications it is mentioned that since appellant's brother‑in‑law, who was residing with the appellant, shifted to a new house, many of the documents and rent receipts were either misplaced, lost or became untraceable. It is not mentioned when appellant's brother‑in‑law shifted to a new house and apart from the two documents relating to Bismillah Shah, why other documents which are documents of the appellant were in possession of the brother‑in‑law of the appellant. If at the time the evidence was given before the Rent Controller, the brother‑in‑law of the appellant has not shifted from the house in question, the rent receipts and the money order coupons which relate to the appellant must have been in the house and if search had been made, the documents could have been traced out and produced in evidence. As observed earlier, the reason given in para. 4 of the application is vague and very general in terms. Accordingly there is no satisfactory explanation forthwith coming from the appellant' side as to why these documents could not be produced earlier and whether a diligent search had been made at the trial stage for the documents.

6. As no satisfactory explanation has been given as to why these, documents could not be produced earlier and as it is not considered necessary that any of these documents are required to be produced to enable this Court to pronounce judgment in this appeal, I find nor merit in this application. C. M. A. No. 209/82 is dismissed. The case' will now be fixed for regular hearing of the appeal. M. Y. H. Application dismissed.