1986 PLP 2025 (CLC)

Dates of hearing: 2nd and 5th September 1984. The respondent filed an ejectment application on 15‑2‑1977 alleging that the appellant who is a tenant of house bearing Survey No. 8/15 Fatima Jinnah Road Hyderabad has failed to pay rent from October, 1973 to January, 1977. The appellant filed written statement in which it was pleaded that on 27‑1‑1971 the respondent had agreed to sell the house to the appellant for Rs.5,

000. It was also pleaded that the appellant had offered the rent for the month of October and November, 1973 which the respondent avoided to receive, therefore, he remitted the rent by bank draft, dated 1‑11‑1973 which was received by the respondent on 7‑11‑1973. Subsequent money orders sent to the respondent were also refused by him. It was specifically pleaded that on 20‑4‑1974 a settlement was reached between the parties regarding rent and arrears and all disputes were settled It was also averred that the appellant had spent huge amount on repairs of the premises and in pursuance of agreement, dated 20‑4‑1974 further repairs were carried out costing him Rs.2,

226. He has alleged to have paid taxes and claimed adjustment. Although in the written statement amongst the list of documents relied upon writing, dated 27‑1 1970 has been mentioned, it was not filed before the Controller. The learned Controller framed the following issues. (1) Whether the opponent has committed any wilful default in payment of rent. (2) Whether the applicant executed agreement, dated 20‑4‑1974 and permitted the opponent to carry out the repairs to the extent of Rs.2,

000. If yes what is its effect.

3. What should the order be. The learned Controller by his order, dated 4‑4‑1979 held that the appellant has committed default and the ejectment application was granted. The appellant filed First Appeal before the Additional District Judge, which was also dismissed by the impugned judgment, dated 26‑9‑1981. Mr. Zafar Alam Khan the learned counsel for the respondent has raised a preliminary objection that the appeal is barred by time. In this regard the learned counsel has contended that when the second appeal was filed the appellant had annexed with his memo of appeal a photo copy of order of the Controller and moved an application (C.M.A. 3350/81) seeking exemption from filing the certified copy of that order. On 17‑1‑1982 the Court ordered the certified copy to be filed within one month and no exemption was granted. The learned counsel, therefore, contended that as no certified copy of the order of the Controller has been filed the appeal is barred by time. In this regard the learned counsel has relied on Muhammad Hanif v. Faqir Muhammad P L D 1977 Lah. 1214 where certified copy of the order of the Controller was not filed and it was held that as the provisions of C.P.C. are applicable to the appeals filed under West Pakistan Urban Rent Restriction Ordinance. 1959 and Order XLII, rule 2 provides that certified copy of the order of the Trial Court i e. the Controller should be filed with the memo of second appeal and unless its production is dispensed with, non‑production of such order within the period of limitation will render the appeal barred by time. At this stage it may be mentioned that by virtue of Explanation to section 15 of West Pakistan Urban Rent Restriction Ordinance the provisions of section 96 to Ist appeal and section 100 to second appeal have been applied. The provisions of Part VI and First Schedule to C.P.C. relating to the appeals were also made applicable to appeals with such modification as the context may require. The learned counsel also referred to Sheikh Muhammad Ayub v. Nizeer Ahmed Hashmi 1980 C L C 895 where relying on Order XLII, rule 2, C.P.C. it was held that a second appeal filed without certified copy of the Rent Controller's order cannot be treated to be properly instituted. The learned counsel for the respondent referred to Muhammad Ismail v. Muhammad Yousuf 1981 C L C 1731 where relying on Muhammad Hanif's case the appeal was dismissed for non‑production of certified copy of the order of the Controller. In all the aforestated cases reliance has been placed on Order XLII, rule 2, C . P . C . which reads as follows:‑ "In addition to the copies specified in Order XLI rule, 1, the memorandum of appeal shall be accompanied by a copy of the judgment of the Court of first instance unless the Appellate Court dispenses therewith." It may be noted that this rule was added by amendment made in C.P.C. by High Court of Judicature at Lahore on 19‑3‑1926 which was enforceable in Punjab only. However, similar provision has been made by rule 1‑A (b) of Chapter I Part A of Rules and Orders of the High Court of Judicature at Lahore, Volume V which is applicable to this Court, This rule was taken note of in Khair Muhammad v. Abdul Qadoos P L D 1965 Kar. 367 and non‑production of the certified copy of the order of the Controller was dispensed with. In the present case photo copy of the certified copy of the Controller was filed with the memo of appeal, therefore, I would dispense with the production of its certified copy because in these circumstances treating the appeal as time‑barred would amount to deciding it on a very narrow and technical objection. Now coming to the merits Mr. Mirza Ghiasuddin Baig the learned counsel for the appellant has contended that both the Courts below have failed to consider the evidence on record and Exh. 68 was not allowed to be proved by the Controller. To appreciate this contention it is necessary to advert to certain facts and proceeding of the case. The appellant had pleaded that from October, 1973 to March 1974 he had remitted the rent by money order and money order receipts have been produced on record. The main defence was that in view of the settlement between the parties on 20‑4‑1974 a document was executed by the respondent whereby the appellant was allowed to adjust the rent in the cost of repairs. The respondent was examined on 27‑3‑1978 and he straightaway denied the execution of this document. The respondent also produced Muhammad Ahmed who is alleged to be a signatory to this document as a witness but he also denied his signature on it. The appellant then produced this document in his statement which was recorded in May 1978. Thereafter, on 2‑7‑1978 the appellant filed an application under section 151 C .P . C . read with section 73 of Evidence Act praying that the disputed signature on the document, dated 20‑4‑1974 should be sent to a handwriting expert for comparison with the admitted signatures of the respondent and alternatively it was prayed that the Court may compare the disputed signature with the admitted signatures of the respondent. This application was disposed of on 19‑8‑1978 when the learned Controller in view of the objection of the respondent that this application was motivated to cause delay and as the respondent had no objection to the alternative prayer, allowed the application to the extent of the alternative prayer. The learned Controller has observed that after comparison he has not been able to come to any conclusion free from doubt. However, on certain cogent reasons he had held that the document was not signed by the respondent. Mr. Baig has very strenuously assailed the finding of the First Appellate Court and contended that from his observation it is clear that neither the First Appellate Court properly examined the record nor applied his mind. This contention seems to be correct as the observation of the learned first appellate Court that only photo copy of the document has been filed which is not admissible is completely incorrect because the appellant had filed the original document which is marked Exh.

68. The photo copy was filed with the written statement and possibly the learned First Appellate Court took it as the document filed by the respondent. From this observation of the learned First Appellate Court it is clear that it has not taken care to see the record and the observation has been made without any justification. The judgment of the First Appellate Court gives the impression that it is merely a summary of the order of the Controller. For this reasons I have examined the entire evidence to ascertain whether the finding of the learned Controller is correct Mr. Baig has made serious grievance of the fact that the learned Controller did not allow the document to be sent to the handwriting expert although even after examining with naked eye he could not come to any correct conclusion. It is pertinent to note that although section 73 of Evidence Act permits the Court to compare the signature but it is a risky process and merely on such comparison some time it is difficult to base the finding. The appellant had made alternative prayer for comparing the signature and if that mode has been adopted by the Controller no grievance can be made on this account. Moreover the appellant could have made an application for examination of the document by handwriting expert immediately when the appellant had denied its execution. The appellant waited till such time that his statement was over and filed the application at a late stage. The fact remains that this document could have been proved by other evidence also but no steps were taken by the appellant This document is witnessed by three witnesses. The appellant made an application for summoning all these three witnesses but in spite of the fact that the application was granted, they were not produced One of the signatory viz. Muhammad Ahmed was produced by the respondent who denied his signature. The other witnesses who could have been examined to prove this document were not produced. Besides this, the document is not alleged to have been written by the appellant or the respondent, therefore, the writer of this document could also have been produced to prove it. All these courses were open to the appellant to prove the execution of this document but he failed to take any step in that regard. He had chosen to apply for its examination by a handwriting expert but in the circumstances of the case and in view of his alternative prayer the order of the Controller was justified. The appellant has failed to prove the execution of the document by the respondent. Mr. Zafar Alam Khan the learned counsel for the respondent has contended that the attending circumstances of the case also do not justify the conclusion that this document was executed by the respondent. In the written statement as well as in his statement the appellant stated that under an agreement, dated 27‑1‑1971 the respondent had agreed to sell this house to the appellant but this agreement was never produced. If the respondent had agreed to sell the house on 27‑1‑1971 which the appellant had agreed to purchase then on 20‑4‑1974 there was no question to enter into an agreement for adjustment of rent. The appellant has not stated that this agreement was cancelled. Again the appellant has stated that the respondent had agreed to sell the house to Muhammad Ilyas his son‑in‑law before execution of Exh.

68. In that event also the appellant would have never executed or entered into an arrangement as stated in Exh.

68. It may also be mentioned here that Muhammad Ilyas had filed a suit for specific performance of the contract which was dismissed on the ground that agreement has not been executed by the respondent. These facts clearly establish that document, dated 20‑4‑1974 was not executed by the respondent and it was planted to create a defence for non‑payment of rent. As the document has not been executed by the respondent the appellant has admittedly not paid the rent and is a defaulter. The learned counsel for the respondent alternatively contended that without admitting that the document was executed by the respondent, even if it is so, the appellant is a defaulter. According to the appellant the respondent had permitted the appellant to carry out the repair and to adjust it in the rent. The appellant has stated that in pursuance of this arrangement, dated 20 4‑1974 he carried out repairs and spent more than 2,000 which he has been adjusting in the rent. In this regard he has produced receipts which were issued in January, February and March. Therefore. even in terms of the alleged agreement the appellant was not entitled to adjust the expenses incurred by him as witnessed by these receipts, as the repair charges are not in respect of repairs carried out after 20‑4‑1974. In this view of the matter the appellant is a wilful defaulter. The appeal is, therefore, dismissed.