1980 PLP 764 (SCMR)

NASIM HASAN SHAH, J. The petitioner has been ordered to be ejected from what he described as an open space, which is contiguous to the property of the respondent, on which he claims to have constructed a khokha and is doing the business of a fruit seller therein. Admittedly, the petitioner does not claim any title of this open space but according to him this property belongs to the Municipal Committee, Hafizabad and not to the petitioner, who is a transferee of the adjoining property. The respondent's case for the ejectment of the petitioner was based on the circumstance that the latter had at one time tendered rent to him thereby accepting him as his landlord and he could not resile from that position. In support of his allegation that the petitioner had, indeed, tendered rent to him reliance was placed on the‑ circumstance that two money orders were remitted by him towards the payment of rent, which were refused and the amount was, subsequently, refunded to the petitioner by the postman concerned. Photostat copies of the money order forms and refund vouchers (Exh. A/1 to Exh. A/4) were produced to prove this fact. The postman Ghulam Nabi, P. W. 3, who handled the money orders, was also produced. The only evidence in rebuttal led by the petitioner was to rely on his own statement that he had not remitted any amount by money order. However, since the version of the respondent regarding sending the said money orders by the petitioner was based on documentary evidence (Exh. A/1 to A/4) and the testimony of a Government Official (postman), the High Court came to the conclusion that the said version could not be doubted. Hence it was held that the relationship of landlord and tenant existed between the parties the petitioner admittedly not having paid any rent was manifestly a defaulter and he was ordered to, be ejected. Hence this petition for leave to appeal. Qazi Abdul Hayee, learned counsel for the petitioner, has again tried to challenge the authenticity of the documents Exhs. A/l to A/4 on the ground that they had not come from proper custody and, accordingly, were not admissible in evidence, that the marginal witnesses, who were alleged to have witnessed the return of these money orders were not produced and that in fact the money orders Exhs. A/1 to A/4 had been created merely to set up the plea of the existence of the relationship of landlord and tenant. These objections have been fully dealt with by the learned Judge in the High Court. As for the objection that the original money orders were not placed on the record, it was observed that there was a note appended to the statement of Ghulam Nabi, Postman P. W. 3, which showed that the original money orders were produced before the Rent Controller when his evidence was recorded but after the conclusion of his statement they were returned to Muhammad Siddiq, P. W. 3, a clerk of the Postal Department, who had brought the record from Lahore Office. Therefore, no exception could be taken to the admissibility of the Exh. A/1 to A/4. As for the plea that the marginal witnesses had not been produced, it was pointed out that F. W. 3 when cross‑examined had stated that he personally knew the respondent as he remained posted in the area concerned for 28 years. No suggestion was made to him that the money orders in question had been manoeurved and he had made incorrect reports on Exh. A/1 to A/4. It was also not suggested to him that he was in collusion with the respondent. Moreover, the attesting witnesses, if not examined by the respondent, could have been examined by the petitioner but he had failed to do so. In these circumstances, we are not persuaded to differ with the finding of the High Court that the petitioner had remitted rent for the premises in dispute to the respondent and that as such he was his tenant, within the meaning of clause (i) of section 2 of the Urban Rent Restriction Ordinance. This petition must fail and is accordingly dismissed hereby. However, the petitioner is allowed four months to vacate the premises in question, provided he continues to pay the monthly rent in accordance with the law. Petition dismissed.