2012 PLP 948 (MLD)

MUHAMMAD KHALID MEHMOOD KHAN, J.

Through this revision petition, the petitioners have assailed the judgment and decree dated 14-7-2009 and 1-10-2010 passed by learned Civil Court as well as learned appellate court respectively.

2. Briefly stated the facts of the case are that the respondents filed a suit for declaration to the effect hat he is the tenant of Municipal Corporation, Multan regarding land situated 'Chungi No.8 old Rasheedabad, Khanewal Road, Multan and notice No.273-LO/MC dated 7-12-1999 received on 8-12-1999 threatening the respondent to take forcible possession of the plot under his possession is against law and the petitioner be permanently restrained to take any seeps against him and to interfere in his peaceful physical possession. The respondents while filing the suit averred in his plaint that he in the year 1989 filed an application with the Municipal Corporation Multan for taking two rooms known as old `Chungi No.8', the corporation auctioned the said land according to procedure, the respondent was declared successful bidder. The Mayor of Corporation accepted the bid and submitted the same to house for approval. The House of Municipal approved the bid in his favour on monthly rent of Rs.545. On 17-2-1990 the respondent filed an application with the Municipal Corporation Multan permitting him to reconstruct the building, the Municipal Corporation evaluated the debris and auctioned the same. Municipal Corporation Multan entered into a lease agreement with him on 5-6-1995 and as per the agreement, the respondent was to pay rent of Rs.545 per month from 1st September, 1990. The Municipal Corporation Multan also permitted him to construct a new building from his own expenses and it was agreed between the parties while issuing permission to reconstruct new building that when the Municipal Corporation will eject him or will take possession of the shops, the corporation will pay him the market price of the building constructed on and without payment of amount, the corporation will not be entitled to repossess the building, the petitioners corporation will not interfere in his possession. The respondent has constructed a building on the plot 'old Chungi No.8' after investing huge amount. He is regularly paying amount of rent, he is not defaulter and is running Zubair Trust in the building and as such the notice issued by the petitioner No.3 is against law, facts, based on mala fide and is inoperative against the respondent's rights.

3. The petitioner filed written statement and controverted the respondent's assertions. It was specifically stated that no original record about the agreement of lease is available in the corporation record not the respondent is paying the rent. The status of respondent as a tenant is also denied. The agreement of lease was specifically denied. It was asserted with vehemence that respondent is in illegal possession of corporation land and as such notice of vacating the premises has rightly been issued.

4. Out of the divergent pleadings of the parties, learned trial court framed the following issues. "ISSUES (1) Whether the said notice dated 7-12-1999 issued by the defendants is illegal and void? OPP (2) Whether the plaintiff is illegal occupant and suit requires dismissal with special cost? OPP (3) Relief?"

5. Both the parties produced their respective evidence, both verbal as well as documentary.

6. The learned trial court after hearing the parties, vide judgment and decree, decreed the suit on 14-7-2009. The petitioners assailed the said judgment and decree through an appeal which too was dismissed vide judgment and decree dated 1-10-2010, hence the present revision petition.

7. Learned counsel for the petitioners submits that impugned judgment and decree is based on misreading and non-reading of record and as such is against law and facts. The respondent is a defaulter. He has not paid the rent as wrongly alleged, the receipt submitted by the respondents are fake and forged. He further added that petitioners have specifically asserted that alleged lease agreement is a fake and forged document and the learned courts below have failed to frame the issue on the said objection. He further adds that property in illegal possession of respondent is public property and is required to the petitioner for public purpose. The lower portion of the property is already in their possession and the respondent is retaining the upper portion illegally on the basis of forged agreement. He adds that alleged agreement of lease is hit by section 29 of the Contract Act. He submits that according to the bylaws of the petitioners, no property of Corporation can be lease out more than five years but surprisingly the alleged agreement to sell shows that it for an indefinite period. He has relied on Kaura and others v. Allah Ditta and others (2000 CLC 1018) and Wali MuhamMayord and another v. Dur MuhamMayord and 5 others (1998 SCMR 964). He lastly adds that the respondent is illegal occupant of Government land and as such no equitable relief can be given to him.

8. Learned counsel for the respondent support the impugned judgment and decree and submits that respondent has proved on record by submitting the agreement of lease, the proceedings of auction of land as well as dabrious and the receipts showing the payment of rent. He further submits that petitioners contention that agreement is fake and forged and is not available in record has been belied from the statement of P.W.1 who is a retired officer of Municipal Corporation. The said witness has categorically admitted that agreement of lease as well as the proceedings of Municipal Corporation house are genuine. The statement of said PW was not cross examined by the petitioners and as such the petitioners now can not challenge the authenticity of document Exh.P-1 to Exh.P-11. Learned counsel further submits that respondent has constructed the building by investing huge amounts after obtaining proper permission from the petitioners. Learned counsel further submits that petitioners have failed to bring on record any document showing that they have initiated any criminal proceedings against employees who are signatory of the Exh.P1 to Exh.P

11. He adds that petitioners have failed to place on record their statement of account showing that amount of rent was not deposited in their account. He lastly adds that during the pendency of the suit, the petitioner have illegally dispossess the respondent from the lower portion of the building and he is entitled of its restoration.

9. The argument of learned counsel Ch. Sagheer Ahmad Advocate is that the respondent is ready and willing to vacate the premises/ property strictly in terms of lease which provides that the petitioners are bound to pay the Market price of the building constructed by the respondent.

10. Heard. Record perused.

11. It is an admitted fact between the parties that ownership of property is with the petitioners. It is also admitted fact that the old structure of property was demolished and was sold by the petitioners. The controversy between the parties is the agreement of lease and the proceedings of house whereby the land in dispute as lease out to respondent. The main thrust of learned counsel for petitioners is that agreement of lease is a fake and forged document which is hit by section 29 of the Contract Act. Learned counsel argued with vehemence that proceedings regarding the auction of land for the purpose of lease are fake and is outcome of collusion between the respondent and the then Mayor of Municipal Corporation. He further admits that documents Exh.P1 to Exh.P11 were exhibited in the statement of P.W.1 and he was not cross examined. Now it has to been seen whether the document Exh.P-1 to Exh.P-11 are proved or not. It is an establish principal of law that the documents even if exhibited could not be deemed to be proved. For proving the document, the beneficiary of to same is bound to produce the evidence. P.W.1 no doubt is a retired employee of Municipal Corporation, Multan but the said witness was brought by the respondent at his own. He was not a summoned witness. The record was not in his possession. He was unable to confirm the authenticity of the document which have not been signed by him. He has just made the statement that an application was received from plaintiff for issuance of copies. The copying agency prepared the copies and after comparison from original record attested the same. The documents Exh.P1 to Exh.P11 are the true copies of original record. No doubt this P.W. was not cross examined by the petitioner but it is equally correct that a retired official of the petitioner corporation how can confirm that plaintiff filed an application for issuance of certified copies of record and the copying agency after comparison of original record issued the same. It is an admitted fact that at the time of issuance of the alleged certified copies by the Corporation he was not in the service of corporation nor he was posted in the copying agency. So how he can confirm or depose that attested copies are the copies of original record. If the respondent was confident that the original documents Exh.P1 to Exh.P11 are genuine one and are available in the petitioner record, it was very easy for him to summon the record from the corporation. If this record was available with the petitioner, they were bound to produce the same in court. The record of municipal corporation is permanent record and must be available with them. The petitioner claim is not that record is not available with them but they claim that record submitted by the respondent is not available in their record. Exh.P1 to Exh.P11 shows that these documents were attested copies and not the certified copies. The document shows that it was attested by Chief Corporation Officer Municipal Corporation, Multan on 3-7-1991. The said witness has deposed that a copy form was received in copying agency and copying agency issued the same. Admittedly he was not Incharge of copying agency, hence his statement can not be relied upon. Further the original document according to the respondent are in possession of petitioner. The petitioners are denying even execution and issuance of these documents and as such it was necessary for the respondent to first prove the fact that the petitioner corporation is withholding the documents and after proving the said fact, the attested copies could be relied upon. The other documents which are receipts of payment of rent are specifically denied by the petitioner. The DW-I when appeared in the witness box who is a land officer Tehsil Municipal Corporation, Shah-Rukn-Alam, Multan, he deposed in his examination-in-chief that suit property belongs to Municipal Corporation, Multan. After the dissolution of Municipal Corporation, Multan this property become the ownership of Tehsil Municipal Corporation, Shah-Rukn-Alam Town, Multan. No record regarding the alleged tenancy of respondent is available with his office. The record which was transferred to them by Municipal Corporation also does not find mentioned the document of auction as well as alleged agreement of lease. The Shah-Rukn-Alam Town, Multan was declared mother town for two years and as such all record of Municipal Corporation of Multan was transferred to them. He specifically deposed that respondent is illegal occupant. The lower portion of the property is in the petitioners' possession. The petitioner was asked to hand over the possession of upper portion, he took two to 4 hours time on the pretext that his mother is heart patient, he will shift her and subsequently he brought restraining order from the court. He further deposed that according to the property rules of Tehsil Municipal Corporation, 2003 no property can be leased out for more than five years, however it can be extended with the consent of parties. The respondent never applied to the petitioners for renewal of his tenancy and rightly so as he was not a regular tenant. In the upper portion of the property, the respondent is not in possession but his relative is occupying the same. He was cross examined at length and when the document Exh.P1 to Exh.P11 were shown to him, he specifically denied the "Rubber" stamps under the heading of attested copies. He denied each and every document shown to him. He even denied the signature of Mayor on the agreement. He has specifically deposed in cross-examination that on the basis of mother town, the record of Municipal Corporation Multan was taken over by the Shah-Rukn-Alam Town, Multan wherein he remain posted.

12. The respondent has examined P.W.2 who is again retired employee. He admitted the signature of Mayor on agreement of lease and one witness Bashir Ahmad Awan, Deputy Manager. He is claiming that the signature on the agreement was affixed in his presence but in cross examination when he was asked about the attestation of agreement, he admits as under:--

13. It is an admitted fact that two signatures are available on document Exh.P11 (agreement of lease) but no name or designation has been mentioned in the document. Even the name of Mayor is not mentioned. If we go through the contents of agreement of lease, it is to be seen that it was entered upon on 5-6-1990 but the stamp paper of this documents was purchased on 30-1-1990. Admittedly up to 30-1-1990 it was never settled between the parties that an agreement of lease is to be executed between them. The clauses agreed in this agreement are again created doubt about its genuineness which are read as under:-- "(2) The lease shall enter into the following covenants:-- (i) To pay all rates and taxes of the building. (ii) To keep the building in repairs and to white-wash at his own expenses. (iii) The lessee shall construct the building at his own expenses and the lesser will be liable to pay the market price of the building at the time of its vacation by the lessee. Unless and until the price of the building calculated at the time of its vacation is paid to the lessee, the lesser will not be entitled for the possession of the said shop. After payment, the lesser will be deemed to be the owner of the building and the lessee will have no interest in the said property."

14. The argument of learned counsel for the petitioner that no same lesser can sign this document for the simple reason that no expiry date in this agreement is mentioned and as such even if it is assumed that this document was executed by the then Mayor, even then it is against the rules of Punjab Local Government (Property) Rules, 2003.

15. Under Chapter-V Miscellaneous of Punjab Local Government (Property) Rules, 2003, it is specifically provided as under:-- "(B)

(b) the period of such lease shall be up to five years at a time; and (c) the legal occupant shall be allowed the right of first refusal of the highest bid. "

15. The rules are applicable on all the officers including Mayor and they are bound to the rules. How the Mayor can enter into agreement against the rules. In case, the Mayor was of the opinion that is in the interest of Municipal Corporation he should submit this document before the house of ultimate authority. It is not the case of respondent that Mayor got the approval of the agreement from the House. The case of respondent is that he participated in the auction proceedings which were approved by the House on 17-1-1990. The perusal of said document which is Exh.P5 shows that a proposal was submitted to the House of Corporation claiming that they advertised the same through proclamation in newspaper that two rooms of old 'Chungi No.8' was to be rented out. The date of auction was fixed as 7-12-1989. The auction was held in the presence of sub-committee. Auction held, five interested parties participated, out of six parties Hyder Zaman Qureshi has given the highest bid which was even more than the price fixed by the Corporation. The sub-committee has recommended to lease out the property to Hyder Zaman Qureshi and the Mayor has already approved the same. Hence, the same being produced before the house for approved. The exact wording of the Item is re-produced as under:--

16. This resolution is bearing No.8 and the date of presenting before the house is 18-1-1990 and under the word Mayor it is mentioned . The signature of Mayor is not available. The said document if was prepared must be available in minutes book of House of the Corporation and it was very easy for the respondent to summon the minute book of the corporation which is a permanent record and the petitioner could not withhold the same because in this minute book the number of other resolution will be available but the respondent has not summoned the proceedings of House and only relied on the attested copies which according to petitioner were ever issued by them.

17. As the petitioners have specifically denied in their written statement that no record is available with them regarding the alleged agreement and the approval of bid in favour of the respondent, it was obligatory upon the respondent if he was confident that petitioner withheld the relevant record he can summon the record of copying agency even through court after institution of suit because the copying agency is independent agency maintaining the record of issuance of copy of document of record of corporation to public at large. The copy form if submitted should have been available in their record.

18. The next argument of learned counsel for respondent is that respondent is ready and willing to vacate the premises subject to payment of price of the building constructed on the land. He referred the agreement Exh.P11 clause 2(iii) and submits that petitioners have to pay the market price of the building at the time of vacation by the lessee. He submits that the valuation has been conducted by the petitioners' officials and assessed the market value of Rs.7 million and the engineer concerned has evaluated the building as Rs.2.5 million and the respondent is willing to accept the said price and even if the said price is not acceptable to the petitioners, the respondent is willing to appoint another engineer for evaluation of the market price of the building. It is an admitted fact on record that respondent is in possession of upper portion of the building but the argument of learned counsel is that the market price means the goodwill as well as market price of material used in construction of building. It is nowhere mentioned in the alleged agreement that while assessing the market price of the building the goodwill be included therein. The market price of the building in terms of clause 2(iii) of agreement to my mind is the price of material used only and payment to labour and architects etc. As the goodwill is not the part of market price and such the petitioner will be entitled to the price of construction material and related items to the construction. However, the petitioner is not ready to accept the said offer, hence there is no need to discuss this issue any further.

19. Both the learned courts below have relied upon Exh.P1 to Ex.P14 and Ex.P15 to Ex.P24 on the assumption that petitioner has not cross-examined the witness who produced the same and on whose statement these documents were exhibited. The statement of P.W.1 in whose statement the Exh.P1 to Exh.P14 were placed on record is not supposed to be in possession of these documents. Exh.P1 to Exh.P11 were shown to P.W.1 who stated that these are the copies of the original record but he has not deposed how he came into possession of these documents. The respondent is supposed to be in possession of these documents but he has not placed on record the documents Exh.P1 to Exh.P

24. Further the documents Exh.P-12 to Exh.P28 were produced by counsel of respondent in evidence and as such these documents are not proved. The learned counsel for the petitioners objected the production of these documents but learned trial court has not decided this objection while passing the impugned judgment and decree and as such without deciding the objection of petitioners, the said documents could not be relied upon.

20. The respondent has filed a suit asserting that he is a lessee in terms of agreement Exh.P11 and the petitioners have denied the existence of said document and claimed that this is a fake and forged document and as such it was incumbent upon the respondent to prove these documents according to law. The documents were not proved and as such the judgments of both the courts below suffer from misreading and non-reading of record on this count as well. Both the learned courts below have fallen in error while relying upon the documents which have not proved.

21. The upshot of the above said discussion is this petition succeeds and consequent upon, the judgments of both the courts below are set aside and the respondent's suit is dismissed. H.B.T./A-155/L Revision allowed.