2002 PLP 2772 (YLR)

Mst. Tayyaba Begum's case 1994 SCMR 1913 ref. (i) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑ ‑‑‑‑S.13‑‑‑Qanun‑e‑Shahadat (10 of 1984), Preamble‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑ Relationship, of landlord and tenant denied ‑‑ Deciding question of title in ejectment petition‑‑‑Rent note and rent receipts were not proved by the landlord in terms of fundamental principles, of the Qanun‑e -Shahadat, 1984‑‑‑Rent 'Controller dismissed the petition while the Appellate Court allowed the same‑‑ Validity‑‑‑Where the Appellate Court reversed the findings of Rent Controller, in violation of law laid down by 'the superior Courts, the judgment of the Appellate Court was set aside and order of Rent Controller was restored‑‑‑High Court permitted the landlord to file civil suit before competent Court in terms of law laid down by Supreme Court in Rehmat Ullah's case reported as 1983 SCMR 1064, to prove disputed documents‑‑‑Constitutional petition was allowed accordingly. Province of Punjab v. Mufti Abdul Ghani PLD 1985 SC 1 and Rehmat Ullah v. Ali, Muhammad and another 1983 SCMR 1064 fol. Sadaqat Mehmood Butt for Petitioner. Nemo for Respondents. Date of hearing: 5th December, 2001. The brief fact out of which the present writ petition arises are that the respondent No.1. filed ejectment petition against the respondents before the Rent Controller, Gujrat on 10‑2‑1986. The petitioner tiled written statement, controverted the allegations levelled in the petition. Out of the pleadings of the parties, the learned Rent Controller framed the following issues:‑ (1) Whether relationship of landlord and tenant exists between the parties? OPP (2) Relief. The learned Rent Controller dismissed the ejectment petition vide order dated 3‑7‑1991 and held as under:‑ "There is no relationship of landlord and tenant between the parties." Respondent No. 1 being aggrieved filed appeal before the Additional District Judge, Gujrat who accepted the same vide judgment and decree dated 6‑4‑1994. The petitioner being aggrieved filed this writ petition.

2. The learned counsel of the petitioner submits that rent note Exh.A/1 was admitted in evidence subject to objection regarding its admissibility on a number of grounds mentioned in the statement of A.W.2 Muhammad Iqbal. He further submits that there is nothing in the receipts Exhs. A/2 to A‑5 to show that they do not relate to house in dispute, therefore, respondent No.1 failed to establish prima facie their ownership beyond reasonable doubt. He further submits that the First Appellate Court reversed the findings of the Rent Controller and decided the question of title in ejectment petition which is not in accordance with the law laid down by the superior Courts and in violation of the section 2(c) of the Punjab Rent Restriction Ordinance, 1959. In support of his contention, he relied upon Province of Punjab v. Mufti Abdul Ghani (PLD 1985 SC 1). He further submits that First Appellate Court reversed the findings by misreading and non‑reading of the record. He further submits that respondent No.1 did not mention that rent note was executed between the petitioner and respondent No.1 in his ejectment petition and respondent No. 1 produced the said rent dote in evidence over and above the pleadings which is not permissible in the eyes of law. He further submits that Mark‑A was also not mentioned in the ejectment petition.

3. Office sent notices to the parties on 21‑11‑2001 for 5‑12‑2001, despite notice, no body entered appearance on behalf of the respondent No.

1. It appears from the file that respondent No. 1 had already engaged Mian Muhammad Ashraf Tanvir, Advocate who had filed power of attorney, entered appearance on various dates but today he did not enter appearance despite repeated calls. I have no other alternative except to pass exparte order against him.

4. I have given my anxious consideration to the contention of the learned counsel of the petitioner and perused the record myself.

5. It is admitted fact that rent note Exh.A/1 was produced by respondent No.1 before the Rent Controller. The learned counsel of the petitioner raised various objections qua the production of rent note Exh. A/1 before the learned Rent Controller including that rent note‑is not mentioned by the respondent No.1 in his ejectment petition and did not file any application for amendment of the ejectment petition. The learned Rent Controller, in its order dated 3‑7‑1991 upheld the objection ‑of the petitioner whereas the same was overruled by the First Appellate Court in the impugned judgment in para.

10. It is pertinent to mention here that Mark‑A was not properly proved by the respondent No.1 in terms of the fundamental principles of Qanun‑e- Shahadat Order, 1984. It is also settled principle of law that documents which are not copies of the judicial record should not be received in evidence without proof of signatures and handwriting of persons alleged to have signed or written, however, even if such documents are brought on record and exhibited without objection. In arriving to this conclusion, I am fortified by the following judgments: Khan Muhammad Yusuf Khan Khatt4's case (PLD 1973 SC 160); Sikandar Hayat's case (PLD 1971 S.C 730) and Surendra Krishna Roy v. Mirza Muhammad Syed Ali (AIR 1936 Privy Council 15) It is also settled principle of law no reliance can be placed on a document which was not proved as per principle laid down by the superior Courts in the following judgments: Mst. Anwar Begum's case. (1991 MLD 1182) Muhammad Tariq's cases (1991 CLC 1697). It is also settled principle of law that document has to be proved by examining executant, author and witnesses. In case no such effort is made document can be refused to be exhibited as per principle laid down by the superior Courts in the following judgments:‑‑ Bata Pakistan Limited v. The Additional District Judge, Lahore and other (1990 ALD 457 (2) and Abdul Majid Mia v. Moulvi Nabiruddin Pramaniik. (PLD 1970 SC 465). It is pertinent to mention here that in the present case the respondent No.1 only filed an application for production of scriber of the document but the respondent No. 1 failed to produce other witnesses mentioned in the Exh.A/1 and Mark. A/1. It is settled, principle of law that warning technicalities fundamental principle of law will apply to the rent cases as per principle laid down in Qamar ud Din Jaffar Valiani v. Muhammad Yasin and another (1990 ALD 379). It is also settled principle of law that where a party objects to the admissibility and proof of document tiled by the other party, it would be the duty of the party producing such document to prove that document as provided by Qanun‑e‑Shahadat Order, 1984 as per principle laid down in Mohiuddin Ansari's case (1991 CLC 72). It is pertinent to mention here that no amount of evidence can be looked in plea which is not put forward in the pleadings. It is also settled proposition of law that pleadings in every case are required to be read and interpreted as a whole as the law laid down by the superior Court in the following judgments:‑‑ Kh. Muhammad Ismail v. Gani & Tayub Ltd (1990 MLD 1177), Muhammad Amin Khan's case (1990 ALD 239 (1), Manzoor Khan Ghoury'g case (1990 ALD 558(1) and Government of West Pakistan v. Haji Muhammad (PLD 1976 SC 469). It is proper to mention here that rules of pleadings though do not in stricto senso apply for the rent matters yet if any particular plea which goes to the root of the matter and is a main defence, party should plead mainly for the reason that the other side may not be taken by surprise and he may have the opportunity to meet the plea so raised as per principle laid down by the Honourable Supreme Court in Mst. Tayyaba Begum's case (1994 SCMR 1913). The First Appellate Court reversed the findings of the Rent Controller in violation of the law laid down by the superior Court in the following, judgments:‑ Province of Punjab through Education Secretary and another v. Mufti Abdul Ghani (PLD 1985 SC 1) and Rehmat Ullah v. Ali Muhammad and another (1983 SCMR 1064). In view of what has been discussed above, the impugned judgment of the First Appellate Court is set aside and order of the Rent Controller, is upheld with the permission to respondent No. 1 to file a Civil suit before the competent Court in terms of law laid down by the Honourable Supreme Court in Rehmat Ullah's case (supra). The respondent No. 1 failed to prove Exh.A/1 Rent note and Mark- A in terms of the law laid down by the superior Courts in the afore‑said judgments, therefore, the judgment, of the First Appellate Court is not sustainable in the eyes of law. In view of what has been discussed above, the writ petition is accepted with the afore‑said observation with no order as to costs. Q.M.H./M.A.K./A‑379/L Petition dismissed.