1989 PLP 184 (CLC)

The learned Rent Controller answered the above first and second questions in the affirmative and, consequently, allowed the application, as stated above. Hence this appeal. I have heard Mr. Muhammad Sharif, learned counsel for the appellant and Mr. Muniruddin Alvi, learned counsel for the respondent and have with their assistance, perused the evidence adduced by the parties as well as the impugned order of the learned Rent Controller. The learned counsel for the appellant pressed the appeal only on the ground of default in payment of rent. He did not agitate against the finding of the learned Rent Controller on the point of maintainability of the ejectment application. Before recording the contentions of the learned counsel for the parties, I deem it necessary to make a mention of one aspect of the case which came on record after filing of the written statement by the appellant. The respondent filed an application under section 16(1) of Ordinance on 6th October, 1987. The appellant filed his objections to the said application on 5‑11‑1987 and alongwith the objections he also filed a copy of "Tenancy Agreement by way of Renewal" dated 2nd July, 1980, whereunder he claimed to have paid/deposited a further sum of Rs.24,000 over and above the security deposit of Rs.24,000 paid to the respondent pursuant to the first agreement to tenancy dated 15th June, 1979 with a stipulation that the original deposit of Rs.24,000 shall remain as security deposit and the further sum of Rs.24,000 then deposited shall be adjusted in rent Rs.2,000 per month. Alongwith the objections two receipts of Rs.4,000 each dated 12‑10‑1980 and 10‑11‑1980 were filed in respect of friendly loan taken by the respondent from the appellant which was to be adjusted towards the rent of the demised premises. The respondent filed her own affidavit in reply to the above objections of the appellant, denying her signatures on the aforesaid two receipts of Rs.4,000 each as well as having executed the tenancy agreement dated 2nd July, 1980. She deposed that she had neither executed the said agreement nor received the further sum of Rs.24,000 from the appellant as mentioned in the said agreement. The learned Rent Controller in his impugned order has held the aforesaid three documents, namely, two receipts of Rs.4,000 each (Exs.4‑D and 4‑E) and the agreement dated 2nd July, 1980 (Ex.4‑C) as false and forged. Mr. Muhammad Sharif, learned counsel appearing for the appellant made the following submissions:‑ (i) That consequent to the failure of the respondent to appear personally to deny her signatures on the agreement of lease dated 2nd July, 1980 (Ex.4‑C) as well as on the receipt of Rs.4,000 each (Ex. 4‑D and Ex. 4‑E), the learned Rent Controller should have held the said documents to be genuine when the appellant and the attesting witnesses of the said documents had proved their execution by the respondent. (ii) That the conclusion drawn by the learned Rent .Controller upon comparison of the respondent's signatures on the disputed documents with her admitted signatures behind the back of the appellant was not proper since it was not a matter of his objective satisfaction. (iii) That the learned Rent Controller has approached the issue in wrong manner in holding the disputed documents to be not genuine first and then disbelieving the attesting witnesses on this basis. This presumption coloured the latter decision of the learned Rent Controller unconsciously. (iv) That the learned Rent Controller has adopted a prejudicial approach, as is evident from a perusal of his judgment, by starting the discussion with a finding without first referring to the evidence of the appellant's witnesses. (v) That the learned Rent Controller was made no reference to the evidence of the respondent. (vi) That no reasons whatsoever to discard or accept the evidence of the witnesses have been given by the learned Rent Controller in his impugned order. The order is thus bad in law. In support of his above contentions, Mr. Muhammad Sharif, learned counsel for the appellant has cited several authorities reported in (i) 1985 C L C 373; (u) 1986 C L C 456, (iii) P L D 1968 Kar. 263; (iv) A I R 1928 PC 277; (v) A I R 1927 All. 411, (vi) P L D 1963 Lah.20; (vii) A I R 1927 PC 30; .and (viii) A I R 1934 All.

63. These will be appropriately considered, later on, if necessary. Mr. Muhammad Munir Alvi, learned counsel for the respondent, on his turn, supported the impugned order. He submitted that the agreement of lease dated 19‑6‑1979 (Ex.4‑B) was for a period of eleven months from 15th June, 1979, which expired in May, 1980, as is mentioned in para. 3 of the ejectment application. In para 5 of his affidavit‑in‑evidence, the attorney of the respondent has specifically deposed that the rent for the period from February, 1980 to June, 1981, amounting to Rs.36,000 was in arrears. The correctness of this statement of fact, according to the learned counsel, was not challenged during his cross‑examination. Hence this unrebutted statement, the learned counsel so urged, was sufficient to decide the issue of default against the appellant. He also submitted that the original agreement of lease allegedly executed on 2nd July, 1980 has not been produced. The learned counsel also supported the impugned order on all the other grounds as are mentioned therein. He has also drawn my attention to the authorities reported in (i) 1986 C L C 328; (ii) 1982 C L C 1592 and also at page 1128, (iii) 1985 S C M R 214 and (iv) P L D 1981 SC 56. 1 have given my anxious thought to the submission made by the learned counsel for the parties and have also very carefully perused the record of the trial Court as well as the impugned order. In the ejectment application, the respondent had specifically pleaded that the lease agreement executed on 19th June, 1979, was for eleven months which expired in May, 1980. After expiry of the agreement the appellant was repeatedly asked to vacate the demised premises, as he was not regular in payment of monthly rent, and that due to non‑payment of monthly rent a sum of Rs.36,000 @ Rs.2,000 per month had become due against him w.e.f. 15th January 1980 to June, 1981. In his written statement the appellant admitted the execution of the above‑noted agreement but denied that it was for eleven months. He also asserted that he was regular in payment of rent and there was no default committed. Additional pleas were taken in the written statement with regard to non‑maintainability of the application and mala fide of the respondent in making the said application upon appellant's refusal to enhance the rent. No plea was taken either about the execution of the subsequent "Tenancy Agreement by way of Renewal" dated 2nd July, 1980, or of the adjustment of the rent out of Rs.24,000 above‑noted agreement. It is because of this fact, that the learned Rent Controller formulated only three points for determination on the basis of the pleadings of the parties. The "Tenancy Agreement by way of Renewal" dated 2nd July, 1980, was for the first time, asserted by the appellant while filing objections to the application under section 16 of the Ordinance. The respondent vide her affidavit dated 22nd December, 1981 denied the execution of the said agreement dated 2nd July, 1980 as well as the two receipts dated 12‑10‑1980 and 10‑11‑1980. The appellant filed no counter‑affidavit to the above affidavit of the respondent. In this view of the matter non‑appearance of the respondent personally to deny her signatures on the above‑noted agreement dated 2nd July, 1980, was of no consequence. The first part of the first above‑noted contention of the learned counsel for the appellant is thus held to be devoid of merits. With regard to the other aspect of the matter, namely, that the learned Rent Controller should have held the said documents viz. the agreement dated 2nd July, 1980 (Ex.4‑C) and two above‑noted receipts of Rs.4,000 each (Ex.4‑D) and (Ex.4‑E) as genuine, I would first refer to that portion of the impugned judgment wherein this aspect of the case has been discussed. It is as follows:‑ "There is no mention of the two receipts Exs.4‑D and 4‑E in the written statement. These three documents were even not relied upon in the written statement. For the first time mentioned of second agreement of tenancy was made at the time of filing of objections to application under section 16(1) of the Sind Rented Premises Ordinance, 1979, but strangely the two receipts Ex.4‑D and Ex.4‑E were also not mentioned in these objections. It means these two receipts are also manipulated even after the filing of the objections against application 16(1). It was a major fact and should have been specifically pleaded in the written statement. Failure to make mention of these documents in the written statement will certainly make the case of the opponent highly doubtful." The learned (tent Controller has then extensively dealt with the other circumstances, including the evidence of the attesting witnesses and upon a thorough examination of the nature of the evidence brought on record, he has held that these documents are forged. He has specifically referred the deposition of attesting B witnesses of the disputed documents and has pinpointed, and in my opinion rights too, the circumstances, which go to establish the falsity and untruthfulness of the deposition of these two witnesses. The contentions of the learned counsel for the appellant to the effect that in the presence of the statement of the appellant and attesting witnesses the said documents should have been held to be genuine or having been duly executed by the respondent is obviously fallacious. It also makes the second above‑noted contention of the learned counsel for the appellant to be unsustainable. It is not only upon the comparison of the respondent's signatures on the disputed documents with her admitted signatures that the learned Rent Controller has disbelieved the two attesting witnesses but he has discussed and thoroughly examined the veracity of the statements of the attesting witnesses as well as that of the appellant. The mere fact that while writing the judgment, the learned Rent Controller, after having taken note of all the relevant circumstances, reached the conclusion that the two eye‑witnesses are untrustworthy and that appellant's evidence with regard to the execution of the disputed documents was clearly unbelievable, if firstly referred to the comparison of the respondent's signatures on the disputed documents with those of her admitted signatures on other documents was of no significance. I, therefore, hold that the third above‑noted contention of the learned counsel isle also without merits. It may also in the passing he observed that it is too well‑known a fact to be mentioned that before proceeding to write a judgment a Judge usually takes notes of the entire evidence and other material prevalent on record and upon appreciation thereof he takes decisions on the points or issues formulated by him. The manner of writing the judgment adopted in the instant case by the learned Rent Controller so as to first refer to his opinion in respect of the comparison of the disputed signatures of the respondent with her admitted signatures and then to deal with the trustworthiness or otherwise of the witnesses is of no significance. After going through the entire judgment of the Rent Controller, I find myself unable to agree with the learned counsel for the appellant that he had adopted a prejudicial approach to the case. The contentions of the learned counsel for the appellant that no reasons have been given for discarding or accepting the evidence of the witnesses by the learned Rent Controller is equally without substance. I have already referred the relevant portion of the impugned judgment wherein the learned Rent Controller has elaborately discussed and with cogent reasons held the evidence led on behalf of the appellant to be untrustworthy. Even otherwise, upon comparison of the admitted signatures of the respondent with the disputed signatures, I do not find any hesitation to endorse the opinion of the learned Rent Controller in that behalf. Having disposed of the case on the factual aspect of the matter, I do not consider it worthwhile to refer to the above‑noted various authorities cited by the learned counsel for the appellant inasmuch as I am of the opinion that they are distinguishable on their on own facts and have no direct bearing to the facts of the case in hand. For the foregoing reasons, I hold that the appellant has no cause of grievance and that the appeal is without substance. It is accordingly dismissed. The parties are, however, left to bear their own costs. Nevertheless, I would allow the appellant three months' time to vacate the demised premises and hand over its vacant and peaceful possession to the respondent subject to the‑ appellant's depositing the agreed monthly rent of Rs.2,000 in Court in the terms of order dated 5‑1‑1982, passed by the learned Rent Controller on the respondent's application under section 16(1) of the Ordinance. H.B.T./Z‑67/K Appeal dismissed.