1983 PLP 2061 (CLC)

S. 15 and Evidence Act (I of 1872), S. 73-Eviction proceedings

Original agreement to sell property in dispute purported to have been arrived at between parties not produced and contention of tenant regarding robbing of documents found suspicious-High Court examining document under S. 73, Evidence Act, 1872 and satisfied about difference in signature of landlord on docu ment-Eviction order, upheld, in circumstances. Akhtar Ali Mahmood for Appellant. , This appeal has been filed by Assadullah Khan, to challenge an order of XIth Senior Civil Judge/Rent Controller, Karachi, dated 31st July, 1982 in Rent Case No. 29x6/81 instituted by Abdul Karim, the landlord for eviction of the appellant. By the impugned order the appellant has been directed to be evicted. I have heard Mr. Akhtar Ali Mabmood at length, and have also perused the record. I have even taken into consideration such documents, as have been placed on record before me. On consideration of all that material, i am of the view that this appeal does not merit to be admitted, and since I propose to dismiss this appeal in limine, I have not thought it proper to issue notice to the respondent, because that would only mean un necessary trouble and expense for him. The reasons for dismissing this appeal presently follow :- The brief facts of the case are that the respondent was the owner of a building on Plot No. 143/15 in Federal `B' Area, Karachi. The case of the respondent is that, the appellant had been paying a monthly rent of Rs. 1,

500. It was alleged, that the appellant was a persistent and wilful defaulter, who had not paid rent for a period of 36 months commencing July, 1978 and ending June; 1981. The application under -section 15 of the Sind Rented Premises Ordinance was filed on 1st July, 1981. No written statement was filed, but some preliminary legal objections were submitted, by 'the appellant, before the learned Controller on 2nd November, 1981. Such objections were, that the Controller had no jurisdiction, as relationship of landlord and tenant did not exist between the parties. It was further averred that the respondent had agreed to sell the premises in question to the present appellant, by a written agreement executed on 7th January, 1976 and possession of the premises had been delivered to the appellant, in pursuance of such agreement. It was not disclosed as to what was the agreed price, how much was paid as earnest money and when was the agreement to be concluded. It was, however, stated in the preliminary objections, that the appellant was ready and willing to make payment of the balance consideration, and even such amount as according to the appellant was payable, was not specified. A copy of the agreement was not filed alongwith these objections, but it seems that the appellant had filed some other application, presumably under section 34 of the Arbitration Act, and photostat copy of such agreement has been placed on the file. Not less than two opportunities had been given to the appellant to file written statement, but the same was not filed. Ultimately, by an order dated 8th February, 1982, the learned Controller closed the defence of the appellant, on the ground that in spite of opportunities to file written statement, the appellant, had failed to do so, and in the meantime more than 180 days had elapsed for filing of the written statement. The only contention, that has been raised before me, is on the basis of the alleged agreement between the parties. The original agreement ha not been produced and in such regard, the case of the appellant is, that on 2nd June, 1981 one Abdul Rahim, in company of some other person came to the Estate Agency Office of the appellant, and as had about the papers of respondent Abdul Karim. When such papers were being shown to them, they attempted to rob the appellant of such papers and after manhandling him, the papers were destroyed. It seems a Non-Cog. report was lodged on 2nd June, 1981 at 9-20 p. m. but no case was registered by police, until 15th June, 1981. I am informed, that the case has not yet been sent up for trial. I asked the learned counsel if, any direct complaint has been filed, and he stated that no such complaint ha been filed. What is more, that prima facie, the report appears to be suspicious. It is stated at the bar, and it was stated before the learned Judges who heard Constitution Petition No. 458/82 that the appellant was running an Estate Agency. It is very difficult to believe that a person who is blind, can run an Estate Agency, and suspicion in regard to this report is also strengthened by the facts that the report does not at all indicate that any other person was working at the Estate Agency, which was being allegedly run by the appellant. Although, the original documents have not been placed on record, some photostats have been placed on record. On a bare comparison of the signature of Abdul Karim on the application under section 15 of the Sind Rented Premises Ordinance, and the alleged agreement, disparity and difference is apparent. I have on exercise o powers under section 73 of the Evidence Act compared these documents and in my view these documents, do not bear the signature of one and the same person. I asked the learned Advocate, if he had applied to the Court for an order to have the document examined by an Expert, but the learned counsel stated that no such application has been made. What is more, that the appellant has not filed any suit for specific performance of the Contract even though, he knows that the same is being demurred. In any case such a suit has by now become barred by time. In my view, the order passed by the learned Controller, was fully correct and justified. It does not call for any interference and I dismiss this appeal in limine. M. Y. M. Appeal dismissed.