2006 PLP 946 (SCMR)

MUNIR A. SHEIKH, J.

This petition is directed against the judgment, dated 7-3-2003 of the Lahore High Court, Lahore whereby Constitutional petition filed by the petitioner against the judgment of the learned Additional District Judge, Faisalabad of acceptance of appeal of the respondents against the order of the Rent Controller of dismissal of their ejectment application has been dismissed.

2. The facts of the case are that the premises in dispute are admittedly owned by the respondents. The respondents filed an ejectment petition seeking eviction of the petitioner there from on the ground that he (petitioner) was tenant and had failed to pay the rent. It was contested by the petitioner and an objection was raised that relationship of landlord and tenant did not exist between the parties. It was the case of the petitioner that possession of the premises was delivered to him under an oral agreement of sale between the parties, according to which an amount of Rs.1,50,000.00 was paid as earnest money and the remaining amount of consideration of Rs. 10,50,000.00 was to be paid at the time of registration of sale-deed. It was therefore, pleaded that though the petitioner was inducted in the premises by the respondents-owners but it was in part performance of the said oral agreement of sale and not as tenant. The parties led evidence both documentary and oral. The learned Rent Controller through order, dated 3-1-1993 dismissed the ejectment petition on the ground that the respondents had failed to prove execution of rent deed as such relationship of landlord and tenant between the parties had not been established and that a suit for specific performance of the said oral agreement of sale was pending. The respondents filed an appeal before the learned Additional District Judge, Faisalabad, against this order which was accepted through judgment, dated 10-3-1997. After reappraisal of evidence, the Court did not agree with the findings of the learned Rent Controller based on inferences drawn by it from the oral and documentary evidence of the parties as to execution of rent deed, dated 8-9-1982 (Exh.A.1) and evidence of A.W.1 petition-writer and A.W.6, Advocate and held that the execution of the said rent deed by the petitioner stood proved therefore, it was held that the respondents had succeeded in establishing existence of relationship of landlord and tenant between the parties. The petitioner challenged the said order through Constitutional petition before the High Court which has been dismissed through the impugned judgment, dated 7-3-2003 against which leave is sought.

3. Mr. A. K. Dogar, learned counsel for the petitioner has argued the case at length who also took us through the documentary evidence produced by the parties in this case, in his endeavour to maintain that the judgment/order of the Rent Controller was based on cogent reasons and correct inferences drawn from the evidence which were interfered with by the first Appellate Court in a manner that it was a case of not only misreading of evidence but ignoring material piece of evidence on the record.

4. Learned counsel for the petitioner also attempted to argue on the basis of rule laid down in the case of Rehmatullah v. Ali Muhammad and another 1981 SCMR 1064 that in view of civil suit pending before the civil Court for specific performance of oral agreement of sale of the property in dispute, the proceedings in the ejectment petition should have either been, stayed or the parties directed to get dispute as to title settled by the civil Court. He also suggested during the arguments that this Court in view of the said pending suit of specific performance of agreement may keep this petition pending and postpone the hearing keeping in view the spirit of rule laid down in the case of Rehmatullah (supra).

5. We may deal with the latter contention ,first. In the present case, there was neither any dispute nor the same could be raised about the ownership of the respondents of the property in dispute, for it is petitioner's own case that they (respondents) had allegedly agreed to sell the same to him therefore, the question of title is not disputed in the present case which could be referred to the civil Court for resolution.

6. The respondents were required to prove in the ejectment petition that they were entitled to receive rent of the premises by proving that the petitioner was inducted in the premises as tenant.

7. There is no denial of the fact that as owner of the property, the respondents were entitled to receive the rent. The only fact which the respondents were obliged to prove to the satisfaction of the Court was that the petitioner was occupying the property as their tenant. The respondents produced rent note Exh.A.1 which according to them was executed by the petitioner when he was inducted in the premises by examining the petition writer as A.W. 1 and an Advocate who drafted the same as A.W.6. A.W.1 admitted that the petitioner was known to him earlier because he used to get documents scribed by him as petition writer. A.W.6 was the counsel of the respondents who was consulted in the matter of drafting of the rent deed. The first Appellate Court after reappraisal of evidence in detail did not agree with the inferences drawn by the Rent Controller and held that execution of this document was sufficiently proved which established existence of relationship oflandlord and tenant between the parties. Learned counsel for the petitioner has not been able to persuade us that these findings by the first Appellate Court were based either on misreading or non-consideration of any material piece of evidence. The first Appellate Court was the final Court on facts and law. According to the principles laid down by the superior Courts, findings both on facts and law recorded by the Rent Controller were open to scrutiny by the Appellate Court which on reappraisal of evidence could come to a different conclusion and substitute its own findings if the findings recorded by the Rent Controller were found to be not based on correct appraisal of evidence. In other words, the findings recorded by the Rent Controller were subject to correction by the first Appellate Court in appeal.

8. We have examined the judgment of the learned Additional District Judge and find that the material available on the record was considered by him carefully and elaborately and on cogent reasons, conclusions arrived at by the Rent Controller were found to be wrong and rightly set aside. Learned counsel for the petitioner has not been able to satisfy us that the said Court while reversing the findings of the Rent Controller misread or kept out of consideration any material piece of evidence.

9. Learned counsel for the petitioner submitted that evidence of A.W.6 should not have been accepted as he was an interested witness. He argued that he was the counsel of the respondent in the same case, therefore, was not a competent witness.

10. We are afraid, the argument in the facts and circumstances of this case has no force. In the matter of drafting a document, party has a right to consult his counsel and if he had been consulted and requested to draft the transaction i.e. the rent note in this case, it could not be argued that he was not a competent witness. A.W.6 had no personal interest in the subject-matter of rent deed i.e., the property, therefore, as a person who was consulted as a counsel by a party in the matter, he was a competent witness.

11. Learned counsel for the petitioner then argued that Exh.R. 1 is a document which was admitted to have been written by the respondent or on his instructions which shows that payment of certain amounts before September, 1984 had been admitted, therefore, the respondent was belied in his stand taken in the ejectment petition that rent had been paid up to September, 1982 and no payment thereafter was made, therefore, this document is sufficient to establish the case of the petitioner prima facie that the amounts mentioned therein were paid as alleged by the petitioner on account of sale consideration.

12. The respondent when cross examined in respect of this document clearly stated that in the document, payment up to September, 1982 of the rent was admitted and it was stated that after September, 1982, no payment was made and the figure "1982" was changed to "1984" by interpolation by the petitioner. The first Appellate Court on perusal of the document came to the conclusion that the said figure was interpolated and was made from "1982" to "1984". We have also perused the said document and find that the said findings are correct, therefore, argument has no force.

13. The learned Judge in Chambers of the High Court in the impugned judgment has held. elaborate scrutiny of the contentions raised before him and the material placed on the record and recorded finding that the judgment of the first Appellate Court challenged in the Constitutional petition did not suffer from any legal infirmity, as such, no interference was made.

14. The judgments of the two immediate Courts below brought under challenge in this petition did not suffer from any legal infirmity, therefore, we find no force in this petition which is accordingly dismissed and leave refused.

15. The petitioner is, however, granted two months time to vacate the premises. S.A.K./M-914/SC?????????????????????????????????????????????????????????????????????????????? Leave refused.