2000 PLP 1951 (CLC)

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0. XLI, R. 27‑‑‑Production of additional evidence in Appellate Court‑‑ Permissibility‑‑‑Additional evidence could only be permitted if Court needed same for the purpose of decision‑‑‑Application in that regard would be considered when appeal itself was heard and Court applied its mind to the facts of the case. [p. 1954] C Ch. Muhammad Luqman for Petitioner. Muhammad Saleem Sehgal for Respondent No.3. Dates of hearing: 17th December, 1999 and 4th April, 2000. Respondent No.3 brought an eviction application under section 13' of the Punjab Urban Rent Restriction Ordinance, 1959 for eviction of the petitioner from a piece of land measuring about four Marlas situated in Khasra No.7340 within the Municipal limits of Municipal Committee, Kasur on the ground of default and personal need. Respondents Nos.4 and 5 were impleaded as sub‑tenants but it seems they never appeared in the proceedings in the two Courts below and for all purposes are irrelevant to this petition in any case. They have been served through affixation and the petition has been heard in their absence as they did not enter appearance. The petitioner contested the eviction application on the ground that he was in possession of land belonging to Municipal Committee which was located in Khasra No.7341. Petitioner also claimed that if at all he was liable for eviction is entitled to compensation of about Rs.1,00,000 as he has built a shop over the disputed plot. Since the relationship was not admitted, the same issue was framed and parties led their respective evidence to it. Vide order, dated 28‑2‑1996 learned Rent Controller found the issue in favour of the landlord and directed to hand over the vacant possession of the disputed land within one month from the date of the order. The petitioner failed in appeal on 23‑6‑1998.

2. Initially, the petitioner filed Second Appeal from Order No. 113 of. 1998 to question the two orders of eviction but vide order dated 13‑8‑1998 passed in the appeal, the petitioner was allowed to withdraw the appeal and to file a writ petition to question the orders of eviction. Hence this writ petition.

3. Learned counsel for respondent No.3 has objected to the maintainability of the writ petition on the ground that only an appeal under section 15(6) of the Rent Restriction Ordinance, 1959 was competent. This objection has to be rejected for two reasons. Landlord is seeking eviction from a plot and no second appeal is competent in such cases. Secondly, as noted above, this Court permitted withdrawal with permission to file writ petition on 13‑8‑1998 and that order remained final.

4. In support of the petition, learned counsel for the petitioner has reviewed evidence to submit that findings of the two Courts are not called for and that the relationship of landlord and tenant between the parties does not exist. In this connection, he has submitted that the two Courts below could not have placed reliance on demarcation as the same was conducted behind the back of the petitioner. By relying on Haji Muhammad Ramzan v. Mian Jamil Shah PLD 1967 Pesh. 380 he has argued that entries in the Excise Record could not have been relied upon. He further stated that petitioner's application under Order 41, Rule 27, C.P.C. for additional evidence ought to have been dealt with separately and while deciding the same in the appellate. judgment, the learned Additional District Judge has acted illegally. For this' purpose, he has relied on Muhammad Umer v. Muhammad Qasim and another 1991 SCMR 1232.

5. In reply, while rebutting above contentions, learned counsel for respondent No.3 has argued that question of fact concurrently decided, cannot be interfered with in exercise of writ jurisdiction, whose scope is limited to examining jurisdictional errors and excesses. He has referred to Abdul Rehman Bajwa v. Sultan and 9 others PLD 1961 SC 522, Mst. Imtiaz Bibi and another v. Member, Board of Revenue and others 1983 CLC 2542, Rehmatullah v. Ali Muhammad and another 1983 SCMR 1064 and Mir Salah‑ud‑Din v. Qazi Zaheer‑ud‑Din PLD 1988 SC 221.

6. The findings in this case of existence of relationship is concurrent. Even if the two judgments were to be examined in second appeal, the scope for interference was limited to legal error. Findings on fact recorded by the, first Appellate Court is normally not interfered with in the second appeal even if it is erroneous. The contention of the learned counsel for respondent No.3 is correct that scope of interference in such cases in writ jurisdiction is limited. The submission of the learned counsel for the petitioner on fads will be examined in the light of the above principle.

7. The Appellate Court has itself in para. 5 of the judgment considered the demarcation report as irrelevant and it has not relied upon the same for arriving at his findings. Similarly, it has held the lease deed Exh.A/3 executed by landlord/respondent No.3 in favour of one Pir Khalil Ahmad as irrelevant. There is no force in the submission of the learned counsel for the petitioner that the two Courts should not have relied upon the demarcation report as the demarcation was conducted behind the back of the petitioner.

8. The other contention that application under Order 41, Rule 27, C.P.C. ought to have been separately decided, is equally without force. It is well‑settled that additional evidence can only be permitted if the Court needs it for the purpose of the decision. Normally this application is considered when the appeal itself is heard and the Court applies its mind to the facts of the case. In this case, the application has been dealt with in para.4 of the appellate judgment. In other words, it has been separately dealt with, although within the appellate judgment. In my view no legal error has been committed by following this course. I may add that the learned Appellate Court has given good reasons for rejecting the application and in any case learned counsel for the petitioner has not challenged the rejection on merits. Similarly, entries in the Excise Record are a piece of relevant evidence which can be considered alongwith the other evidence on record. Entries alone may not be decisive but this piece of evidence cannot be 'ruled out. The facts of the Peshawar's .case relied upon by learned counsel for the petitioner are different and that case proceeds on its own facts.

9. Keeping in view the scope of writ petition, no case for interference has been made out. At best, it may be a case where a different finding is possible but that alone is not sufficient to hold that the impugned order is without lawful authority. There is no force in this writ petition which is dismissed leaving the parties to bear their own costs. H.B.T./S‑34/L Petition dismissed.