1988 PLP 1077 (MLD)

This appeal is directed against the order passed by the Senior Civil Judge No.IV, South, Karachi. dated 26‑10‑1985, whereby the application filed by the appellant under section 22 of Sind Rented Premises Ordinance, 1979, was dismissed.

2. The relevant facts leading to this appeal are that the respondents Nos.1 and 2 had filed an application for ejectment against one M.A. Malik, real brother of the appellant on 27‑5‑1980 in respect of a portion of Survey No.149, measuring 772 square yards, wherein it was mentioned that he was running business of photostat and had also raised temporary construction on a small portion of the said plot while the remaining part was lying vacant., in his possession. The ejectment had been sought on the ground of constructing a building. Written statement was filed by respondent No.3 and issues were framed and evidence was recorded. On 3‑4‑1984, ejectment of respondent No.3 was allowed. On 17‑9‑1984 F.RA. No.485/84 filed by respondent No.3 was dismissed in limine by the High Court. On 10‑7‑1984 the respondents Nos.1 and 2 filed execution application, which was fixed on 18‑7‑1984. On 10‑11‑1984 the appellant sent a money‑order of Rs.400 to Suleman as rent of the premises. The same was refused. On 23‑10‑1984 writ of possession was issued. On 30‑10‑1984 the appellant filed objections under section 22 of Sind Rented Premises Ordinance, 1979, and claimed to be a tenant of respondents Nos.1 and 2 in respect of a portion of the said plot. Evidence of parties was recorded and the objections were duly dismissed by a detailed order.

3. Mr. S. Shoaib A. Bukhari, learned counsel for appellant, had argued that in Rent Case No‑1641/78 filed by respondents Nos.1 and 2 against Al‑Karim Printers, respondent Suleman to his cross‑examination had admitted the appellant to be the tenant of garage separate from MA. Malik, who was treated as tenant of another shop and even photographs of the two shops had been filed. He further urged that the appellant has electricity bills in his own name in respect of the same premises, and that there appeared no connection between MA. Malik and the present applicant, although they are brothers inter se. It was further urged that the statement of Muhammad Hussain that he was the tenant in his own right had not been sufficiently controverted. Further it was urged that Abdul Latif had also proved that Muhammad Hussain was tenant. Abdur Razzaq witness, had also given his evidence in respect of the same, who was also` supported by Nazir Ahmed, who was an auto mechanic with the appellant.

4. Mr. Raja Haq Nawaz, learned counsel for respondents Nos.1 and 2, on the other hand, had urged that the statement of Suleman in Rent Case No.1Cri1/78 could not be relied upon by the appellant, as the same was given in a case between different parties and the factum of the appellant being tenant was not in issue in that case. He relied upon Article 47 of "Qanun‑e‑Shahadat" in this respect. He further urged that Suleman in his statement before the Rent Controller had clearly denied that he had made any admission in his cross- examination in Rent Case No.1641/78'that the appellant was his tenant. He urged that the appellant was trying to take undue advantage of the factum of his being brother of respondent No.3. The main argument of Mr. Raja Haq Nawaz was that the appellant had never been recognized as a tenant by the respondents and the appellant had no receipt of rent with him to show that he was tenant in the premises. Reliance had been placed upon 1982.S C M R 90(95), where it was held that in a case where tenant was sole respondent in ejectment proceedings before the Rent Controller and had contested the proceedings for years in different forums he could not be permitted to join other objectors or to make a common cause with them so as to raise question which could have been raised before the Rent Controller. It was further observed in that case that an adult member of family coming forward at the stage of execution of ejectment order having no conflicting interest with others and all of them were living in the same house in the one room, such claim was incompetent and the objection petition in such circumstances was held to be an objection filed by the judgment‑debtor on his behalf by others.

5. It appears to me that the order passed by the Rent Controller dismissing the objections is basically correct order. The appellant had himself filed an order of the Magistrate passed in his favour in 1965 in a different proceeding between the previous landlord and the present appellant, where it had been ordered that Abdul Sattar should not disturb the possession of Choudhry Muhammad Hussain, as he was entitled to the possession of the disputed premises until evicted therefrom. The said order was relied upon by the appellant for the purpose of showing that he was in exclusive possession of the premises in dispute, but in that case the appellant had relied upon the rent receipts issued in his brother's name (M. A Malik) by the landlord. This position in respect of the said order was put to the appellant before the Rent Controller in his cross -examination and he admitted that in that criminal case against Abdul Sattar he fled rent receipts of his brother MA. Malik at the rate of Rs.300 p.m. It, therefore, appears to me that the appellant had won the criminal case on the basis, of the rent receipts issued in his brother's name and therefore, it was basically correct that his brother MA: Malik, was the tenant of the premises at the rate of Rs.300 p.m. of the previous landlord. No receipts have been produced by the appellant in his own name issued either by the present landlord or by the previous landlord and therefore he cannot now base his claim on a separate C tenancy in his favour. He and his witnesses could not, therefore, be believed in this respect. He had tried to send the money‑order of Rs.400 to the respondent but the same was done only after the ejectment order had been passed against MA. Malik and, therefore; this money‑order was sent only for the purpose of the objections to be raised by the present appellant. The evidence produced by the appellant a hardly of, any consequence and has been rightly disbelieved by the Rent Controller. The order of the criminal Court has also mentioned in its recital part the written statement by Choudhry Muhammad Hussain the appellant in that criminal case. I would reproduce; a portion of the same: "Opponent Choudhry Muhammad Hussain, in his written statement has given history of the plot and stated that he alongwith his brother MA. Malik obtained the plot together with constructions thereon on rent from Abdul Sattar's father in 1961 and they have been carrying on their motor repairs business under the name of Marine Autos."

6. I had directed the attention of Mr. Shoaih Bukhari to the above written statement of Choudhry Muhammad Hussain. .He was very fair in his approach and stated that it this part is relied upon then the appellant would be in a difficult situation. But he asserted that this portion should not be relied upon, as it was merely a recital of the written statement in the order and unless and until the whole written statement had been reproduced it was unfair to rely upon it. The counsel relied upon P L D 1966 S C 708, where it was held that a finding recorded in a criminal proceeding is not relevant except in that criminal proceeding. If this judgment was followed then the very basis of the claim of the appellant would be lost because he is relying himself upon the order of the Criminal Court where he was held to be in possession of the premises. Mr. Shoaib Bukhari also relied upon A I R 1943 Pat. 169(173), where it was observed that recital in a judgment is no evidence whatsoever to prove the exact admission made by a party or witness unless whole of the statement is recited therein.

7. I am of tae view that the appellant himself having produced the order of the Criminal Court is bound by the same. The order of the Criminal Court cannot be split up into the different portions, where one portion is relied upon by the appellant and the other portion is to be ignored according to the submissions of the appellant. I find that the Criminal Court had reproduced a substantial relevant portion of the statement of Muhammad Hussain and therefore, the same could have been considered. The whole of the statement would not be necessary in the circumstances of the case to have been reproduced, as the same had given history of the plot but the main submission of Chowdhry Muhammad Hussain had been reproduced. Moreover, I find that the other portion of the recital in the judgment has been clearly put to the appellant before the Rent Controller and he has admitted that he had relied upon the rent receipts issued in his brother's name by the landlord. The other relevant portion, in respect of which the appellant was cross‑examined, was to the following effect:‑ "He has produced the rent receipts issued in his brother's name by the landlord, wherein it is written "Rent of Rs.300 for the premises." Once the appellant admits in the statement made by him in the present case that he had relied upon the receipts issued in his brother's name, therefore, the other portion of the said judgment, where it had been stated that the appellant and his brother MA. Malik had obtained plot in 1901, appears to be in consonance with the position admitted by the appellant that the receipts of rent had been issued by the previous owner in the name of his brother.

8. In fact. I regard the order of the Criminal Court dated 13‑10‑1965 produced by the appellant himself as a part of his pleadings and therefore, the appellant cannot be allowed to retract him ,ell from any part of those proceedings. If he wanted to do that, then he had to give an explanation for the same which is completely lacking.

9. It, therefore appears to me that the appellant and his brother MA. Malik have been together in the disputed premises and they have been carrying on their business of motor repairs as well as repairs of photostat machines in the same premises. They have no conflicting interest with each other and the appellant has never bothered to obtain any rent receipts in his favour nor has he shown me any claim of exclusive possession before this execution in his own right but even from 1965 he had based his claim of possession upon the tenancy of his brother MA. Malik. Their interests are therefore common.

10. The appellant's counsel had urged that the respondent should be bound by his statement made in Rent Case No.1641/78. However, I rind that the respondent has clearly denied in his statement in the present proceedings before the Rent Controller that he made such a statement that the appellant was his tenant. The respondent, even if he made the statement referred to by the appellant, must have had in his mind reference to the joint possession of the appellant with his brother in respect of the whole premises where the business of motor garage and photostat machines was being carried on by the two brothers. What is, however, important to me is that it was for the appellant to support his objections by independent evidence of the tenancy in his favour and not by a mere oblique statement made by the respondent in a proceeding against another tenant where the specific question, whether the appellant and MA. Malik were independent tenants or not, was never raised. Therefore, the statement of the respondents in Rent Case No.1641/78 is rarely of any help to the appellant, who has not been able to establish that he has any right of tenancy in respect of the premises separate from his brother MA. Malik.

11. For these reasons, this appeal was dismissed by a short order on 22‑9‑1987 after hearing the counsel. I have allowed four months' time to the appellant to hand over the possession to the respondent but I have restrained the appellant from making any additions :end alterations in the premises transferring possession to any one else. H.B.T./M‑493/K Appeal dismissed.