2021 PLP 1579 (CLC)

ROZI KHAN BARRECH, J.

The appellant Wahid Bakhsh son of Mola Bakhsh assailed the judgment dated 14.07.2015 passed by Senior Civil Judge/Rent Controller Hub (hereinafter "rent controller"), whereby the Eviction Application No.6 of 2014 filed by the respondent was accepted.

2. Brief facts leading to filing of the instant appeal are that the respondent Achar (landlord) filed eviction application for ejectment of appellant Wahid Bakhsh (tenant) from grocery shop situated at Mouza Pathara, Tehsil Hub, bearing Khasra No. 675 measuring 2 poles (shop in question) under Section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter "the Ordinance, 1959") mainly on the grounds of default and personal requirement. When put on notice by the rent controller, the appellant/tenant contested the application inter alia, on the ground that there is no relationship of landlord and tenant between the parties. In view of the allegation and assertion of the parties, the learned Rent Controller framed a preliminary issue regarding the existence of relationship of landlord and tenant. The parties produced their respective evidence, where-after the eviction application was accepted vide judgment dated 14.07.2015, which is now impugned by the appellant by filing the instant appeal.

3. I have heard arguments of the learned counsel for the parties, gone through the record of the case and perused the relevant law on the subject as well.

4. The moot question which falls for determination before the trial court was to see as to whether the relationship of landlord and tenant exists between the parties. The trial court while deciding the eviction application relied upon the documents i.e. mutation entries, map prepared by the Patwari, report of Tehsildar, decision of the collector under section 161 of the Land Revenue Act, 1967. The trial court held that due to above documents the relationship of landlord and tenant exists between the parties. But on the other hand neither the above documents were exhibited before the trial court nor the author or representative of the said documents were produced before the trial court. While the landlord and tenant got recorded his statement on oath before the trial court. He only stated that the above document is available on record but the trial court did not exhibit the same.

5. From perusal of the record it vividly exposed that the documents which were relied by the trial court are the pivotal documents which ascertained the validity of the claim of the respondent/land lord. The moot point involved in this claim is that whether the respondent/landlord is owner of the property in question and the appellant is tenant of the same or otherwise.

6. In my view this process was not defined under Qanun-e-Shahadat Order, 1984. For production of documents there is a recommended procedure provided in Articles 72 and 78 of Qanun-e-Shahadat Order, 1984. The said Articles of the Order (ibid) is reproduced as under:- Article 72: "The contents of documents may be proved either by primary or by secondary evidence." Article 78: "If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the hand-writing of so much of the document as is alleged to be in that person's hand writing must be proved to be in his hand-writing." The production of the documents and proof of documents are two different subjects. Documents could be produced in evidence subject to proof as required under Article 78 of the Order, 1984.

7. In the present case neither the person who signed the documents has been examined nor it has been proved through any other evidence to suggest that the documents were issued by the persons mentioned in the documents. The Hon'ble Supreme Court of Pakistan has examined this question in the case of Muhammad Yousuf v. S.M. Ayub (PLD 1973 SC 160 at page 191) it has observed as under:-- "I am of the view that even if such documents are brought on record and exhibited without objection, they remain on the record as "exhibits" and faithful copies of the contents of the original but they cannot be treated as evidence of the original having been signed and written by the persons who purport to have written or signed them, unless the writing or the signature of that person is proved in terms of the mandatory provisions of section 67 of the Evidence Act. If instead of the copy Exh. PE. , the original Form "E" which formed the primary evidence, had been exhibited on the record without proving as to who was its author can it be argued that by merely exhibiting it, the document should be taken for granted as bearing the signature of the appellant without proof that in fact it was written and signed, by him. The onus obviously lay on the respondent to prove this fact and his failure to prove it did not cast any responsibility on the appellant to negatively disprove it."

8. The documents which were relied upon by the trial court have not been proved in accordance with law, therefore same cannot be taken into consideration by the court. When such matter came up before the Hon'ble Supreme Court of Pakistan it was held in the reported judgment Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others (PLD 2010 SC 604) that: "The document which has not been brought on record through witnesses and has not duly exhibited, cannot be taken into consideration by the Court." The procedure adopted by the trial Court by relying on the documents which were not exhibited before the court and were not part and parcel of the record, is not only contrary to the provisions of Articles 72, 75, 76 and 78 of the Order, 1984, but on the other hand the appellant/tenant had been deprived to check the authenticity of the said documents by way of cross-examination; thus, the findings of the trial Court appears to be perverse, arbitrary, illegal and based on inadmissible evidence. The alleged documents relied by the trial court in the manner, not recognized by law, therefore, impugned judgment is not sustainable.

9. For what has been discussed above, the impugned judgment dated 14th July 2015, passed by the learned Senior Civil Judge/Rent Controller Hub who relied upon the documents which were not part and parcel of the record and without adopting the due process of evidence is declared illegal and the same is not maintainable in the eyes of law. Resultantly, the instant appeal is accepted and the impugned judgment dated 14th July 2015 in Eviction Application No.06 of 2014 is set-aside. The instant case is remanded to the learned trial Court with a direction to decide it afresh strictly on merits in accordance with law after adopting the procedure and affording opportunity to the parties to produce their respective evidence subject to all just exceptions. MH/222/Bal. Case remanded.