PLD 2011 Lahore 446 (PLP)

MUHAMMAD KHALID MEHMOOD KHAN, J.

The respondents filed an ejectment petition against appellants from property detailed in the ejectment petition, on 5-5-2005. The appellants denied the relationship of landlord and tenants. Learned trial Court, framed the issues and after recording the evidence, vide order dated 12-2-2010 allowed the ejectment petition. The appellants assailed the skid order through an appeal which too was dismissed on 8-3-2011. Hence this second appeal.

2. Learned counsel for appellants contends that it is a case of no evidence and as such impugned ejectment orders are against law and facts. He submits that affidavits of A.Ws. in their examination-in-chief were not attested by the Oath Commissioner and as such these suffer from inherent legal defect. The evidence of respondents through affidavits could not be considered to be the evidence of respondents and as such both the courts below have fallen in error of law, while passing the impugned orders. He has relied on Nazir Ahmed v. District Council through Chairman, District Council Sargodha (2003 YLR 2052), First Capital Equities Ltd., Lahore v. Mrs. Ishrat Saleem PLD 2008 Lah. 193), Mt. Sumitra Kuer v. Ram Khair Chowbey (AIR 1921 Patna 61), Abdul Karim v. Mst. Kohi Noor Begum and another (1981 CLC 1055), Sri Mahabirji and others v. Ramath Kasarwani (AIR 1936 'Patna 634) and Bashir Ahmad v. Abdul Wahid (PLD 1995 Lahore 98).

3. Learned counsel for respondents submits that appellants have not raised any objection before the learned trial Court nor even raised the only objection in memorandum of appeal before the first appellate court. He further submits that A.Ws while appearing in court were duly cross-examined by the petitioner and as such he could not now claim that affidavits of A.Ws were not attested by the Oath Commissioner. He adds that witnesses have taken oath before the court, hence the so called defect, if any, stand cured He supports the orders of two courts below.

4. Heard. Record' perused.

5. It is an admitted fact between the parties that affidavits of A.Ws were not attested by the Oath Commissioner and was notarized by Notary public, however when the witnesses appeared before the court for cross-examination the court administered the following oath from the witnesses:- This shows that witnesses have taken oath before the learned trial court then they were subjected to cross-examination. It is also an admitted fact that appellants have not raised any objection at the time of cross-examination of A.Ws.

6. It is a settled principle of law that if objection was not taken before the original court of jurisdiction it could not be allowed at the stage of appeal. The judgment 2003 YLR 2502(sic) is on the point of recording the evidence without administration of oath but the facts of present case are different. In this case the witnesses took oath before the court. In Judgment PLD 2008 Lah. 193 Supra, under old rent laws of 1959 the petitioner submitted affidavits of his witnesses in examination-in-chief, two witnesses were cross-examined and for remaining witnesses the right of cross examination was closed. Learned Rent Controller passed the ejectment order on the basis of affidavits of witnesses and considered the affidavits of those witnesses who were not cross-examined. The First Appellate Court set-aside the ejectment order declaring that Rent Controller has wrongly considered the evidence of uncross-examined witnesses, this Court allowed SAO and held as under:- "No procedure is prescribed in the matter of ejectment petition under the Punjab Urban Rent Restriction Ordinance, 1959. Under Order XIX, C.P. C. evidence by affidavits is permissible subject to the option of the opposite party to cross examine the witnesses." In this case the right of tenant was closed, but in the present case, the appellant has cross-examined the witnesses and not raised any objection. The other judgments referred by learned counsel for appellant are on different proposition of law i.e. admissibility of document. In this case the admissibility of document is not in issue. In fact the argument of learned counsel for appellant is that recording of evidence before Rent Controller is not permissible on affidavits. This issue earlier came up before the Hon'ble Supreme Court of Pakistan in Khadim Mohy-ud-Din v. Ch. Rehmat Ali Nagra (PLD 1965 SC 459) and Hon'ble Supreme Court of Pakistan held as under:-- "That the proceedings before the Rent Controller are not in the strict sense judicial that evidence should be recorded in the same manner as in a civil suit whereas the Rent Controller being , persona designata is required to satisfy himself about the grounds in the ejectment petition and pass order in consonance with justice, therefore, as is being done in Sindh Province, evidence in such cases should be ordered to be in the form of affidavits of witnesses of both the sides which should be filed in the Court and in case any of the parties wants to cross-examine him, the party producing his affidavit be directed to be responsible for his presence in Court for such purpose. It would not require the issuance of notices to the witnesses for appearance, for the party who had obtained the affidavit of such a witness would be bound to produce him in the Court for cross-examination and in case it fails to do so, it will be faced with the situation of his evidence not being read in the case. " No doubt affidavits in this case are not as per High Court Rules and Order Volume IV Part B Chapter 12-B Rules 8, 9, 12, 14 and 15 but this irregularity stands cured in the circumstances of this case. The witnesses when appeared before the learned trial Court they made a statement on oath that they have submitted their affidavit and contents of affidavit are correct, this means that the contents of affidavit have been admitted by the deponent before the court on oath and as such it will be deemed the examination-in-chief of the witness on oath. The appellants cross-examined all the witnesses without raising the objection that affidavits are not according to law and rules and rightly so because the witnesses have taken oath before the court accepting the contents of affidavits. The admission on the part of witnesses about the contents on oath is sufficient to negate the objection of learned counsel for appellant. Learned counsel for appellants has failed to point out any authoritative judgment whereby the admission on oath by the witnesses before the court about the contents of affidavit was refused on the sole ground that contents of statement are not attested by an Oath Commissioner.

6. The affidavits, if were not attested by the Oath Commissioner maximum it can be said that it was written examination-in-chief of witnesses proposed to appear. When the witness after, taking oath before the court states that he accepts the contents of his written statement, it will be considered the examination-in-chief of witnesses in the absence of any objection. The appellants have cross-examined all witnesses in detail but on merits they lost their case before two courts below. It is also an admitted fact on record that appellants have not taken this objection before the learned First Appellate Court and continued to build their case on the basis of available evidence. Now they have suddenly somersaulted and tried to wriggle out from the ejectment orders. In these circumstances the appellants could not be allowed to take this objection in second appeal in violation of his earlier stance.

7. In view of the above, this appeal fails and dismissed. S.A.K./M-900/L Appeal dismissed.