MUHAMMAD ZAMAN vs ABDUL GHAFFAR AND 3 OTHERS

' This is tenant's second appeal wherein he has challenged his ejectment order dated 18-4-1974 pertaining to Shop No, 484-B (3) 701-B, Mohallah Kasamabad, Rawalpindi passed by the Rent Controller as well as the judgment of the appellate authority dated 29-4-1975 passed in appeal under section 15 of the Ordinance VI of 1959, in the terms of compromise arrived at between the parties.

2. Briefly stated, Fateh Muhammad now deceased, filed an ejectment petition in May 1969 seeking the ejectment of the present appellant on the ground of default, damage to property and personal need. The Rent Controller after recording the evidence directed the ejectment of the appellant on the sole ground of personal need vide order dated 18-4-1974. The tenant appealed against that order on 15-5-1974 which was heard and decided by Mian Ghulam Ahmed the then learned Additional District Judge, Rawalpindi, dismissing the same on the basis of a mutual compromise arrived at between the parties on 29-4-1975. The tenant again has come in second appeal against that consent order complaining that the alleged statement dated 29-4-1975 attributed to the appellant was got thumb marked by the Additional District Judge, Rawalpindi under coercion and undue influence. According to him he (appellant) was asked to affix his thumb-mark on a blank paper and thereafter, the learned Additional District Judge, got recorded the alleged statement attributed to him of his own. The appellant had neither compromised with the respondents nor executed any compromise deed and the impugned order under appeal was the outcome of the influence exercised. By the respondents over the Additional District Judge. He further explained that the appellant soon after, applied to the learned Additional District Judge, on 2-5-1975 for re-calling order under appeal and on the same day also made a written complaint, narrating the entire facts referred to above, to the Chief Justice of this Court. The learned counsel vehemently contended that the parties had been litigating for the demised premises t or about 7 years seriously and the appellant had been paying rent to the landlord, regularly and as such there was no plausible reason to vacate the alleged premises so readily, through a compromise. On the other hand the learned counsel for the respondent urged that a consent order has been challenged and as such the present S. A. O. Is not competent. He argued with vehemence that all Judicial acts will be presumed to have been pertormed properly and such presumption of correctness is available to them under section 114 of the Evidence Act. He submitted that an eviction order had already been passed against the appellant by the Rent Controller and there was no occasion for the Additional District Judge, to make forgery when he could very well maintain the ejectment order of Rent Controller while dismissing the appeal on merits.

3. The arguments advanced by the learned counsel for the respondents seem nearer to the truth.

There is nothing on the record to suggest that the thumb impression of the present appellant was procured by the learned Additional District Judge, through fraud and misrepresentation. Even there is nothing on the record to come to that conclusion that why the learned Additional District Judge, felt the necessity to help the opposite party through alleged nefarious acts of forgery, undue influence and coercion. Even no affidavit of the counsel in support of the allegations has been produced on the file. On the other hand the learned Additional District Judge, was asked to submit comments on the allegations levelled against him by the appellant and he submitted the same accordingly and have been placed on the file. In his comments he has vehemently denied the correctness of allegations levelled against him. He has stated that the insinuation that the order dated 29-4-1975 was the outcome of influence exercised by the respondents upon the Court was absolutely without substance and extremely objectionable and the complainant should be proceeded against for making an uncalled for and untruthful accusation about a Court of law.

4. In the present case, the appellant has absolutely failed to substantiate the allegations levelled against the Presiding Officer. It may be that there may be some exceptional cases of 'proved' accidental slips and forgery where a challenge is possible but is the absence of `conclusive' proof of such erroneous statement, I am of the opinion that the recital in a judgment of a Judicial Officer or an act of recording the statement by a Judicial Officer must be taken to be correct as regards the facts said to have been admitted or conceded before him. To hold otherwise will be to prolong the hearing of case and to drag Judicial officers into unnecessary vexatious and undignified controversies. The presumption arising from section 114 of the Evidence A Act, as to the legality and correctness of the Courts proceedings can only be overturned by exceptional strong evidence produced by a complainant on the record. Therefore, all Judicial proceedings are presumed to have been duly performed unless the contrary is proved. In AIR 1944 Mad. 450 it was ruled as under:- "When a question of fact arises as to what happened in the lower Court the statement of the Presiding Judge is conclusive. No affidavit by an Advocate or a party is admissible to controvert the statement of the Judge."

' Similar view had been taken in Reg. v. Pestonji Dinsha and another (1), where it was ruled as under :- "The statement of the Judge, who presides at a trial, whether it be in a criminal or civil case, is, as to what has taken place at the trial, conclusive. Neither the affidavits of bystanders, nor of jurors, nor the notes of counsel, nor of short-hand writers are admissible to controvert the notes or statement of the Judge. Rex v. Grant 5 B & A D 1081, 1807), Everett. v. Youells (4 B1 & Ad. 683, 684); Gibbs v. Piket (9 M & W 351) and in Reg v. Aaron Mellor (27 L J N S 121) Mag. Ca. Coleride, J. At page 131, says:- ' I apprehend that we are bound to give credence to the statement of the Judge, and to take what the Judge so states to be incontrovertibly the fact.

' It is suggested this is not a record, but we have no more power of contradicting the statement of a learned Judge reserved for our consideration, then we have the power of contradicting any allegation upon a record", and Martin B. (P. 137) says: "We must consider the statement of the Judge as absolute verity, and we ought to take his statement precisely as a record, and act on it in the same manner as on a record of Court, which of itself imports absolute verity."

5. In view of what has been stated above I take statements of parties recorded by the Additional District Judge, and the impugned decision made thereon to be correct and truthful Judicial record.

As the present appellant himself had volunteered to vacate the premises on expiry of '6 months period before the learned Appellate Authority on 29-4-1975, and got passed a consent order in the terms of the aforesaid compromise in his appeal, therefore, he cannot now re-agitate the same in this second appeal. Hence impugned order based upon consent is not challengeable in second appeal under section 15 of Ordinance VI of 1959. In other words, the impugned order having a force of decree is not the result of the adjudication of the Court but springs from the agreement or the concord of the parties themselves and clearly amounts to a consent decree which is unassailable in this second appeal. The appeal has no merit and the same is dismissed with costs throughout.

(1) (1873) 10 Bom. H C R 75