USMAN GHANI Versus MUHAMMAD HAMEED

This second appeal filed under subsection (4) of section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959, was admitted by me to consider the question whether the dismissal of the first appeal under section 15(3) in limine was not unlawful. At the time of hearing however, the learned counsel for the appellant raised the additional ground of mis reading of evidence also.

2. The respondent had applied for the eviction of the appellant from the property in dispute on the ground of default in payment of rent. The appellant's case was that he was in possession of the property as a mortgagee under the registered mortgage-deed dated 17-8-1968, therefore, there was no relationship of landlord and tenant and be was not bound to pay any rent. He also raised the technical objection of non-service of notice of ejectment. On the pleadings of the parties following issues were framed :-

"(1) Whether the notice has not been duly served on the respondent? . If so with what effect? O. P. R.

(2) Whether relationship of tenant and landlord does not exist between the parties? O. P. R.

On issue No. 1 it was held that in this case there was no need for a notice. On the other issue, it has been found by both the learned Courts below that the appellant was no doubt a mortgagee but on account of receipt/endorse ment on the mortgage-deed which was found in possession of the respondent, the mortgage stood redeemed from the date of payment of the amount, i.e., 20-7-1971. And thus thereafter, on account of the written acknowledgment of tenancy, there came into existence the relationship of landlord and tenant. The plea of the appellant that the receipt/acknowledgment/ endorsement was a forgery and that it was made after the loss of original deed by him was rejected after due comparison of the disputed signatures with the admitted ones.

3. As noted earlier, this appeal was admitted to consider the question whether the disposal of the first appeal in limine was proper. Learned counsel, relying on Begum Humayun Zulfiqar Ismail and another v. Begum Hamida Saadat Ali 1968 S C M R 828, contended that even though the first appeal was dismissed after the summoning and perusal of the record, it was also necessary that before dismissing it the respondent should have been afforded an opportunity of hearing. The question of interpretation of the ruling cited by the learned counsel came under consideration in Sh. Allah Diya Saleem v. Abdul Qadeer P L D 1971 Lah. 311, it was held that if the first appeal is dismissed after the perusal of the record and the due consideration of the points raised before it, but without affording an opportunity of hearing to the respondent, A it will not be an illegal disposal. There are no distinguishable features qua the present case and there is no reason for me to differ with this interpretation of the Supreme Court ruling. It needs to be noticed, here that on ' specific query, the learned counsel for the appellant admitted that n prejudice has been caused to the present appellant by the first appellate Court not affording an opportunity of hearing to the respondent before dismissing the appeal. As to the perusal of the record by the said learned Court before deciding the first appeal, no dispute has now been raised as the files and the impugned order show that the appeal was disposed of after the summoning and perusal of the records. It is also clear that the points presented before the first appellate Court were duly considered. It is no doubt true that the first appellate Court has discretion to hold further enquiry in the matter but this depends upon the circumstances of each case. The fact that the respondent was not summoned before the disposal of the first appeal does not show that if he would have been summoned, that by itself would have impelled the learned first appellate Court to hold any further enquiry. After hearing the learned counsel on this point, I am satisfied that no justification has been made out for interference on the first conten tion raised by the learned counsel.

4. With regard to misreading of evidence, learned counsel tried to argue that in the case like the present one, it is always essential for the Court to seek expert opinion on disputed signatures. Comparison of the disputed writings by the Court for the purpose of ascertaining the correctness of otherwise of allegation of forgery is permissible under the Evidence Act. In this case, apart from the statement on oath from the respondent side, which furnished direct evidence about the proof of the disputed writing, two important circumstances furnished strong corroboration to this direct evi dence: one, that the mortgage was for three years and it was at about the expiry of the said period that the same was claimed to have been redeemed by payment of the mortgage money; and two, that the original mortgage deed was found in possession of the respondent-mortgagee. For further satisfaction, both the learned Courts below compared the disputed signatures of the appellant which they found, tallied with his admitted signatures on the mortgage-deed. I have also compared both the signatures and am of the view that they are of the same person. There is no question of any misread ing of evidence. The findings of the learned Courts below in this behalf are unexceptionable.

5. No other point has been raised. There is no force in this appeal and the same is dismissed but there shall be no order as to costs.

S. A. H. Appeal dismissed.