INAM ELAHI Versus MUHAMMAD JAVED

1. I intend to decide S.A. Nc.129 of 1999 and S.A.O. No.130 of 1999 by one consolidated judgment having similar facts and law.

2. The brief facts giving rise to these appeal are that respondents' father Abdul Majeed obtained lease of the land in question initially from F.D.A. and subsequently from M.C., Faisalabad. The predecessor‑in‑interest of respondents constructed the shop over the plot in question. The respondents rented out the same to the appellants respectively. Initially the civil litigation started between the appellant and respondents which was finalized up to the level of learned A.D.J. and decided in favour of respondents. The predecessor‑in-interest of the respondents filed ejectment petition against the appellant. The respondents filed two ejectment petitions against the present appellant on the ground of default, personal need and impairment of shop. The present appellant filed written statements and controverted the allegations levelled in the ejectment petitions. Out of the pleadings of the parties the learned Rent Controller framed the following issues:

(1) Whether the petitioner is in personal need of the rented property? OPA

(2) Whether the respondent is defaulter of rent of the month of February, 1990 to November, 1996 and is liable to be ejected? OPA

(3) Whether the respondent has damaged the rented property? OPA

(4) Whether the petitioner is lessee and is not competent to bring this application? OPA

(5) Relief/Order.

2. The ejectment petitions were accepted‑ by the learned Rent Controller vide order, dated 20‑3‑1998. The appellant being aggrieved, filed appeals before the learned District Judge, Faisalabad, who entrusted the same to the learned A.D.J. The appeals were also dismissed by two different judgments decrees, dated 20‑4‑1999; hence the present appeals.

3. The learned counsel for the appellant contended that judgment of both the Courts below are the result of misreading and non -reading of the record. He further stated that evidence was recorded by the learned Rent Controller in violation of the mandatory provisions of C.P.C. i.e. Order 18, Rule 5 and Rule 8; that learned Rent Controller verbatim copied the evidence .of the parties in second case which is not in accordance with the mandatory provisions of C.P.C. He further stated that evidence was not recorded by the learned Rent Controller himself as is evident from the statement of A.W.1 in which it is clearly revealed that it was dictated by him, therefore, evidence was not recorded by learned Rent Controller and it was in fact recorded by the Reader of the Court which is not in accordance with the aforesaid mandatory provisions of C.P.C. He further stated that lease of the respondents was cancelled by the Municipal Corporation and thereafter appellant deposited the rent to M.C., Faisalabad. The appellant did not commit any default qua the payment of rent but both the Courts below did not consider this aspect of the case; that the lease of the respondents was cancelled, therefore, the learned Rent Controller wrongly decided the question of personal need against the evidence on record. He summed up his arguments that the land was originally allotted to Abdul Majeed, predecessor‑in‑interest of respondents, thereafter the same was not allotted by the M.C., Faisalabad in favour of respondents, therefore, there is no relationship of landlord and tenant between the respondents and appellants but both the Courts below did not consider this aspect of the case.

4. Learned counsel for the respondents stated that civil litigation regarding the title of the property‑in‑question was decided up to the level of learned A.D.J., Faisalabad between the appellants and the respondents, therefore, appellant is estopped to agitate this plea that there is no relationship of landlord and tenant between the appellants and respondents. He further stated that title of the property was finally decided in favour of the predecessor‑in‑interest of respondents, thereafter the respondents filed ejectment petitions against the appellants. He further stated that evidence was dictated by the learned Rent Controller in presence of the learned counsel for the parties, therefore, learned Rent Controller did not violate mandatory provisions of C.P.C. He further stated that provisions of C.P.C. are not applicable in stricto senso in the proceedings before the learned Rent Controller although principles of C.P.C. are applicable in the rent proceedings; that appellants did not object at the time of copying of evidence of one case in the other case, therefore, appellants are estopped to raise this objection at this stage; that. appellants got the possession of the shop in question from the predecessor‑in‑interest, therefore, appellants cannot deny the relationship of landlord and tenant as the principle laid down in the following judgments:‑‑‑

3. (1990 CLC 908); (1989 CLC 2285).

4. He further stated that both the Courts below have concurrently decided against the appellants and the appellants counsel has failed to point out arty piece of evidence which was misread or non‑read by both the Courts below; that this Court has very limited jurisdiction to disturb the findings of fact recorded by both the Courts below while exercising powers under section 15 of West Pakistan Urban Rent Restriction Ordinance. He further stated that Municipal Corporation, Faisalabad has allotted the land in question in favour of present respondents after death of the predecessor‑in‑interest of respondents.

5. In rebuttal appellants counsel stated that respondents failed to bring on record any proof by the M.C., Faisalabad in favour of respondents, therefore, judgments of both the Courts below are the result of misreading and non‑reading of the record.

5. I have given my anxious consideration to the contentions of learned counsel for the parties. The main contention of the learned counsel for the appellants that the evidence recorded by the learned Rent Controller in one ejectment petition was copied/incorporated in the other petition has caused prejudice and appellants‑have not been given chance to cross‑examine the witnesses in the second case.

6. It is pertinent to mention here that the learned counsel for the appellant did not point out that the learned counsel who appeared on behalf of the appellants before the learned Rent Controller have objected to the same. It is settled proposition of law that nobody is allowed to approbate and reprobate as the principle laid down by the Hon'ble Supreme Court in Ghulam Rasul's case PLD 1971 SC 376. It is also settled proposition of law that provisions of C.P.C. are not applicable in stricto senso in rent proceedings. The learned Rent Controller is well within his right to adopt any method of recording the evidence to decide the rent matters as quickly as possible. The aforesaid proposition of law was considered by the Hon'ble Supreme Court in Khadim Mohy‑ud Din's case PLD 1965 SC 459 and observed as follows:‑‑

7. "If the words satisfied imports the interest of an inquiry, even then it cannot be said that in holding such inquiry he will be bound by any particular procedure."

8. The same proposition was also considered by the Hon'ble Supreme Court in Sh. Abdul Sattar's case PLD 1985 SC 148 and the relevant observation is as under:‑‑‑

9. "Any attempt to import any particular procedure, such as that prescribed in the C.P.C. or in any other law and to insists on its meticulous adherence is totally alien fo the intention of this statute. In fact, the Controller in discharging many of his functions is not required to act judicially but he acts at best in a quasi judicial capacity."

10. It is pertinent to mention here that Hon'ble Supreme Court has considered the case of Khadim Mohy‑ud‑Din and observed in Sh. Abdul Sattar's case as follows:‑‑

11. "The contention raised before us with regard to the order of the Rent Controller being bad for not recording the evidence‑in the present case separately is entirely misplaced."

12. It is also admitted fact that the appellant got the shop in question on rent from the predecessor‑in‑interest of respondents, therefore, appellants are estopped to agitate that. the relationship of landlord and tenant did not exist as the lease in favour of the predecessor‑in‑interest of respondent has not renewed after the death of the original lessee on the well‑known principle of estoppel and waiver. It is also admitted fact that both the Courts below have concurrently decided against the appellants. The Hon'ble Federal Court has laid down a principle in Abdul Majeed v. Khalid Ahmed (PLD 1959 FC 38) and laid down the following principles:‑‑

13. "I held that the High Court has no jurisdiction to entertain a second .appeal on the ground of an erroneous findings of fact, however, gross and inexcusable error may seen to be unless there is an error in the procedure provided by law, which may possibly have produced an error or defect in the decision of the case on the merits."

14. Appellants' counsel failed to point out any error in the procedure by prescribed law under the provisions of Urban Rent Restriction Ordinance as the principle laid down by the Hon'ble Supreme Court in Khadim Mohy‑ud‑Din's case and Sh. Abdul interference in concurrent findings of fact can be made by the High Court only when the evidence is misread and finding is based on surmises and conjecture, or based on inadmissible evidence, or there existed an error or defect in the procedure which may possibly have introduced aw error or defect in the decision on merits. The learned counsel for the appellants failed to point out any piece of evidence which was misread or non‑read by both the Courts below qua personal need. In the case of Ayub Khan and another v. Fazal‑e‑Haq and others PLD 1976 SC 422. The Hon'ble Supreme Court was pleased to hold that the Rent Controller in exercise of his discretion was entitled to follow applicable principle of C. P. C. The contentions raised by appellants' counsel are based on technicalities while relying on Order 18 (Rules 5 and 8, C.P.C.) which also do not support the case of appellants as the principle laid down by the Hon'ble Supreme Court in Khuda Yar's case PLD 1975 SC 678; that technicalities should not be hindrance in the way of justice and the relevant observation is as under:‑‑‑

15. "Mere technicalities unless over insurmountable hurdle should not be allowed to defeat the ends of justice."

16. The same was followed in Imtiaz Ahmed's case PLD 1963 SC 382. It is consistent view of the Hon'ble Supreme Court after addition of Article 2A in the Constitution to avoid technicalities and cases must be decided on merits. I am fortified by PLD 1989 SC 532.

17. In view of what has been discussed above, these appeals fail and the same are dismissed with no order as to costs. The appellants being in possession, are directed to premises within four months from today.

18. Q.M.H./M.A.K./I‑121/K

19. Appeals dismissed.