MUHAMMAD AKRAM Versus IMRAO ALI SHAH

Syed Amrao Ali Shah, respondent brought two suits against the appellant; one for possession of the house in dispute located in Mandi Heera Singh, Tehsil Depalpur, District Okara, described by boundaries in the plaint. It was averred in the plaint that the respondent was the owner of the house, which was leased out by him to the appellant on 18‑1‑1976 at the monthly rent of Rs.120. The second Suit was for recovery of Rs.2,590 as arrears of rent. The appellant resisted both the suits; denied that he occupied the house as tenant under the respondent and rather asserted that he was in its possession for the last 15 years as owner thereof. Both the suits were consolidated. The trial Court framed seven issues, arising out of the pleadings of the parties. On evaluation of the evidence of the parties and on consideration of the law points, involved in the case, the learned Trial Court by its judgment dated 19‑11‑1981 answered all the issues in favour of the respondent. Consequently both the suits were decreed against the appellant. He brought two separate appeals. The learned Addl. District Judge, upheld the findings of the trial Court and by a consolidated judgment dismissed both the appeals on 30‑7‑1983. The unsuccessful defendant has now brought this 2nd appeal assailing the validity of the First appellate Court's judgment and the two decrees passed against him.

2. It is to be seen that after hearing the arguments of the parties when the learned trial Court had reversed the decision, the appellant moved two applications one dated 27‑10‑1981 under Order VI, Rule 17C.P.C. for amendment of the written statement to raise the plea that the house was allotted to the appellant under Settlement Scheme No. VII on 17‑5‑1972 and a P. T.O. issued to him. It was pleaded that the P.T.O. was delivered to the Patwari on 5‑10‑1981 and thus the plea could not be raised earlier. In the other application filed on 13‑10‑1981 the appellant prays for grant of permission to tender in evidence the P. T.O. by way of additional evidence. The respondent contested both the applications.

3. The learned trial Court took the' view that the P. T.O. was issued prior to the institution of the suit and not relied upon by the appellant. The fact that the applications were moved after the closure of the evidence also, weighed with the trial Court. In its opinion there was no cogent reason to permit the appellant to produce additional evidence. The application in this behalf was disallowed on 20‑10‑1981. As regards the application for amendment of the written statement it was rejected on 3‑11‑1981. The reasons recorded for such rejection by the learned Civil Judge are:‑

"The defendant wanted to amend the written statement that he has become owner of the house vide P.T.O issued on 17‑5‑1972 under Settlement Scheme VII. The P.T.O. was issued on 17‑5‑1972 whereas the case was instituted on 5‑12‑1979. The defendant remained slept over his rights for amendment uptil now. Now the case was fixed for final arguments, the defendant is admittedly in possession of house in dispute and he intends to prolong the case by one way or the other. I do not find any cogent reasons in the application for amendment."

4. The validity of both the orders has been assailed in this appeal. As regards the main case the appellant's learned counsel has thrown a challenge to the concurrent findings of the Courts below, only on issues Nos.6 and 7. The English version of these two issues is reproduced below:

(6) Whether the house in dispute was leased out by the plaintiff to the defendant? OPP.

In case issue No.6 is proved then how much rent the plaintiff is entitled?"

4‑A. I have heard the learned counsel for the appellant and the respondent in person. To begin with the rejection of the appellant's two applications, it was submitted that since the P. T.O. was not in his knowledged, therefore, neither a plea founded thereon could be raised previously in the written statement nor could the documents be tendered in evidence earlier. In the submission of the learned counsel, the Courts below acted illegally in rejecting the applications.

4‑B. These arguments do trot lend any valid basis to allow the two applications at the second appeal stage. The P.T.0. is dated 17‑5‑1972. It is difficult to accept that the appellant did not post himself with the knowledge thereof for a period for more than 8 years. If he was really applicant for the house in dispute under Settlement Scheme No. VII, he should have relied upon the record of the Settlement Department and summoned the same for evidence. It is to be seen that the respondent questions the genuineness of the P.T.O. Further, it is evident from the record that in the memorandum of appeal before the learned first appellate Court, the appellant did not take any ground regarding the order dated 3‑11‑19.81. True enough, in the memorandum of appeal a grievance has been expressed in respect of the order dated 20‑10‑1981, whereby the trial Court declined to permit the appellant to lead additional evidence. However, in the impugned Judgment there is no discussion of the appellant's said grievance. The presumption is that this ground was not pressed during arguments before the learned first appellate Court. This view finds support from Abid Hussain v. Mst. Afsar Jehan Begum and another (P L D 1972 Karachi 54). There is thus no good ground to allow this point to be urged in the second appeal.

5. It is to be seen that in support of issues Nos.6 and 7, the respondent himself entered the witness‑box and produced five other witnesses. He also tendered in evidence EX.P.1 and Ex.P.2.. The document Ex. P.1 is a rent note by the appellant in favour of the respondent. It was tendered in evidence by the respondent, in his statement. The document Ex. P.2 is an application dated 6‑5‑1973 addressed by the respondent to the Chairman, Union Council, Mandi Heera Singh for grant of permission to construct a shop. It is described therein by boundaries which are the same as given in the plaint. The application bears an endorsement of the Chairman allowing the respondent to proceed with the construction.

6. It is contended that since in the written statement, a distinct plea has been raised by the appellant that the document Exh.P.l was a forgery, a specific issue ought to have been framed in respect of this plea. According to the learned counsel due to the trial Court's failure to frame proper issues, the entire proceedings stand vitiated. In support of this submission the learned counsel heavily relies on Ananta Kumar Majumdar and others v. Gopal Chandra Majumdar and others (P L D 1961 Dacca 65).

7. After perusal of the record I do not find any weight in this argument, for, the main controversy between the parties was as to whether or not the appellant occupied the house as a tenant under the respondent. This disputed question of fact, is, amply reflected by issue No.6, which is quite comprehensive to cover all shades of controversy between the parties. As already stated, the respondent, when appearing as his own witness, tendered this document in evidence. It was open to the appellant, to produce evidence in rebuttal to establish, that EXh.P.l was never executed by him and that it was a forged document. Except his own bare denial, he did not produce any evidence in this respect. He could have examined the handwriting expert or produced at least one marginal witness of the document. No such evidence was examined by him. He cannot now take shelter under the plea that a specific issue on the genuineness of the document was not formulated. I have glanced through the precedent. The general principle that it is the obligation of the Court to frame issues on the pleadings of the parties has been reiterated in that judgment. This authority does not advance the petitioner's cause in any manner, particularly when it has not been shown that non‑framing of the issue caused some prejudice to him.

8. The finding on issues Nos.6 and 7 is a finding of fact and such a finding cannot be questioned in second appeal. Being conscious of the limited scope for interference in such a case at the second appeal stage, the learned counsel argued that the finding recorded on these two issues, was not founded on any valid evidence. When asked to elaborate his submission, he endeavoured to make out three points. Firstly EXh.Pl was not proved in accordance with law, and therefore, could not be read in evidence. Reliance was placed on Banwari Prasad Singh and others v. Mt. Bigni Kuer (AIR 1927 Patna 131), Hafizuddin v. Muhammad Anwar (1985 S C M R 1289), Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and 2 others (P L D 1973 SC 160) to support this submission. Secondly, this document requires registration compulsorily and thirdly Exh. P 2 is not a document of title and, therefore, the respondent could not have been treated as owner of the property, on the rectitude of this document.

9. There is a marked difference between the relevancy of evidence and mode of proof. An objection to the relevancy of evidence can be taken at any time. Even at the appellate stage, when such an objection is raised and found sustainable the Court is bound to exclude the irrelevant piece of evidence from consideration. On the other hand, the mode of proof being a procedural matter, if no objection is taken when the evidence is led, it shall be deemed to have been waived of. " Thus, when a document, which otherwise, is relevant, is tendered in evidence, the party failing to object to the mode of proof, cannot be heard, to say at a later stage that the document was not proved according to law. In Jhanda Singh and another v. Harnam Singh and others (A.I.R. 1926 Lahore 415), this rule has been laid down in the following words:‑

"When a fact relevant in itself has been wrongly allowed to be proved in a manner not permitted by law, unless the opposite party objects to the evidence at the time when it is offered, he cannot object afterwards."

In Dogar Mal and others v. Sunam Ram and others (A.I.R. 1944' Lahore 58) the accounts books were tendered in evidence without the proof of handwriting and an objection to their admissibility raised for the first time in appeal was turned down as under:

" .. The question was not then as to their admissibility but as to the manner of their proof. And no objection seems to have been raised in the trial Court that the entries contained in them could ‑‑not be looked at without formal proof. They were freely referred to by the parties and by the Court. If the question related to the manner of proof alone, it should have been taken at the time when the accounts books were sought to be proved. The mode of proof was a question of procedure. It was capable of being waived. Had it been taken at the right time, the plaintiffs might have attempted to prove it regularly but none was taken and it was too late for them to object to it for the first time before Beckett, J ...."

Similar was the view expressed in Gopal Das and another v. Sri Thakurji and others (A I R 1943 Privy Council 83). The objection of the appellant's learned counsel is not to the relevancy of P 1 but to the manner in which it has been tendered in evidence. Admittedly no such question was raised by the appellant in the trial Court when the document was produced by the respondent and exhibited. It is, thus not possible to give weight to the petitioner's objection now. Even otherwise no exception can be taken to the production of the document by the respondent in his statement. As regards the precedent cited on behalf of the appellant in the Patna judgment a mortgage bond was brought on the record in violation of provisions of Section 68 of the Evidence Act. The decision in Hafeezuddins case is a leave refusing order which largely deals with Section 73 of the Evidence Act. Likewise, the observations appearing in Khan Muhammad Yousuf Khan Khattak v. S. M. Ayub and 2 others, ibid, relied upon by the learned counsel for the appellant, are rested on a different footing. None of these precedents has any applicability to the instant case.

10. I now proceed to deal with second limb of the appellant's argument that EXh.Pl required registration compulsorily. This document is in the nature of a rent note executed by the appellant in favour of the respondent. It does not indicate that it is for a period of more than one year. On the face of it, the document does not fall within the mischief of Section 17 (1) (d) of the Registration Act. Anyhow, even if EXh.Pl, required registration, in view of the'. deletion of clause (c) of Section 49 of the Registration Act, under) the amending Ordinance XLV of 1962, the documents requiring registration, but not registered, are admissible in evidence. A reference in this connection may be made to Anwar Sultana and others v. Pak. Cooperative Housing Society, Ltd. (P L D 1964 Kar. 116) and Zahir Ahmad v. Seth Sugni Chand and another (P L D 1965 G Kar. 195). It may be added that even if Exh:Pl is not read in evidence, there is sufficient oral evidence to prove that the house was rented out to the appellant by the respondent.

11. As regards the appellant's third objection it has already been noticed that the respondent examined five witnesses. Out of these Hakam Ali and Muhammad Rafiq categorically stated that the house belonged to the respondent and was let out by him to the appellant. Fazal Khan was another witness, examined by the respondent, whose statement shows that before leasing out the house to the appellant it was occupied by the said witness as a tenant under the respondent. Muhammad Sadiq, still another witness, deposed that the house was constructed by him at the instance of the respondent. Arif Ali was the Chairman of the Union Council, Mandi Heera Singh, who entered the witness‑box and supported the respondent. The finding that the house belonged to the respondent, is not based on Exh.P2 but is the result of appraisal of entire evidence and appreciation of a number of facts proved on the record. The Courts below disbelieved the appellant's evidence and relied upon the evidence produced by the respondent. The document Exh.P2 has been used as a corroborative piece of evidence to show that the property was constructed by the respondent. Thus nothing turns on the argument that EXh.Pl is not a document of title.

12. Having failed to persuade the Court, on the basis of any of his submissions aforesaid, the learned counsel for the appellant came forth with the argument that there are contradictions in the statements of the witnesses examined by the respondent. This argument hardly deserves any consideration for disturbing the finding of fact in second appeal.

As all the contentions raised on behalf of the appellant, have failed, this R.S.A. is dismissed but the parties are left to bear their own costs.

M. Y. H. /M‑724/L. Appeal dismissed.