TANVEER JAMSHED Versus GHULAM HAIDER

1. HAIDER ALI PIRZADA, J.‑ ‑This first rent appeal is directed against order, dated 30‑3‑1983 passed by the Court of XIIth Senior Civil Judge and Rent Controller, Karachi, in Rent Case No. 3297 of 1974 and Execution Application No. 3 of 1980.

2. The facts which give rise to this appeal are that the respondent is landlord and owner of building standing on plot of land bearing No. 14, Ali Akbar Market, known as Akbar Manzil, Bahadurabad Commercial Area, Karachi. The respondent rented out one shop on the ground floor and one flat No. 1 on the first floor to the appellant No. 2. In the year 1974, the respondent filed Rent Case No. 3297 of 1974 for ejectment from the flat in dispute and Rent Case No. 3298 of 1974 against the appellant No. 2 for ejectment from the shop. The appellant No. 2 contested the case and the proceedings remained pending before the Rent Controller till 31‑8‑1978 when the appellant No. 2 and the respondent settled their disputes and filed compromise application in Rent Case No. 3297 of 1974 and the case disposed of in terms of compromise. In the compromise application it was agreed that the appellant No. 2 would vacate the premises, that is, Flat No. 1 in dispute on or before 30‑11‑1978.

3. The respondent filed Execution Application on 2‑12‑1979 which was registered on 2‑1‑1980. Case was put off to 6‑2‑1980 as Presiding Officer was busy. The case was adjourned from time to time to 2‑4‑1980. Notice was issued on 27‑3‑1980. The bailiff went for service of notice on 31‑3‑1980. According to bailiff's report, dated 2‑4‑1980 he called the appellant No. 2 but instead of him, somebody else came out who showed his inability about appellant No. 2, as such the notice was returned unserved. The case diary for 2‑4‑1980 shows that the case adjourned to 27‑4‑1980. It seems that notice was again issued on 19‑7‑1980 for 9‑9‑1980 which was also returned unserved and according to bailiff's report complete address was not disclosed on the notice. On 9‑9‑1980 the respondent filed' application under Order V, rule 20, C.P.C. for substituted services by way of pasting on the outer door of the appellant No. 2's flat in dispute as he was not served in the ordinary manner in spite of several attempts. The application was allowed by order, dated 9‑9‑1980 which reads "The pasting is allowed on the door of the opponent. Put off to 24‑9‑1980". The notice was issued on 10‑9‑1980. The bailiff pasted the notice on 21‑9‑1980. The bailiff was examined on 24‑9‑1980. It is pertinent to reproduce his deposition which reads as under:‑‑---

4. "I am working as bailiff in the District and Sessions Court, Karachi. On 20‑9‑1980, I received the notice of this Hon'ble Court for service on the opponent. On 21‑9‑1980 I went on the given address of the opponent i.e. Flat No. 1, Akbar Manzil, 14‑Ali Akbar Market, Bahadurabad, Commercial Area, Karachi. I found that the premises was locked, therefore, as per order of this Hon'ble Court I pasted the notice on the outer door of the opponent's premises. There is no witness available to get the sign. Therefore, I returned the same duly pasted the notice on the outer door of the premises, for further orders."

5. On 24‑9‑1980 the writ of possession was ordered to be issued. On 11‑10‑1980 an application under section 151, C.P.C. was filed for breaking open the lock on the entrance door. The application was allowed. The vacant possession was handed over to the respondent on 15‑10‑1980. On 15‑1‑1981 the appellant No. 1 filed an application under Order I, rule 10, C.P.C. stating therein that he had already filed suit No. 414 of 1980 for possession declaration and injunction in the Court of XIVth Civil Judge, Karachi on or about 1‑11‑1980. On or about 15‑3‑1981, the appellant No. 1 filed an application under section 12(2), C . P. C . read with amended Ordinance X of 1980 and read with Order XXI, rule 100, C.P.C. stating therein that in the month of January, 1979 there were talks between the respondent and him, as a result of which the respondent rented out flat bearing No. 1, vacated by his father, to him as the same was lying vacant and of no use to the respondent whereas he wanted to utilize the same. Consequently the respondent agreed to his request and rented out the flat in dispute with possession to him on a monthly rent of Rs.600. The respondent took an advance rent of one year amounting to Rs.7,200 with effect from 1‑1‑1979 upto 31‑12‑1979. He as per terms of verbal agreement between him and the respondent paid a good will of Rs.50,000 to the respondent for which no receipt was issued by the respondent. However, the respondent thereafter sent a receipt for the advance rent paid by him to the respondent. Photostat copy of the receipt was also annexed to the application. He remained in peaceful and lawful occupation of the said flat, when in or about the month of October, 1979, the respondent met him and demanded .another one year advance rent from him with effect from 1‑1‑1980 upto 31‑12‑1980. The appellant No. 1 paid him advance rent in cash with effect from 1‑1‑1980 upto 31‑12‑1980. The respondent sent a receipt as per his promise. A photostat thereof was annexed to the application.

6. The respondent filed objection to the application stating therein that the application is incompetent and has no locus standi to file the same. The respondent further stated that he did not let out flat in dispute to him and he did not receive advance rents for two years as alleged. The receipts are forged, fictitious and bogus. The learned Senior Civil Judge and Rent Controller, while dismissing the application, observed that the application was filed after the expiry of five months. She further observed that I have compared the signature of decree‑holder with his signature on those receipts and find that there is a difference in writing the word 'R' 'G' and 'Hyder'. Therefore, in my opinion, these receipts have not been issued by the decree‑holder. Apart from this, I do not find any substance in the contention of the intervenor about letting out the premises to him by the decree‑holder for the reason that if he had let out to him and he was in possession, why he did not file objections during the pendency of execution proceedings. Even otherwise, this application is not maintainable under the Sind Rented Premises Ordinance, 1979". The application was dismissed by order, dated 30‑3‑1983.

7. The appellants being aggrieved by the aforesaid order, dated 30‑3‑1980 of the XIIth Civil Judge and Rent Controller, Karachi, have preferred this First Rent Appeal on the grounds mentioned in the memo. of appeal.

8. Mr. Khurshid Anwar Shaikh the learned counsel for the respondent has raised number of preliminary objections that the appeal is time‑barred and the provisions of section 14 of the Limitation Act are not applicable in the facts of the instant case and the appellant is not an aggrieved person as he did not file any application under section 12(2), C.P.C.

9. On the other hand Mr. J.H. Rahimtoola, learned counsel for the appellant has submitted that the appellant can take advantage of section 14 of the Limitation Act by reason of earlier proceedings and thereby save limitation. The appellant No. 2 is an aggrieved person and the order of the learned Senior Civil Judge and Rent Controller is illegal and without jurisdiction.

10. It is an admitted position that the order of dismissal of application under section 12(2), C.P.C. was passed on 30‑3‑1983 and this appeal was presented on 2‑1‑1984. The application for certified copy was presented on 30‑3‑1983 and copy was delivered on 2‑4‑1983. According) to section 21 of the Sind Rented Premises Ordinance, appeal is to be presented within thirty days from the date of order. Since the appeal has been filed beyond the period of limitation, the same is liable to be dismissed unless the period during which C.M.A. No. 79 of 1983 filed by appellant No. 1 against the respondent which is still pending, is deducted under section 14 of the Limitation Act.

11. The point of law which arises for determination in this appeal is whether the appellant can take advantage of section 14 of the Limitation Act, 1908 by reason of earlier proceedings, that is C.M.A. No. 79 of 1983 which was presented on 6‑4‑1983 before the District Judge, Karachi. The same was admitted on 11‑4‑1983 by learned VIIIth Additional District Judge, Karachi and thereby saved limitation. The appellant filed this appeal on 2‑1‑1984. He filed the application under section 12(2) read with Order XXI, rule 100, C.P.C. which was dismissed on 30‑3‑1983. He filed appeal under Order XLIII(i)(ii), C.P.C. 1908 before the District Judge, Karachi and which is now pending before the VIIIth Additional District Judge, Karachi. The case of the appellants is that they on further advice have now been informed that the order passed on the application under section 12(2), C.P.C. read with Order XXI, rule 100, C.P.C. is appealable to this Court under section 21, Sind Rented Premises Ordinance, 1979. Hence this appeal.

12. Section 14 of Limitation Act in so far as it is material for my purpose runs as follows:‑‑

13. "(1) In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the defendant, shall be excluded‑,Where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.

(2) In computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance, or in a Court of appeal, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction,, or other cause of like nature, is unable to entertain it."

14. It would be noticed that there are three important conditions which have to be satisfied before the section can be pressed into service. These three conditions are (a) that the plaintiff /appellant must have prosecuted the earlier civil proceeding /appeal with due diligence; (b) the former proceeding/the former appeal must have prosecuted in B good faith in a Court which from defect of jurisdiction or other cause of a like nature was unable to entertain it; and (c) the earlier proceeding/ earlier appeal and the later proceeding must be based on the same cause of action.

15. Now the words "or other cause of a like nature" which follow the words "defect of jurisdiction" in the above quoted provision are very important. Their scope has to be determined according to the rule of Ejusdem Generis. According to that rule, they take their colour from the preceding words "defect of jurisdiction" which means that the defect must have been of an analogous character baring the Court from entertaining the previous suit/appeal. A Full Bench of the Lahore High Court consisting of Harries, C.J., Abdul Rehman and Mehajan, J. expressed the following view in the case of Bhai Jai Kishan v. Peoples Bank of Northern India A I R (31) 1944 Lah. 136):

16. "In any case, conceding for the sake of argument, but without admitting, that my conclusions as to the reliefs and the causes of action in a petition for insolvency and in an application for execution not being the same are incorrect, I have no manner of doubt that the dismissal of the insolvency petition on the ground that the act of insolvency petition on the ground that the act of alleged to have been committed by the debtor was not an act of insolvency within the meaning of section 6, Provincial Insolvency Act, cannot possibly be held as a result of the Court's inability to entertain the petition for 'defect of jurisdiction or other cause of a like nature' used in subsections (1) and (2) of section 14, Limitation Act."

17. In the instant appeal, it is not denied by the appellants that' the Court which tried the previous appeal was not precluded from entertaining it because of any defect of jurisdiction. I have, therefore, only to see whether the said Court was unable to entertain the earlier appeal on account of any defect of an analogous character. Even a most liberal approach to the question does not impel me to hold that the Court trying the earlier appeal was unable to entertain it on any ground analogous to the defect of jurisdiction. The appellants themselves in para. 4 of memo. of appeal stated that appellant No. 1 on dismissal of his application under section 12(2), C.P.C. read with Order XXI, rule 100. C.P.C., under legal advice filed Civil Miscellaneous Appeal No. 79 of 1983 which is pending in the Court of VIIIth Additional District Judge, Karachi. Thus it could not be held that the Court threw it out on the ground of lack of jurisdiction or any other defect of the like character. Accordingly the exclusion of the period from 30‑3‑1983 to 2‑1‑1984 sought by the appellants cannot be legitimately allowed to them while computing the period of limitation.

18. There is also another factor which prevents me from granting the benefit of section 14 of the Limitation Act to the appellants. I am of view that under section 14 of the Act indulgence can only be granted in case of a mistake or error committed by a reasonable and prudent man exercising due diligence and caution. Where the mistake of the learned counsel is unaccountable and the result of the carelessness and a total lack of due care and attention of the said conduct could be a ground for relief under section 14 of the Limitation Act. The Hon'ble Supreme Court expressed a similar view in Mirza Muhammad Saeed v. Shahabuddin and 8 others P L D 1983 S C 385. It is however, not necessary to dilate upon this aspect of the matter in view of my categorical finding that the earlier appeal which is still pending did not suffer from any defect of jurisdiction or any other defect of like character which could have precluded the Court from entertaining it.

19. The other preliminary objection of the respondent is that the appellant No. 2 is not an aggrieved person and as such he cannot be arrayed as the appellant No. 2 in the instant appeal.

20. On the other hand Mr. J.H. Rahimtoola the learned counsel for the appellants contends that a person who is not a party in the application under section 12(2), C.P.C. can under certain circumstances be competent to file appeal and/or can be joined as co‑appellant against the order of the Senior Civil Judge and Rent Controller. There is nothing in the Code of Civil Procedure or the Sind Rented Premises Ordinance, 1979 which can be taken as giving to a person not a party to an application /suit to appeal against the order/judgment/decree therein, but the trend of judicial opinion, is that the English practice in this respect may properly be followed in our country also.

21. The statutory provisions that govern the presentation of appeals are sections 96, 100, Order XLI, rule 1, C.P.C. and Order XLIII, rule 1, C.P.C. The statutory provision that governs the presentation of appeals against the orders of Rent Controller is section 21 of the Sind Rented Premises Ordinance, 1979.

22. It is manifest that none of these provisions expressly bars the filing of an appeal by an aggrieved person who was not actually a party to the proceeding. However, Mulla in his Commentary on the Civil Procedure Code (Volume 1. page 643‑13th Pakistan Edition 1981) under the heading "who may appeal" remarks thus:

23. "An appeal under this section may be preferred by any of the following persons:

(1) Any person to the suit adversely affected by the decree, or, if such party is dead, by his legal representative.

(2) Any transferee of the interest of such party, who so far as such interest is concerned, is bound by the decree, provided his name is entered on the record of the suit.

(3) Any auction‑purchaser may appeal from an order in execution setting aside the sale on the ground of fraud. (No person unless he is a party to the suit, is entitled to appeal under this section. But a person who is not a party to the suit may prefer an appeal with the leave of the appellate Court and such leave should be granted if he would be prejudicially affected by the judgment and if it would be binding on him as res judicata, under Explanation 6 to section 11."

24. The last statement seems to be supported by some of the decided cases and also the practice prevailing in several High Courts. This position also emerges from the decision of the Madras High Court in Indian Benck Ltd. v. Bansiram Joshamal Firm A I R 1934 Mad. 360, which was accepted as correct by a Bench of the Bombay High Court, in Bombay Province v. Western Indian Automobile Association A I R 1949 Bom. 141 to that extent.

25. The position is stated in the Annual Practice (1963 Edition) Volume 1 at page 1658 thus:

26. "Any party to the action may appeal, for example, one alone of several plaintiffs and also any person served with notice of the judgment or Order XVI, rule 40. But in addition, in accordance with old Chancery practice, any person may appeal by leave (obtained on ex parte motion, to the Court of appeal) if he could possibly have been made a party to the action by service. It does not require much to obtain leave, making out a prima facie case that he is a person interested, aggrieved or prejudicially affected by the judgment or order and should be given leave, will obtain it; but he cannot appeal without."

27. To a similar effect is the passage contained in Halsbury's Laws of England (IVth Edition, Volume 37, page 520 (para. 679), which is as under:‑‑---

28. "A person who is not a party and who has not been served with such notice of the judgment or order may obtain leave to appeal, as may a person who alleges that he is aggrieved by the judgment or order and who can make out a prima facie case why he should have leave, but leave will not be given to a person who could not have been a party."

29. In leading case on the point. In re: Securities Insurance Company, (1894) 2 Ch. 410, Lindley, L.J; has stated the rule thus:---

30. "Now what was the practice of the Court of Chancery before 1862, and what has it been since? I understood the practice to be perfectly well‑settled that a person who is a party can appeal (of course within the proper time) without any leave, and that a person who without being a party is either bound by the order or is aggrieved by it, or is prejudicially affected by it, cannot appeal without leave. It does not require such to obtain leave. If a person alleging himself to be aggrieved by an order can make out even a prima facie case why he should have leave he will get it, but without leave he is not entitled to appeal."

31. The provisions as regards appeal in England are not materially different from those contained in the Civil Procedure Code or letter patent or Sind Rented Premises Ordinance. In neither of them is there any express mention of persons who could appeal. In my opinion the practice consistently followed by the English Courts is a just and equitable practice and is in no way inconsistent with the doctrine that a right of appeal can only be created by Statute. I agree with the learned Judges of the Bombay High Court that there is no reason why the practice should not be followed by Courts in Pakistan.

32. It is needless to say that the appellant No. 2 was the party in the eviction application which was compromised and as a result thereof, he agreed to hand over vacant possession of the premises in dispute on or before 30‑11‑1978. The respondent filed execution application and obtained the possession of the premises in dispute through the bailiff of the Court. His case in the appeal is that the respondent obtained possession of the premises in dispute by committing fraud on the senior Civil Judge and Rent Controller. He ought to have filed application under section 12(2), C.P.C. But the appellant No. 2 did not file an application under section 12(2) of Civil Procedure Code and this plea cannot be considered in this appeal. All that I can say is that if there is such a plea of fraud, it is open to the appellant No. 2 to file a fresh application under section 12(2), C.P.C. and the present judgment by this Court will, in no way, stand in the way of appellant No. 2 starting such proceedings which certainly will be considered on its merits by the Senior Civil Judge and Rent Controller. He cannot file appeal as of right. I am of the view that he can file appeal with the leave of the appellate Court. In this case he did not seek leave of the appellate Court and no oral request was made to this effect as such the appeal filed on his behalf is not competent and the same is dismissed.

33. On the question of limitation, the relevant dates are 15‑10‑1980 when the respondent got the possession of flat in dispute under the writ of possession issued by the Court or Rent Controller in Rent Case No. 3297 of 1974 and on 15‑3‑1981 when the appellant No. 1 presented an application under section 12(2), C.P.C. read with Order XXI, rule 100, C.P.C.

34. Under Article 165 an application by a person dispossessed of immovable property and disputing the right of the decree‑holder or purchaser at a sale in execution of a decree to put into possession can be filed within thirty days from the date of dispossession.

35. Under Article 181 an application for which no period of limitation is provided elsewhere in this Schedule or by section 48 of the Code of Civil Procedure, 1908 can be filed within three years.

36. After hearing the matter at length and carefully considering the submissions made by the learned counsel, I agree with the proposition that the period of thirty days provided by Article 165 could be applicable. That being so, it could not be treated as an application for which no period of limitation is provided by the relevant law. The residuary Article in the Limitation Act in terms does not apply to this case. Admittedly, the learned Rent Controller correctly held that the application under Order XXI, rule 100, C. P. C. was time‑barred In the circumstances it was not necessary for the learned Senior Civil Judge and Rent Controller to go into other questions or frame issue or to take down evidence.

37. Then there is the further question whether applying Article 165, the application presented on 15‑3‑1981 was within time under that article. As already stated` that .the respondent got the possession of the disputed premises on 15‑10‑1980 in pursuance of the writ of possession. If the starting point of limitation is the date of dispossession, then the application must be held to be barred, unless the period during which Suit No. 4141 of 1980 filed by the appellant No. 1 against the respondent on 1‑11‑1980 which is still pending, is deducted under section 14, Limitation Act.

38. It seems that the appellant No. 1 did not file any application under section 14 of Limitation Act alongwith application under Order XXI, rule 100, C. P. C. I am of the view that under section 14 of the Act indulgence cap only be granted in cases of a mistake or error committed by a reasonable and prudent man exercising due diligence and caution. Where the mistake of the learned counsel is "unaccountable and the result of carelessness and total lack of due care and attention" the said conduct cannot be a ground for relief under section 14 of the Limitation Act.

39. Mr. J.H. Rahimtoola, the learned counsel for the appellants has contended that application under Order XXI, rule 100, C. P. C. was competent. On the other hand Mr. Khurshid Anwar Shaikh, the learned counsel for the respondent has submitted that the application was incompetent.

40. The question falling for determination in this appeal is, whether the Rent Controller had the jurisdiction to entertain and hear the application? The decision of this question largely depends upon the true interpretation of section 22 of the Sind Rented Premises Ordinance, 1970. According to the learned counsel for the appellants the ejectment order is executable by the Rent Controller and, therefore, all the equitable principles contained in C. P. C. are fully attracted. He heavily relied upon Messrs Bambine Ltd. v. Messrs Lelmor International Ltd. and another P L D 1983 S C 155 wherein the Hon'ble Supreme Court has taken the view that under section 22 an order passed by the Controller or appellate authority has to be executed in such manner as may be, determined by the Controller or as the case may be, the appellate authority. It, therefore, was vehemently argued, that the Rent Controller should have held an inquiry into the question of appellant No.l's tenancy right but he illegally declined to exercise the jurisdiction vested in her.

41. It is advantageous to reproduce section 17 of the repealed Ordinance and section 22 of the Sind Rented Premises Ordinance, 1979 which read as under:

42. "17. Execution of orders‑‑ Every order made under section 10 or section 13, and every order passed on appeal under section 15 shall be executed by a civil Court having jurisdiction in the area as if it were a decree of that Court."

43. "22. Execution of orders.‑‑ An order made by the Controller or the appellate authority shall be executed in such manner as may be determined by' the Controller, or as the case may be, the appellate authority."

44. There is a change in the forum entrusted with the execution of the ejectment order. Section 17 of the repealed Ordinance provides that an order shall be executed by a civil Court having jurisdiction in the area as if it were decree of that Court. The variation, is, not undesigned. It is indicative of the intention of the Law‑maker, to take away such execution from the civil Court and confer it on a special Tribunal, which was held in Khadim Mohyuddin v. Rehmat Ali P L D 1965 S C 459.

45. Rules 99, 100 and 101 of Order XX, C. P. C., empower the Court to investigate the rights of a person other than the judgment -debtor who resists the decree‑holder, in obtaining possession of immovable property, against whom the decree is to be executed, or in execution of the decree is dispossessed after the enforcement of 1979 Ordinance, the order made by the Controller or the appellate authority shall be executed in such manner as may be determined by the Controller or, as the case may be, the appellate authority. A close examination of these provisions of the C.P.C. and section 22 amply indicates that under this section the right of a third person to file objections to the execution of the ejectment order, before the forum executing it, is intended to be taken away. The language of the section is quite plain and clear.

46. The existence of relationship of landlord and tenant is the foundation of the jurisdiction of the Rent Controller. If a person other than a tenant is, arrayed before him, his jurisdiction cannot be extended to adjudicate upon the rights of such person and give him a relief. In Haji Ahmed Haji Essa v. Rent Controller, etc. 1983 C L C 840, a Division Bench of this Court laid down the following dictum:

47. "In this view of the matter we are inclined to hold that the learned Rent Controller cannot entertain objections, in which the objector claims a tenancy right in his favour as the same will be a question foreign to the rent proceedings, in which the ejectment order was passed. The question whether respondent No. 3 in fact had become tenant in April, 1977, is a question which may be agitated by respondent No. 3 before any other competent forum but in an execution proceeding, the learned Rent Controller is not entitled to adjudicate upon the status of respondent No. 3 as a tenant of the petitioner."

48. The dictum is applicable to the facts of this case. I am of the view that the learned Rent Controller correctly held that the application is incompetent.

49. There is another aspect of the case. The Suit No. 4141 of 1980 is still pending. In this view of the matter the application under Order XXI, rule 100, C. P. C. was rightly dismissed by the Rent Controller.

50. The point about the maintainability of application under section 12 (2), C. P. C., the contention of Mr. Rahimtoola is that the application under section 12 (2), C. P. C. was maintainable. On the other hand Mr. Khurshid Anwar contends that the application was not maintainable.

51. The grievance of the appellant No. 1 is that he was inducted by the respondent as a tenant in respect of Flat No. 1 at a monthly rent of Rs.650. According to him the respondent received from him two years' advance rent against two receipts issued by the respondent. His case is that he was dispossessed by the respondent. The case of the appellant No. 1 is that the appellant No. 2 had already surrendered the possession of flat in dispute to the respondent and thereafter the respondent rented out the flat in dispute to him. In these circumstances the grievance of the appellant No. 1 is that he was dispossessed from the lawful possession and he cannot plead cause of the appellant No. 2.

52. In the circumstances I am of the view that the appellant No. l would not be permitted to file an application under section 12 (2),1 C.P.C. The Rent Controller is, in my opinion, right in holding that the application was incompetent.

53. The last point about the scope of the powers of Court under section 73, Evidence Act.

54. Mr. Rahimtoola, the learned counsel has contended that section 73, Evidence Act did not entitle the Court to assist a party to the proceedings. It entitled the Court only to assist itself for a proper conclusion in the interest of justice. His contention is that the order of the Senior Civil Judge and Rent Controller, in so far as it related to disposal of the application was not legal and was beyond the scope of section 73 of the Evidence Act.

55. The appellant No. 1 in paras. 5 and 6 of his application under section 12 (2), C. P. C., stated that respondent agreed to his request and rented out the flat in dispute to him. The respondent took an advance rent of one year and thereafter sent a receipt Annexure 'C'. The respondent met him and demanded another one year advance rent. The appellant No. 1 being relative paid him another one year advance and thereafter the respondent sent him receipt. The photostat copy thereof was annexed as Annexure 'D' to the application. The respondent filed objections and stated therein that Annexures 'C' and 'D' are bogus, fictitious and forged documents.

56. Section 73 of the Evidence Act, reads as under:

57. "Comparison of signature, writing or seal with others admitted or Proved: ‑‑ In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.

58. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words of figures alleged to have been written by such person.

59. This section applied also, with any necessary modification to finger impressions."

60. Evidence Act recognises two direct methods of proving the hand writing of a person:

(i) By an admission of the person who wrote it.

(ii) By the evidence of some witness who saw it written.

61. These are best methods of proof. These apart, there are three other methods of proof of opinion. They are:

(a) By the evidence of a handwriting expert (section 45)

(b) By the Evidence of a witness acquainted with the handwriting of the person who is said .to have written the writing in question (section 47)

(c) Opinion formed by Court on comparison made by itself (section 73).

62. All these three cognate modes of proof involve a proof of comparison is made by the expert of the disputed writing with the admitted or proved writing of the person who is said to have written the questioned documents.

63. The first paragraph of section 73 provides for comparison of signature, writing or seal purporting to have been written by a person) with others admitted or proved to the satisfaction of the Court to have been written by the same person. But it does not say by whom suchl comparison may be made. It is clear that such comparison may be made by a handwriting expert (section 45) or by one familiar with the handwriting of the person concerned (section 47) or by the Court. A sample writing taken by the Court under the second paragraph of section 73 is in substance and reality, the same thing as admitted writing within the purview of the first paragraph of the section.

64. Section 73 is, therefore, to be read as a whole in the light of section 45. Thus it is clear that a Court trying a suit or Controller trying an eviction application or holding an inquiry under Order XXI, rule 100 or section 12 (2), C. P. C. does not exceed its powers under section 73, if in the interests of justice, it directs the defendant/ respondent person appearing before it, to give his sample writing to enable the same to be compared by a handwriting expert chosen or approved by the Court/ Controller, because even in adopting this course, the purpose is to enable the Court/ Controller before which he is ultimately put up for trial to compare the disputed writing with his (defendant/ respondent's) admitted writing, and to reach its own conclusion with' the assistance of the expert.

65. In the instant case, the Senior Civil Judge/Rent Controller, did not apply this test to the present case. The Senior Civil‑Judge did not direct the respondent to execute sample writing. The respondent in his objections stated that Annexures 'C' and 'D' are forged, fictitious and bogus but no attempt was made by him for sending the disputed documents and admitted documents to the handwriting expert. It is not apparent from the record that the admitted signature, writing was before the Senior Civil Judge except the signature of the respondent on this record. I am of the view that section 73 does not entitle the Court to assist a party to the proceedings. It entitles the Court to assist itself to a proper conclusion in the interest of justice.

66. Mr. Khurshid Anwar Shaikh, the learned counsel for the respondent has fairly conceded that the observation of the learned Senior Civil Judge to the effect "I have compared the signature of the D/H with his signature on these receipts and find that there is a difference in writing the word 'R' 'G' and 'Hyder' be expunged. Therefore, in my opinion, these receipts have not been issued by the "D/H" be expunged from the record. In these circumstances, in the interest of justice, the observations of the learned Senior Civil Judge are expunged from the order.

67. I refrain to express any opinion on the divergent contentions of the learned counsel for the parties regarding the relationship of landlord and tenant between the parties and the illegal dispossession appellant No. 1 or the same was outcome of fraud as it is likely to prejudice the case of either of the parties in Suit No. 4141 of 1980 pending adjudication.

68. The F.R.A. No. 43 of 1984 is accordingly dismissed. In the circumstances of this case the parties will bear their costs.

69. A. A. Appeal dismissed.