MUHAMMAD KHALID Versus FAKHRUDDIN
This appeal filed under section 21 of the Sindh Rented Premises Ordinance, 1979, has given rise to an interesting argument, but when the statutory provisions with which it is concerned are examined the decision does not present great difficulty.
2. Appellant Sh. Muhammad Khalid is a tenant of respondent in respect of Shop No.2, situated on commercial Plot No.E/10, Block No.4, Drigh Colony, Karachi, at a monthly rent of Rs.300. On 26‑5‑1982 the respondent filed Rent Case No.2534 of 1982 under section 14 of the Sindh Rented Premises Ordinance, 1979, against the appellant for ejectment on the ground that he was employed in Defence Services of the Government of Pakistan and was on leave preparatory to retirement and that he had given such notice to the appellant on 13‑3‑1982 for vacating the shop in his possession, who, however, refused to do so. The appellant resisted his eviction on various grounds. According to him the application filed by the respondent seeking his ejectment was barred under subsection (2) of section 14 of the Sindh Rented Premises Ordinance, 1979, as he being the owner of other commercial premises was in possession thereof. The case proceeded before Vth Senior Civil Judge and Rent Controller, Karachi, who dismissed it vide order dated 11‑12‑1982. The respondent challenged the said order in appeal before this Court (FRA No.6 of 1983), but without success. He, therefore, filed Petition for Leave to Appeal before the Supreme Court of Pakistan and the leave was granted. The petition was converted into an appeal and numbered as Civil Appeal No. 46‑K of 1988. On 25‑11‑1990 the appeal was disposed of by consent of the parties with the following order:‑‑
"At the hearing of the appeal which arises out of Civil Petition No.124 of 1987, learned counsel for both the parties after addressing arguments at some length prayed that the appeal may be allowed, the impugned judgment of the High Court, dated 25th January, 1987 in First Rent Appeal No.6 of 1983 and the order of the Rent Controller in Rent Case No.2534 of 1982 be set aside and the case be remanded to the Rent Controller concerned to record evidence in the case in order to ascertain.‑‑
(i) Whether Shop No.1, situated on Commercial Plot No.E/10 in Block No.4, Shah Faisal Colony (formerly known as Drigh Colony), Karachi has been and is in occupation of Muhammad Pervez and others, the legal representatives of the deceased tenant Muhammad Aslam, or in the occupation of Fakhruddin, appellant, or any other person set up by him, and
(ii) Whether Fakhruddin, appellant, does not own and possess any other shop. That the learned Rent Controller be directed to complete and dispose of the said enquiry within 15 days from receiving such direction from this Honourable Court, and in case it has found that the said shop has not been in occupation of Fakhruddin, the appellant, or any person set up by him, the respondent tenant, namely, Sh. Muhammad Khalid, be ordered to vacate Shop No.2 in the same building on the same plot and hand it over to the appellant:"
3. On remand the matter was heard by IIIrd Senior Civil Judge and Rent Controller (East), Karachi, before whom the respondent examined himself (P.W.1), and Muhammad Pervaiz (P.W.2). To rebut this evidence the appellant examined himself (D.W.1), and Muhammad Hanif (D.W.2). On the assessment of evidence, both oral as well as documentary, the learned Rent Controller decided both the issues against the appellant and consequently directed his eviction. This order dated 24‑1‑1991 is the subject‑matter of the present appeal.
4. I had the benefit of full and able arguments from Mr. Muhammad Sharif, learned counsel for the appellant and Mr. Rehan‑ul‑Hasan Farooqui, learned counsel for the respondent, who have given a commendable labour and time to the study of the brief. The learned counsel for the appellant has referred to several points but eventually confined his arguments in main to the following contentions:‑‑
(i) That the Rent Controller was prejudiced against the appellant with the result that he judged the evidence in the light of conclusions formed by himself, rather than drawing conclusions from the evidence.
(ii) That the Rent Controller has acted on inadmissible evidence, not properly proved.
(iii) That the Rent Controller has miscontrued and misinterpreted the facts on the record.
5. As regards the first argument of the learned counsel for the appellant it must be said that on a careful examination of the impugned order, I have not discovered the result which apparently he has tried to produce. The Presiding Officer of a Court is fully justified in making criticism in the order of matters relevant to the conduct and merits of the case, but the same should be expressed in decorous terms. There can be no cavil with the proposition of law as laid down in Manzoor Hussain v. The State, reported in PLD 1963 Lahore 20, but with respect the same is not attracted to the facts of this case, which are distinguishable.
6. The main question pressed for my consideration in this appeal is as to whether or not the learned Rent Controller has acted on inadmissible evidence, not properly proved before him. A reference in particular has been made to photostat copies of the proceedings in Misc. Rent Case No.2867, of 1983, Rent Case No.2533 of 1982, and Rent Case No.4554 of 1982, brought on record through respondent (P.W.1) and Muhammad Pervaiz (P.W.2). relating to earlier litigation between the respondent and the tenant of Shop No.1, situated on Plot No.E/10, Block No.4, Drigh Colony, Karachi. Mr. Muhammad Sharif, learned counsel for the appellant has referred me to a wealth of case law commencing from before the start of present century down to the year 1983 in support of his contention. The first of these cases is a decision of Privy Council in the case of Krishna Kishori Chowdhrani and another v. Kishori Lal Roy, reported in 1887 IA. (Volume XIV) 71, followed by Umade Rajaha Raje Damara Kumara Venkatalingama Nayanim Bahadur Varu, Rajah of Kalahasti v. Panaganti Parthasarathy Rayanimgar and others, reported in A.I.R. 1942 Madras 558, Gopal Das and another v. Sri Thakurji and others reported in AIR 1943 PC 83, East India Trading Company, New York v. Badat and Company, Bombay, reported in AIR 1959 Bombay 414, Allah Din (deceased) represented by Bhawal Bakhsh and others v. Rehmat and others reported in PLD 1967 Lahore 1051, Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and 2 others, reported in PLD 1973 SC 160, Khawaja Muhammad Razzaque v. Omer Farouk, reported in 1982 CLC 318, and Rahim Bakhsh v. Ghulam Muhammad and another, reported in 1983 SCMR 1137. On examining these authorities I am of the opinion that they do not go quite so far as learned counsel for the appellant thinks they do. Mr. Rehan‑ul‑Hasan Farooqui, learned counsel for the respondent has on the other hand cited a long current of authorities including those of Supreme Court in an attempt to show that the objection as to the formal proof of documents must be taken at earliest point of time, which certainly cannot be taken in appeal. The cases on which reliance is placed by him are Abdullah and 3 others v. Abdul Karim and others, reported in PLD 1968 SC 140, Malik Din and another v. Muhammad Aslam, reported in PLD 1969 SC 136, Ch. Muhammad Saleem v. Muhammad Akram and others, reported in PLD 1971 SC 516, Ghulam Muhammad v. United States Agency for International Development (U.S. AID) Mission, Islamabad and another, reported in 1986 SCMR 907, Rehmat Ali and 6 others v. Muhammad Ishaq, reported in 1988 C L C 1489, and Muhammad Aslam and another v. Mst. Sardar Begum alias Noor Nishan reported in 1989 SCMR 704. The trend of authorities indubitably leads to the following conclusions as settled propositions of law:‑‑
(i) All documents of a judicial proceeding are not necessarily "public documents" and certified copies of such documents which are not "public documents" are inadmissible in evidence.
(ii) Documents which are not copies of judicial record, should not be received in evidence without proof of signatures and handwriting of persons alleged to have signed or written them.
(iii) Statements previously made in Court cannot be allowed to form part of proceedings unless identity of persons making such statements is established.
(iv) The objection as to formal proof of documents must be taken at "earliest point of time", which cannot be taken subsequently and "certainly not in appeal".
(v) Documents once admitted in evidence, the objection against admission cannot be allowed at appellate stage. '
(vi) Admission of a document in evidence without objection from opposite side dispenses with the requirement of its formal proof.
7. I may also usefully borrow the terse observations of Muhammad Afzal Cheema, J. (as he then was) in the case of Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another, reported in PLD 1975 SC 678, which are as follows:‑‑
"The proposition could hardly be disputed that the principal object behind all legal formalities is to safeguard the paramount interest of justice. In fact while considering the importance of legal technicalities and rules of procedure in the administration of justice, it is inevitable to recall the various evolutionary stages in the transition from justice without law of primitive society to justice in accordance with law of modern society and the conflict between equity. and law in judicial history. It cannot be denied that legal precepts were devised with a view to impart certainty, consistency and uniformity t(,) administration of justice and to. secure it against arbitrariness, errors of individual judgment and mala fide. Over a period of time this development of codes and rules led to the evolution of what is called `jurisprudence of Conception' a system of logical deduction from fixed premises. In order to avoid the rigidity and hardship of ultra formalism recourse is had to principle of equitable application 2nd interpretation of legal precepts and conferment of judicial discretion on the Courts as envisaged by Order XLI,, rule 33 of the C.P.C. in regard to Constitutional power of this Court to do complete justice in all matters. These two provisions read together lead to the irreparable conclusion that mere technicalities unless offering an insurmountable hurdle should not be allowed to defeat the ends of justice."
8. The objection as to the formal proof of the copies of earlier judicial proceedings relied upon by learned Rent Controller was not taken before him. It, therefore, does not lie in the mouth of the appellant to say today that the impugned order is based upon inadmissible evidence.
9. The crux of the whole matter is whether Shop No.1, situated on Commercial Plot No.E/10 in Block No.4, Shah Faisal Colony (formerly known as Drigh Colony), Karachi, has been or is in occupation of Muhammad Pervaiz (P.W.2) and others, the legal representatives of the deceased tenant Muhammad Aslam, or in 6ccupation of Fakhruddin, the respondent, or any other person set up by him. Admittedly this shop is owned by the respondent, besides the Shop No.2, in possession of the appellant, which is subject‑matter of this litigation. According to respondent the Shop No.1 was previously in occupation of Muhammad Aslam who died and after his death the 'same , is occupied by his legal heirs including Muhammad Pervaiz (P.W.2). There is overwhelming oral and documentary evidence to show '(hat at no time Shop No.1 was occupied by the respondent, who in fact was in litigation with Muhammad Pervaiz, which litigation ultimately ended before the Supreme Court. The order by which leave to appeal was granted by the Supreme Court ' in CPLAs Nos.125 and 124 of 1989 makes the entire position clear and for the sake of convenience is reproduced in extenso:‑‑
" S.A. NUSRAT, J .‑‑This order will dispose of the above two petitions, which arise out of .a common judgment of the High Court passed in two rent appeals.
2. The dispute in. the above petitions relates to shops premises bearing Nos.1 and 2 situate on Commercial Plot No.E/10 in Block No.4, Drigh Road, Karachi. The petitioner, admittedly a Government employee, became due for. retirement on attaining the .age of superannuation w.e.f.. 1‑7‑1982. While the petitioner was' on leave preparatory to retirement, he. served a notice dated 13‑3‑1982 under section 14 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) on respondent in CP 124/87 asking him to vacate Shop No.2 on the ground that the same was required by him for his personal use. Thereafter Rent Case No.2534 of 1982 was filed against the said respondent for eviction under section 14 of the Ordinance. The Rent Controller, after recording the evidence of the parties, dismissed the application by. his order dated 11‑12‑1982. This order was challenged by the petitioner in first rent appeal before the High Court,‑ which was dismissed as per impugned judgment.
3. The facts in CP 125/87 are almost similar except that notice under section 14 of the Ordinance was first issued on 13‑3‑1982 to the original tenant Muhammad Aslam (predecessor‑in‑interest of the respondents in the said petition) whereafter Rent Case No.2533 of 1982 was filed against Muhammad Asiam under section 14 of the Ordinance. In the course of the proceedings, it was disclosed that the original tenant had died and consequenty the eviction application was withdrawn and dismissed. The petitioner thereafter again served notice under section 14 of the Ordinance dated 24‑8‑1982 upon the legal heirs of deceased Muhammad Aslam (respondents in CP 125/87); hence Rent Case No.4554 of 1982 was filed under section 14 of the Ordinance for their eviction from Shop No.1 situate on the same plot. The application was also dismissed by the Rent Controller on 24‑4‑1983 holding that the petitioner had failed to prove that he had retired from Government service. The issue whether the petitioner was in occupation of another shop owned by him was decided in the negative on the ground that there. was no independent evidence availabe on the record to prove that the petitioner was in possession of another shop in the locality. The order of the Rent Controller was challenged in first rent appeal before the' High Court, which was dismissed as per impugned judgment.
4. We heard the learned counsel for the petitioner and the learned counsel for the caveater and have perused the impugned judgment.
5. The issue with regard to the petitioner being a retired Government servant was decided on the basis of the evidence of a witness, who was . examined by the learned High Court. In the circumstances, the only question left in the case was with regard to bona fide requirement of the shops by the petitioner on the basis of his applications under section 14 of the Ordinance. The learned High Court, however, found that the petitioner had failed to show that he required both the shops for establishing his business because if his need was genuine, the application should have been filed for one shop and not for both the shops. It was further found that the petitioner had failed to mention in his application. that he had applied for eviction of his tenant from the other shop. This conduct of the petitioner, according to the learned High Court, reflected upon the bona fides of the petitioner.
6. It was contended by the learned counsel for the petitioner that in view of the finding that the petitioner was not in possession of any other shop, the question of bona fide requirement for at least one of the shops was established in the case and an order of eviction should have been passed accordingly confining the petitioner's prayer to one shop only instead of dismissing his both appeals. It was further contended that in any case the question of bona fide requirement was not relevant consideration in ‑a case filed under section 14 of the Ordinance so long it was established that the petitioner was a retired Government servant and had no other premises in his possession. This Court has granted leave to appeal in several cases for examination of this question.
7. On the foot of such contentions, the learned counsel for the petitioner stated that he may be permitted to withdraw CP 125/87 relating to Shop No.1; which is dismissed accordingly.
8. Leave to appeal is granted to .examine the contentions, noticed hereinabove, in CP 124/87, which pertains to Shop No.2. Security Rs.2,500.
10. Muhammad Pervaiz (P.W.2) when examined before' the Rent Controller has fully supported the case. of the respondent. His evidence leads to a conclusion that Shop No.1 was previously occupied by his brother Muhammad Aslam and after his death it remained under the tenancy of the legal heirs of Muhammad Aslam. Para.9. of his affidavit is self‑explanatory, which reads as follows:‑
"That Shop No.1.is till this day under our tenancy and there never. was a break in the tenancy which continues from the tenancy of ' . Muhammad Aslam and or, his death, we immediately came into possession thereof as his heirs and claimed tenancy as his heirs."
11. Much capital was sought to be made out from certain discrepancies which appeared in the .evidence of Muhammad Pervaiz (P.W.2). I have carefully considered the so said contradictions, but in my opinion they are not really contradictions of a nature which would shake the probative value of his testimony, but these were errors in statements which were bound to appear due to lapse of time.
12. The perusal of the record further reveals that neither in the written statement, .nor elsewhere, it was ever the case of the appellant that tire Shop No.1, adjoining to the disputed shop is in possession of a person set up by the respondent. In fact the respondent had filed ejectment case against the tenant of that shop also, who had been depositing the rent in the office of the Rent Controller. Such a tenant who had seriously contested his eviction upto the level of the Supreme Court cannot be said to be set up person. The learned Rent Controller had arrived at the said finding after thoroughly examining the case and appraising the evidence on record. No‑exception can be taken to the finding recorded by him.
13. The evidence which has come on record proves beyond any shadow of doubt:
(i) That the respondent/landlord is a retired Government servant.
(ii) That the notice as required by subsection (1) of section 14 of the Sindh Rented Premises Ordinance, 1979, was served by the respondent/landlord upon the appellant/tenant.
(iii) That the respondent/landlord has not rented out any building after he has retired.
(iv) That the respondent/landlord is not in occupation of a commercial premises owned by him in any locality.
14. On overall appraisement of the entire evidence available on record in this case and on considering the law available on this subject, I am of the view that the appeal has got no merits, which is accordingly dismissed with no order as to costs. Two months' time is, however, allowed to appellant to vacate the demised premises.
N.H.Q./M‑1575/K Appeal dismissed.