' RANA ZAHID MAHMOOD, J.---This is a second appeal against order, dated 7-2-2008 passed by learned District Judge, Faisalabad, whereby he dismissed an appeal filed by the appellant against order of ejectment passed on an application for ejectment filed by respondent against the appellant from the shop in dispute forthwith vide order, dated 25-9-2007.
2. Brief facts are that in the application filed by the respondent for ejectment of the appellant/respondent from shop in question, the appellant denied the, relationship of landlord and tenant between the parties and took up the plea that he was tenant under one Zaheer-ud-Din, a brother of the respondent and had been making payment of the monthly rent to him and was not a tenant under the appellant. He took up said plea on the ground that said shop in the family partition had come to the share of late Zaheer-ud-Din, brother of the appellant. Issue in this regard about the existence of relationship of landlord and tenant between the parties was framed and the respondent then himself appeared as P. W.1 and produced Muhammad Amin as P.W.2 and Muhammad Saleem as P.W.3, whereafter the learned counsel for the respondent/appellant closed the evidence of the respondent and tendered in evidence some documents including the ownership documents from the Excise and Taxation Department and Iqrarnama regarding tenancy placed on record as Mark "A". The rest of the documents are Exh.A.1 to Exh.A.7. The appellant/respondent produced Iftikhar Hussain as R.W.1 and appeared himself as R.W.2 in support of his plea of non-existence of relationship of landlord and tenant and also produced one Muhammad Ramzan as R.W. 3 and then closed the evidence. As stated earlier, the ejectment order was passed by the learned Rent Controller, which was affirmed by the learned District Judge on appeal filed by the appellant.
3. Learned counsel for the appellant has submitted that in fact the appellant has been condemned unheard as the Iqrarnama about the tenancy produced by the respondent was never produced during the evidence by the P.Ws. And was produced before the Rent Controller at the time of statement of the learned counsel for the respondent and even then it was not exhibited but was marked as "A". He submitted that since it was not an exhibited document, therefore, the appellant could not take it seriously and it was for the first time that the learned District Judge, Faisalabad, while deciding the appeal filed by the appellant against the ejectment order, took judicial notice of said Iqrarnama karayadari between the parties and submitted that as per clause (8) of said agreement, in case of dispute between the parties, the matter was required to be referred to arbitration and submitted that said agreement between the parties about referring the matter to arbitration was never resorted to. He therefore, submitted that the impugned order passed by the learned District Judge is illegal and as such the appeal is liable to be accepted and submitted that case be remanded for fresh decision after referring the matter to the arbitration.
4. Learned counsel for the respondent has vehemently opposed the arguments advanced by the appellant's counsel and submitted that section 34 of Arbitration Act prohibits, reference of dispute to the arbitration after filing of written statement in legal proceedings, therefore, in view of the clear cut statutory bar, the matter could not be referred to the arbitration. Further submitted that evidence on record has proved the tenancy between the parties beyond any doubt and submitted that the concurrent finding of the two Courts below do not admit any interference neither any exception can be taken to the taking of judicial notice of the agreement to sell between the parties by the learned District Judge, Faisalabad, vide impugned judgment and submitted that appellant had sufficient knowledge of the Iqrarnama Mark "A" about the tenancy which is on record yet he did not care and did not agitate his point before the learned Rent Controller and also first appellate Court, therefore, is debarred from taking up this plea for the first time before this Court. In support of his contentions, he has referred to Pakistan International Airlines Corporation v. Messrs Pak Safe Drycleaners (PLD 1981 SC 553), Cantonment Board, Kharian v. Messrs Jafri Traders Corporation (2006 SC 693), Muhammad Farooq v. Nazir Ahmad and others (PLD 2006 SC 196). Also referred to Nuricon Union (Pvt.) Limited v. Muhammad Naseer Sajjad (2005 CLC 882 (Lahore)), Commissioner of Income Tax v. Mst. Sakina Karim (1979 CLC 644 (Lahore)) and Masood Hussain Anwar v. Sheikh Muhammad Amin (1982 CLC 1777 (Lahore)). He also submitted that Mst. Bushra Zaheer, widow of late Zaheer-ud-Din also appeared before the learned Controller on 2-7-2007 and made statement on oath that the appellant was not tenant under her late husband and had never made any payment of rent to her or her husband. He therefore submitted that no exception can be taken to the non-crossexamination on the statement of the said widow as said statement was recorded in the presence of the learned counsel for the appellant but he did not make request to the Rent Controller to allow him to cross-examine her. He therefore submitted that petitioner is estopped by his own conduct to agitate at this stage of second appeal that he was not given opportunity to cross-examine said widow in this respect. Learned counsel made reference to Abdul Hameed and others v. Rais Karim and others (PLD 1985 Quetta 112), Diwan Singh and others v. Emperor (AIR 1933 Lahore 561) and Union of India v. T.R. Verma (AIR 1957 SC 882) in this regard and has prayed for the dismissal of the appeal.
5. I have heard the arguments, perused the record and also the case-law cited at the Bar. There is concurrent finding of fact about the proof of relationship of landlord and tenant between the parties on the basis of evidence adduced by the respondent who then also produced title deeds of the suit property in his favour and the documents from the Excise and Taxation Department in the statement of learned counsel for the respondent after the oral evidence of three prosecution witnesses of the respondent and the learned counsel tendered said documents in hi: statement available on record as Exhs.A/I to A/7 apart from the copy of the agreement of tenancy between the parties and it is noteworthy that this statement of the counsel for the respondent for placing on record said documents was made on 9-7-2007 whereas appellant then produced his evidence controverting the evidence of the respondent on 23-7-2007 up to 26-7-2007 when the learned counsel for the appellant also made statement closing the evidence of the appellant, how could the appellant be permitted to agitate at this 'stage of second appeal that he was not given opportunity to examine Mark "A", the alleged agreement of tenancy between the parties and was condemned unheard by the learned District Judge, Faisalabad, by taking judicial notice of the same. Since the alleged agreement of tenancy between the parties was placed on record in the statement of the learned counsel for the respondent and was Marked "A", it had come on the record of the ejectment application as a corroborative piece of evidence to the oral evidence already led by the respondent, therefore, it was for the petitioner to be vigilant and to A counter the document of agreement of tenancy through cogent and strong evidence; whereas it is also important to mentioned that Mst. Bushra Zaheer, widow of late Zaheer-ud-Din appeared before the learned Rent Controller with her affidavit and made statement that the appellant was never tenant under her late husband neither had ever made payment of any monthly rent to the late husband or to the widow. It is worth mentioning that in the proceedings of said date when her statement was recorded by the learned Rent Controller, counsel for the parties were present and the counsel for the appellant did not make any request to the Rent Controller for giving him an opportunity to cross-examine said widow. The statement, therefore, is very much on record in support of the respondent's claim of the tenancy between the parties. Onus of issue to prove the tenancy was on the respondent. He produced three P. Ws. Including himself as P.W.1. Evidence has correctly been appreciated by the learned Rent Controller including the evidence adduced by the appellant. The learned District Judge affirmed the ejectment order by dismissing the appeal filed by the appellant.
6. Section 34 of the Arbitration Act clearly provides a bar for moved in the first instance by the affected party prior to filing of written reference to arbitration in case the application for arbitration was not statement/reply in the proceedings before the Rent Controller then prohibits a party to subsequently claim a reference to arbitration. Reference in regard can conveniently be made to Pakistan International Airlines Corporation v. Messrs Pak Safe Dry Cleaners (PLD 1981 SC 553) referred to by the learned counsel for the respondent along with latest case-law on the subject reported as Cantonment Board Kharian v. Messrs Jafri Traders Corporation (2006 SCMR 693) and Muhammad Farooq v. Nazir Ahmad and others (PLD 2006 SC 196). Even otherwise the appellant appears to be a negligent person who despite the fact that said document of tenancy between parties had been placed on record before the learned Rent Controller in the statement of the learned counsel for the respondent on 9-7-2007 whereafter the evidence of the petitioner was recorded on 23-7-2007 and 26-7-2007, the appellant did not agitate against the said agreement to sell on the ground that it was not exhibited and was only marked by the Rent Controller as "A", therefore, could not be read in evidence; whereas . I do not agree with the learned counsel for the appellant on the point as any document brought on record by any of the parties with the approval of the concerned Court whether in the shape of an exhibited or marked document the same can be taken into consideration D of course in accordance with law and in the instant case there was no bar in the way of the learned District Judge to take into consideration said document through judicial notice. Even otherwise, if for the sake of argument said document is kept out of consideration altogether, even then the appellant has no case and oral evidence adduced by the respondent including the statement of Mst. Bushra Zaheer along with the rest of the exhibited documents including the sui gas and electricity bills and title deeds and the documents of Excise and Taxation Department clearly go to prove that the property was in the name of the respondent and was never in possession or in occupation of late Zaheer-ud-Din a brother of the respondent and, therefore, mere argument that the petitioner was tenant under late Zaheer-ud-Din has no legs to stand upon. Even otherwise it is important to mention that on one hand the appellant denies relationship of landlord and tenant between the parties and, on the other, he relies on condition No.8 of agreement of tenancy placed on record as Mark "A" for reference to arbitration which means an admission of existence of said agreement of tenancy between the parties.
Therefore, the appellant is E precluded from blowing hot and cold in the same breath. The evidence led by the parties has been correctly appreciated by the two Courts below and no exception can be taken to the concurrent findings of the two courts below in the absence of any cogent material justifying the disagreement with the said findings. The case law referred to above by the learned counsel for the respondent also is a strong indicator of the fact that the proceedings before the Rent Controller initiated by the respondent through F ejectment application and the submission of the appellant to the jurisdiction of the Rent Controller by filing written statement and subsequently joining of proceedings and leading evidence debarred him from agitating said point for the first time before this Court. Reference in this regard can be made to Hakim Khan v. Aurangzeb and another (PLD 1975 Lahore 1170) and case of Mst. Iqbal Begum and 8 others v. Muhammad Yousaf and 7 others (PLD 2003 Lahore 255). No exception can thus be taken to the impugned order. The second appeal is without merit and is, therefore, dismissed with no order as to costs.