' The appellant Abdul Razzak is admittedly the statutory tenant of the disputed premises consisting of a residential tenement on the second floor of a building situates at Ranchore Lines, Karachi which was transferred by the Settlement Department to the respondent Mst. Fatima Bai. On 10th September, 1971 the respondent sought the ejectment of the appellant under section 13 of the Urban Rent Restriction Ordinance, 1959 on a plea that she had served the statutory notice under section 30 of the Displaced Persons (Comp. & Rehab) Act, 1958 on 30th April, 1971, but in spite of that the appellant had failed to pay rent for the premises with effect from 18th September, '1962 upto the date of the ejectment application. The appellant denied the allegation relating to the nonpayment of rent and the service of notice in paragraph 3 of the written statement in the following terms : "Para. 3 is denied. The applicant never demanded lawful rent, the rate of rent claimed is not legal.
The opponent is liable to pay only lawful rent. The applicant is put to proof of the legal notice under section 30, D. P. Act."
' The Rent Controller then with the consent of parties framed for issues including the following issue : ' Whether the applicant has given a statutory notice under section 30 of the D. P. Act, 1958 to the opponent ?
He then took up the aforesaid issue for trial and determination as a preliminary issue. The Rent Controller gave opportunity to the parties to produce evidence on the preliminary issue and each party appeared as his own witness. Upon this evidence the Rent Controller by his order dated 23rd May, 1972 reached the finding on the preliminary issue to the effect that the respondent had served the statutory notice on the appellant. There after he passed the tentative rent order directing the appellant to deposit the arrears of rent by a certain date and to regularly deposit the current rent by the 15th of each calendar month. On 24th April, 1974, however, the respondent moved the Rent Controller for striking off the defence of the appellant on the ground that he had committed default in compliance with the order of tentative rent. Finally by order dated 5th April, 1974 The Rent Controller struck off the 'defence of the appellant and ordered his ejectment.
2. In the first appeal the appellant, ,inter alia, challenged the finding of the Rent Controller on the preliminary issue, but the learned III Additional District Judge, Karachi by, his impugned order dated 10th April 1975 dismissed the appeal and upheld the order of ejectment against the appellant.
Hence this Second Appeal.
' The sole contention raised in this Appeal is that service of the statutory notice having been denied by the appellant, the respondent was under law required to prove the service of the notice, but this fact has not been proved by evidence according to law. It is urged that the question of proof of this fact was approached by the two Courts below in entirely illegal manner. 'Reliance in this behalf was placed on Gulzar Begum v. Sairah Bibi (1). In order to appreciate this contention it will be necessary to first refer to the evidence produced by the parties. The material part of the evidence of the respondent, who as stated above was the sole witness produced on her side, is as follows :- "I served the notice under section 30 of the D. P. Act on the opponent on 27th April, 1971. I produce office copy of the said notice as {{FOOT NOTE}}
(1) 1972 SCM R 251 {{FOOT NOTE}} Exh. 8, postal acknowledgement receipt as Exh. 9 and the postal receipt of the said notice as Exh.
10."
' The appellant in his deposition denied that any notice about the transfer of the premises to the respondent was ever served on him. In the cross-examination he was confronted with Exh. 9 and he denied that the signature on the acknowledgment receipt was his signature but he admitted that except for the word "Mohan Lal" in the name of the building the rest of the address mentioned in the A/D receipt is correct. This is all the evidence on the question.
4. It was strenuously argued on behalf of the respondent that the finding on the question of service of the statutory notice is a question of fact and, therefore, the concurrent findings of the two Courts below are not liable to be examined in second appeal. In support of this submission counsel referred me to a number of decisions ranging from the case of Abdul Majid v. Khalil Ahmed (1) in which it was held that the High Court has no jurisdiction to entertain a Second Appeal on the ground of an erroneous finding of fact, however, gross and inexcusable the error may seem 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 merits. It was, however, clarified in this judgment that a fallacy in appraising the evidence as to a fact is merely an error in coming to a finding as to that fact and, therefore, not an error of law justifying interference in Second Appeal unless it amounts to a material mistaken assumption. Clearly, therefore, a mistaken assumption of fact is a ground for 'interference even in regard to a finding of fact in Second Appeal. There can be no cavil against these well-settled propositions of law. I find from the perusal of the two orders passed by the Courts below that no binding finding of fact was concurrently reached by them. I have carefully read the orders passed by the two Courts below and I find that the learned Rent Controller gave a finding in favour of the respondent on two grounds namely, (i) that the address of the appellant was correctly mentioned on the letter containing the notice ; and (ii) that if his plea is that his signature is forged, the onus lay upon him to prove forgery. The Rent Controller, upon this view, invoked the presumption of service under section 114 of the Evidence Act. The learned Additional District Judge without examining the aforesaid reasons adopted by the learned Rent Controller proceeded to dispose of the question in an entirely unwarranted manner. He took the view that no plea was taken by the appellant in his written statement expressly denying the service of notices and, therefore, he rejected the question as having been raised subsequently as a bogus plea. The case of Gulzar Begum was cited before him, .But he refused to follow the rule laid down therein on the ground that the view expressed therein was restricted to the facts of the reported case. In his opinion since the appellant did not challenge the order passed on the preliminary issue immediately by appeal nor an appeal was filed against the order of tentative rent, he drew the inference that the appellant was not genuinely pursuing his objection as to non-service of notice.
Finally without taking into consideration the evidence on record, the learned Judge proceeded to compare the disputed signature on Exh. 9 with the signature on the written statement of the appellant and reached the conclusion that the author of both these signatures appears to be the same, since the appellant {{FOOT NOTE}}
(1) PLD 1955 FC 38 {{FOOT NOTE}} admitted that he knew very little English and, therefore, there is difference in the various signatures put by him.
5. In view of the above I am clearly of the opinion that the Rent Controller did not undertake the appraisal of the evidence and merely reached his conclusion by means of the statutory presumption under section 114 of the Evidence Act. Clearly, therefore, he was relying on an assumption of facts. The learned Additional District Judge did not also affirm the finding by any independent appraisal of evidence, but based his conclusion on his own comparison of signatures under section 73 of the Evidence Act. There is, therefore, no concurrent finding by the two Courts below. In the case of Gulzar Begum v. Sairah Bibi referred to above, the factual position was precisely the same as in the present case, i. e. The appellant admitted that the notice was properly addressed, but denied that the notice was received by her or that the acknowledgement receipt bore -her signature. Notwithstanding this, the Rent Controller held that the notice was proved to have been served and the appellant had failed to rebut the presumption of service of notice. This view was upheld by the District Judge and the High Court in Second Appeal. Their Lordships of the Supreme Court, however, disagreed with the aforesaid view and held that the appellant had rebutted the presumption by appearing in Court and by denying the service of notice. The following observations were then made :- "In these circumstance, the trial Court should have got the ,signature of the appellant compared with the signature on the admitted document. It should have further given an opportunity to the respondent to produce the postman to prove that the notice and the acknowledgement due was offered to the appellant for service and that she signed it. In view of this, the learned trial Court has failed to approach the matter in accordance with law and has fallen into an error."
' The order was, therefore, set aside and the case remanded back to the Rent Controller for a fresh decision in the light of the aforesaid observations.
6. The position of the evidence on record in the present case is that apparently the respondent is not conversant with the signature of the appellant and could not have claimed to have been present when the signature on the disputed document was made. In the circumstances, s far as the respondent's evidence is concerned, there is nothing on record even to suggest that the disputed signature is that of the appellant. In fact except the production of the document as acknowledgement receipt nothing was stated by the respondent that the said document bears th signature of the appellant. On the other hand, the appellant in his evidence has positively denied that the document bears his signature. In C this state of the evidence the decision of the important question whether the notice was received by the appellant was disposed of by the learned Additional District Judge solely upon the basis of his own comparison o the signature with the signature of the appellant on the written statement. I am unable to accept this as a safe mode of reaching a conclusion on the question of fact requiring determination in the present case.
Additionally the learned Additional District Judge disposed of the whole question by satisfying himself with comparison of the disputed signature with reference D to only one admitted/document viz. The written statement whereas, a pointed out by the learned counsel for the respondent himself, there were several documents on record containing admitted signatures of the appellant with which the disputed signature can be compared. The inference drawn by the learned Additional District Judge is purely subjective and totally lacking reasons which impelled him to hold that the signature was that of the appellant. He has not even stated that the two signatures appear to be similar : on the contrary he has explained away the differences between the two. There is thus no rational basis discernible in the judgment for holding that the signature is that of the appellant. The hazards present in such a mode of proof are quite apparent and need not be emphasized. I also cannot agree with the learned Additional District Judge for his reasons in concluding that the plea of non-service of notice has been raised subsequently. Clearly the question has been raised in the written statement and indeed a preliminary issue was framed on account of this plea urged by the appellant. The learned Judge was also wrong in holding that since no appeal was filed against the finding on the preliminary issue or the 'tentative rent order, the inference was that the appellant was not pressing this plea. No appeal lay upon orders of such nature and, therefore, there was no question of the appellant challenging these orders by way of appeal before final disposal of the case by the Rent Controller. For these reasons the learned Additional District Judge was wrong in refusing to follow the Supreme Court Judgment in the case of Gulzar Begum cited before him.
7. On behalf of the respondent reference was made to S. M. Zahir v. Fazal Ali (1) where it was postulated that there is no rule of law which requires examination of expert in every case. The proposition is well, settled and cannot be disputed. But the facts of that case were that the trial Court after comparing the disputed and the admitted signatures expressed the view that the resemblance between. The two 'was so visible" that he did not feel it necessary to call for expert examination of t he documents. It cannot, therefore, be said that in every case the question can be disposed of by mere comparison. It may be here pointed out that in Kessarbai v. Jethabhai Jivan
(2) it was laid down that "it is unsatisfactory' and dangerous to stake a decision, in a case where there is a direct conflict of testimony between parties as to general character of a signature, on the correct determination of the genuineness of the signature by mere comparison with the admitted signatures, specially without the aid in evidence of icroscopic enlargements or any expert advice."
In my opinion, this rule is fully attracted in the present case in view of the fact that there is no assertion in the evidence of the respondent that the document in question bears the signature of the appellant, Another' aspect of the matter that his disturbed me is that, from the record it appears that no party had moved the Court for a comparison of -signatures and it seems the learned. Additional District Judge undertook the exercise in th absence bf parties while writing the judgment. The question that arise here is : Does it not violate the rule of natural justice in so far as th affected party was not given an opportunity of ,hearing to show abseil of similarity in the two signatures ? It seems to me 'to be more consonant with the requirements of justice for a Court to undertake the exercis after notice to the parties.
8. It was finally urged on behalf of the respondent . That in absence of an objection as to the mode of proof taken at the proper time when the {{FOOT NOTE}}
(1) 1974 SCM R 490 (2) A 8.1928 FC 277 {{FOOT NOTE}} document was being received in evidence, the appellant cannot be allowed to raise the question.
Reliance in this behalf has been placed on Mohammad Yousaf v. S. M. Ayub (1) and Abdullah v.
Abdul Karim (2). In the first place the facts of these cases are distinguishable. Secondly the question of the proof of service was itself a fact in issue in the present case and, therefore, no question of objection to the mode of proof was involved. Finally, as pointed out, the respondent in her evidence did not even attempt to prove the document in question by asserting that the document was signed by the appellant. It appears to me that since the respondent was claiming that the document in question is the acknowledgment receipt of the notice sent by her, no objection could possibly be F taken for the reception of the document in evidence and, therefore, the absence of objection will not constitute an estoppel against the appellant as to the mode of proof thereof. The very fact that an issue was raised as to the non-service of notice would seem clearly to amount to an objection that the document is not signed by the appellant in token of receipt of the notice. There is, therefore, no substance in this contention of the respondent.
9. In the result, this appeal succeeds and the impugned orders passed by the two Courts below are set aside. The case shall be remanded to the Rent Controller for a fresh decision on the preliminary issue after giving opportunity to the parties to produce additional evidence, if any, in the light of what has been stated in this judgment. The 'Rent Controller shall dispose of the case as far as possible within for months after he receives the records from this Court. In the circumstances of this case, the costs shall follow the event. {{FOOT NOTE}}
(I) PLD 1972 Pesh. 1975 (2) PLD 1968 SC 140 {{FOOT NOTE}}