' MUHAMMAD AZAM KHAN. C.J.---The captioned appeal with the leave of the Court arises out of the judgment of the High Court dated 18th November, 2011, whereby Writ Petition No.85 of 2010 has been dismissed.
2. Necessary facts for the disposal of instant appeal are that respondent No.1, who is landlord of Shops No.11 and 12 in Ishaque Plaza, Chowk Shaheedan, Mirpur, filed an application for ejectment under section 14 of the Rent Restriction Act before the Rent Controller Mirpur on 4th February, 2005 on the ground that the tenant has violated the terms of rent agreement and is not paying the rent.
It was averred that he is landlord of 'aforesaid shops, which, were rented out to Ehtezaz Asgher in the year 1999. The amount of rent was fixed as Rs.6,000 per month. New agreement was entered on 7th August, 2002, whereby the amount of rent was enhanced and fixed as Rs.9,000 per month and term of agreement was upto 31st December, 2004. He alleged that Ehtezaz Asgher has stopped paying rent from August, 2004 to onwards. He has violated the terms of rent agreement. He has not paid rent from August, 2004 to January, 2005, therefore, he is a defaulter. He requested for ejectment of the tenant and payment of outstanding rent amounting to Rs.54,000 upto date of filing of application. After necessary proceedings the Rent Controller dismissed the application. The respondent herein filed an appeal before-the appellate authority on 2nd December, 2008. The learned District Judge, appellate authority/Rent Controller, accepted the appeal vide judgment dated 25th June, 2010 and ordered that the tenant shall hand over the vacant possession to landlord upto 24th 2010. He also ordered for payment of outstanding amount of rent at the rate of Rs.9,000 per month. Feeling aggrieved, the appellant herein filed Writ Petition No.85 of 2010. A learned.Single Judge in the High Court dismissed the writ petition on the ground that the tenant is proved to be a defaulter, the judgment of the appellate tribunal is perfectly legal and no law is violated. Hence this appeal by way of leave of the Court.
3. Sh. Masood lqbal, the learned counsel for the appellant, argued that the judgment of the High Court is not maintainable. Appellant No.2 was not a party in the original application for ejectment, but the appellate tribunal has ordered for ejectment. He argued that the ground of subletting was not taken in the application for ejectment nor there was any issue to the effect that the tenant, appellant No.1, has sublet shops to appellant No.2. There was no issue on this point, but the appellate tribunal has accepted the application on the ground that the tenant, appellant No.1, has sublet the shops which is violation of the agreement. Judgment on this ground is against the pleadings. He referred to the following cases:-- 2011 SCR 119, 1993 SCR 335, 1999 PLC (C.S.) 1156 and 2010 SCR 208.
' In Azad Govt. And 3 others v. Ayesha Shoukat and another (2011 SCMR 119) this Court held that the Court has to go by the pleadings of the parties. It has no jurisdiction to decide a case which has not been put forward by any party. Until and unless party specifically prays for a relief, such relief cannot be granted.
' The case titled Abdul Malik and others v. Muhammad Latif and others (1993 SCR 335) also lays down the same law. It was observed by the Court as under:-- ' It is well-settled principle of law that if a party proves a different case at the trial from one set up in the pleadings, such a party is not entitled to any relief and evidence of the facts not pleaded cannot be looked into."
' In Muhammad Saeed Asad v.. Hamed Saeed and 2 others 1999 PLC (C.S.) 1156 the same view was reiterated that it is well-settled principle of law that a case not set up by a party in its pleading cannot be argued before the Court at a subsequent stage.
' In Mst. Nasreen Gulab v. Mst. Tasleem Akhtar and 4 others (2010 SCR 208) it was observed that no party can travel beyond its pleadings.
4. The learned counsel for the appellants vehemently argued that the default in payment of rent is not proved. The case of the respondent, petitioner before the Rent Controller, was of no evidence.
He only presented two agreements dated 1st April, 1999 and 7th August, 2002 in evidence. Both the agreements are admitted by the parties. In the agreement dated 7th August, 2002, there is a cutting on the original document in the figure of amount of rent and period of rent. He argued that if in a registered document, there is any cutting, then there must be a certificate under section 20 of the Registration Act that the cutting is made by the. Scriber. There is no certificate on this agreement, therefore, the document is not reliable. No other evidence was produced. He referred to a case titled Khalid Rauf Meer v. Abdul Majeed and another 1997 CLC 1830.
5. The referred case is a judgment of this Court, in a rent case wherein the landlord has sought possession of shop on the ground that he needs it for his own business purpose. The tenant raised a specific plea that the ground of personal need is mala fide. The landlord has recently vacated a similar premises where he was running his business. This Court observed that when it is admitted that the landlord has vacated the previous premises within six months prior to seeking ejectment of respondent, he was not entitled to relief prayed for even if he was in genuine need for running his business in disputed shop. The case is not relevant.
6. The learned counsel for the appellants further argued that the learned appellate tribunal had no jurisdiction to summon and, peruse the original registration register. Therefore the finding of the appellate tribunal that there is no cutting in the original register is not sustainable. It was further argued 'by the learned counsel that it was a case of no eyidence. The findings recorded by the appellate tribunal were against the record. The learned counsel vehemently argued that in fact the landlord has admitted the case of appellants because the appellants filed an affidavit in support of writ petition in the High Court, which was not rebutted and if affidavit is not rebutted, the allegation made by the petitioner is deemed to have been admitted correct.
7. While controverting the arguments. Ch. Jahandad Khan, the learned counsel for the respondents, argued that the judgments of the appellate tribunal and the High Court are perfectly legal. The judgment of the tribunal was based on record. The learned single Judge in the High Court was correct in resolving that the appellate tribunal delivered the judgment on the basis of record and no illegality is found. The learned counsel vehemently argued that the default in payment of rent is proved from the record. The landlord specifically alleged that the tenant is defaulter from August, 2004. For proving the fact appellant No.1 has appended the receipts of rent, which he allegedly paid to the landlord/ respondent, at pages 46 to 49 of the paper book. The learned counsel alleged that these receipts pertain to a case titled Navid Asghar v. Aurangzeb and for the first time the rent is shown to have been paid on 16th January, 2006. The default of appellant/tenant is further proved from the fact and conduct of tenant that he has not deposited the amount of rent before the Rent Controller for the last 3-1/2 years. The learned counsel further argued that for proving the fact that the tenant is not a defaulter, he has not appeared in the Court as a witness and did not claim that he is not a defaulter. He further argued that if the judgment of the appellate tribunal is set' aside on the ground that the point of subletting was not part of pleadings, even then the default ,is proved and under law when a default is proved, the application for ejectment has to be accepted. The learned counsel lastly argued that the landlord specifically 'alleged in paras 2 and 3 of the ejectment application that the tenant is defaulter from August, 2004 to January, 2005. In the written statement the tenant has not denied this fact. This is clear admission and the application is liable to be accepted on the sole ground.
8. We have heard the learned counsel for the parties and perused the record. It is evident from the record that the respondent landlord moved an application for ejectment against appellant No.1 in the Court of Rent Controller on the ground of being defaulter. In the application there was neither any ground that the landlord has sublet the building nor there was any issue on the said point. The learned District Judge, appellate authority (Rent Controller), has ordered for ejectment, apart from default on the ground of subletting which is clear departure from pleadings of parties. The law is settled that a Court cannot travel beyond the pleadings of the parties. The Court has to go by the pleadings of the parties and it has no jurisdiction to decide a case which has not been put forward by any party in the pleadings. It was observed by this Court in a case titled Azad. Govt. And 3 others v. Ayesha Shoukat and another (2011 SCR 119) as under:-- ......The learned Judge clearly travelled beyond the pleadings of the parties. The Court has to go by the pleadings of the parties and it has no jurisdiction to decide a case which has not been put forward by any party. Until and unless the party specifically prays for a relief, such relief cannot be granted. Our above finding is supported by the judgment of this Court delivered in the case titled Beero v. Mst. Said Bi (1992 SCR 286), and Azad Jammu and Kashmir Government and 4 others v.
Messrs Spintex Limited 1998 PTD 3200. It will be useful to reproduce the observations of this Court recorded in Azad Jammu and Kashmir Government and 4 others v. Messrs Spintex Limited 1998 PTD 3200.
' The second procedural mistake is that a Court has to go by the pleadings of the parties and should not allow the parties to travel beyond them. The order of the Prime Minister which the learned Judge has ordered to be implemented does not find any mention in the writ petition. The mere fact that a photostat copy of the order was appended with the writ petition does not warrant that it should have been brought under consideration. This Court has upheld this principle in an unreported case Civil Appeal No.36 of 1994 titled Raja Muhammad Azam v. Azad Jammu ad Kashmir Co-operative Bank Ltd. And others. The relevant portion may be usefully reproduced:
(38) Ch. Muhammad Riaz Atam submitted that the very constitution of the Commission. Of Inquiry is linked with the publication of the notification in the official Gazette and, therefore the High Court should have quashed the setting up of the Commission as well as the proceedings taken by it. On the other hand Raja Muhammad Hanif Khan submitted. That although the certificate issued by the Government Printing Press was attached with the writ petition but there was no averment to that effect in the writ petition. He relied on the known principle that only that evidence can be read while pronouncing a decision which is in support of an averment in the pleadings and that no person can be allowed to produce evidence beyond his pleadings.
(39) So far as para 17 is concerned the contention of Raja Muhammad Hanif Khan is correct that there was no averment in the writ petition that the notification had not been published in the official Gazette. This point does not find mention in the judgment of the High Court which shows that this point was not raised before the High Court. It is well settled that only that evidence can be considered by the Court while deciding a case which is in support of pleadings of the parties. In absence of pleading to that effect no decision can be recorded on this point. No other convincing reason has been advanced before us to show that the High Court was not right in holding the order setting up the Commission of Inquiry was bad in law. We, therefore, maintain para 17 of the High Court judgment.'
(7) The learned Judge in the High Court granted such relief which was not part of the pleadings and not prayed for. The result of the above is that this appeal is accepted, the judgment of the Azad Jammu and Kashmir High Court is set aside, the Public Service Commission may proceed further for appointment on the posts according to rule's with no order as to the costs."
' The judgment of the appellate tribunal to the extent of subletting is not maintainable.
9. The important question for deciding the appeal is that whether the default in payment of rent was proved or not and the judgment of the appellate tribunal is based on record or not. Firstly we have to peruse paras 2 and 3 of the application before the Rent Controller and their reply in objections. The petitioner before the Rent Controller specifically alleged that the tenant stopped paying rent from August, 2004 as such he has become defaulter. In para 3 he alleged that the tenant has not paid rent from August, 2004 to January, 2005 and rent of Rs.54,000 is due to him. In the light of terms of agreement, the tenant is bound to pay rent upto 5th of every month. In reply of both the paras, the respondent therein has not specifically denied the assertions. Rule 3 of Order VIII of C.P.C, postulates that the denial must be specific. It shall not be sufficient for a defendant to deny generally in his written statement the grounds alleged by the plaintiff. The rule further lays down that the defendant must deal specifically with each allegation of fact of which he does not admit the truth. Although C.P.C. Is not applicable in the proceedings before, the Rent Controller but the general principles of C.P.C. Are applicable, therefore, the denial must be specific. Even evasive denial is no denial in the eye of law. This Court in a case titled Alain Din v. Mayor Municipal Corporation Mirpur and 4 others 2000 YLR 1891 held that evasive denial amounts to admission of allegation made in the plaint. It was observed at page 344, in para 4 as under:-- "(4) The next point as to whether the denial made by the petitioner in the written statement amounted to an evasive denial or specific denial has already been dealt with and we have reached the conclusion that denial being evasive, the same may be taken to have admitted the allegations made therein. In this view of the matter the point argued before us having been finally resolved one way or the other cannot be reopened as the scope of review is very limited and it cannot be treated as an appeal so as to reopen the points which stood already resolved."
' In a case reported as Public Health Engineering, Division and another v. Aurangzeb Khan (2008 SCR 590) it was observed as under:-- "15. Order VIII of C.P.C. Pertains to written statements and the averments made in it. Rule 3 provides that denial to be specific, the defendant must deal specifically with each allegation and fact of which he does not admit the truth. Rule 4 deals with the evasive denial: The rule provides:- '(4) Evasive denial.---Where defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received .a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances.'
' While Rule 5 deals with the specific denial which is as under:-- `5. Specific denial.---Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability.'
16. A combined reading of Rules 3, 4 and 5 of C.P.C. Shows that defendant shall specifically deny each allegation of fact which he does not admit. The facts must be specifically denied and not evasively. If such allegation of fact in the plaint is not denied specifically or by necessary implication it shall be taken to be admitted."
10. Firstly from the pleadings of paras 2 and 3 of the ejectment application, the default is proved.
Secondly appellant No.1 has relied upon the fact that he is paying rent regularly and for the purpose he has annexed copies of receipts of rent deposited in the Court of Senior Civil Judge Mirpur, Rent Controller. At page 46 of the paper book there is receipt dated 9th March, 2005, whereby rent has been deposited in the case titled Ahmed Yusuf v. Aurangzeb. At page 47, there is a receipt issued on 28th April, 2005 in the cases titled Muhammad Yunus v. Aurangzeb and Ahmed Yusuf v. Aurangzeb. At page 48, there is a receipt issued on 19-5-2005 in a case titled Navid v.
Aurangzeb. At page 49 there is a receipt issued on 15th June, 2005, whereby rent has been deposited in the case titled Raja Navid Asgher v. Aurangzeb. Similarly through receipt dated 1st August,. 2005 rent is deposited in the case titled Raja Navid Asgher v. Aurangzeb and others.
Receipt dated 25th August, 2005 pertains to case titled Raja Navid Asgher v. Aurangzeb and others.
Through another receipt dated 6th September, 2005 rent is deposited in a case titled Raja Navid Asgher v. Aurangzeb and others. Receipts dated 7th December, 2005, 16th 2006, 1st February, 2006, 1st March, 2006, 19th April, 2006, 1st June, 2006 pertain to case titled Muhammad Sajawal v. Ehtezaz Asgher. There are other receipts of year 2006 and 2007, whereby rent has been deposited in the case titled Raja Navid v. Aurangzeb. There are also some receipts pertaining to year 2009, whereby rent in the case titled Sajawal v. Ehtezaz Asgher has been deposited. A perusal of receipts shows that none of the receipts pertains to period from. August, 2004 to January, 2005, the period for which the landlord claims that the tenant is defaulter. Most of the receipts pertain to other cases filed by the appellant against one Aurangzeb. These receipts are not helpful to the case of appellant No.1 that he is not defaulter for the period pertaining to August, 2004 to January, 2005.
The tenant did not appear in the Court as a witness to disprove the allegation that he is not a defaulter while the petitioner, respondent herein, specifically alleged that the rent from August, 2004 to January, 2005 has not been paid. He has also tendered in evidence two agreements made between the parties for establishing the relationship of landlord and tenant. The default of the tenant is proved from the record and under section 14 of the Rent Restriction Act when a tenant is proved to be a defaulter, he is liable for ejectment.
11. We have also considered the argument of the learned counsel for the appellants that there is cutting on the agreement dated 7th July, 2002 in the figures of period and amount of rent. The agreement is admitted by the appellant/tenant. He disputed that the agreement was for a period of three years and not for two years. We have perused the same. It appears correct that after cutting the word "three", the word "two" has been written, but if we read the whole agreement, it says that the agreement shall be upto 31st December, 2004. There is no cutting in the figures/words 31-12-2004. The agreement was. Made on 7th August, 2002 and if we calculate from 7th August, 2002 upto 31st December, 2004, the period comes to two years and four months and not three years. It can safely be said that the word "two" was inserted before registration of the agreement.
We may observe that under section 20 of the Registration Act, in a registered document, if there is a cutting, the scriber must annex a certificate at the bottom that the cutting is in his hand, but in the instant case the execution of document is admitted. The only dispute between the parties is with, regard to period. Even if it is admitted correct as alleged by the tenant, it will not affect the validity of agreement because the application was filed after a period of three years.
12. A perusal of document dated 7th August, 2002 reveals that there is no cutting in the amount of rent. The argument of the learned counsel that the appellate tribunal illegally summoned the registration register and perused the same carries no weight. For doing complete justice the appellate Court has power to summon any record for perusal.
13. We have also considered the argument of the learned counsel for the appellants that the appellants have filed an affidavit in support of writ petition in the High Court which was not rebutted. Rule 84 of the High Court Procedure Rules postulates that apart from documents, the fact can be proved by affidavit. If a fact cannot be proved from the record, a party can prove it by filing an affidavit and if no counter affidavit is filed, the fact shall be deemed to be proved. In the instant case, the question before the High. Court was whether the District Judge/Rent Controller, appellate authority, has delivered the judgment on the basis of record or not. It may be observed that the disputed questions of facts cannot be resolved in writ jurisdiction, but where no adequate remedy is available, the Court can decide the disputed questions of facts on the basis of available record.
This Court in a case titled Ch. Muhammad Mahmood v. Aurangzeb and 6 others 1997 CLC 1708 has Observed as under:-- "(7) It was also observed in the judgment under appeal that such disputed questions could not be resolved by this Court in writ jurisdiction. We may observe that the questions involved in the present case can be easily resolved in light of the documentary evidence produced by the parties.
Even otherwise where no other adequate remedy is available it is the duty of the Court exercising writ jurisdiction to decide disputed questions of fact if it is possible to do so in light of affidavit or other evidence produced by the parties."
' The High Court after perusal of record reached the conclusion that the judgment of the appellate tribunal is based on record. When the judgment of the lower tribunal is decided on record, the writ petition could not be decided on the basis of affidavit. The aforesaid argument of the learned counsel for the appellants is misconceived.
14. The result of above discussion is that finding no force in this appeal it is hereby dismissed with costs.