' This order shall be read in continuation of my order, dated the 19th January, 1980, passed in the present appeal (S. A.
0. No, 637 of 1978) and order, dated the 17th December, 1980, made in petition for review of the said order, namely, Review Application No, 19/C/1980.
2. The appellant in the instant appeal, namely, Muhammad Yusuf was occupying certain premises as a tenant under Mst. Bashiran, predecessor-ininterest of respondents Nos. 2 to 8, Muhammad Shafi and others. Respondent No. 1, Muhammad Hassan, hereinafter referred to as the respondent, sought eviction of the petitioner alleging that he had purchased the disputed premises from Mst.
Bashiran and thus the relationship of landlord and tenant had been created between him and the appellant. This relationship was denied by the appellant. It was, however, held by the Rent Controller, who was seized of the ejectment application filed by the respondent, that the respondent bad purchased the property in question from Mst. Bashiran and, therefore, he was a tenant of the respondent qua those premises. His finding was upheld by an Additional District Judge while dismissing the appellant's first appeal against the order of the learned Rent Controller.
He has, therefore, filed the second appeal in hand.
3. In their reply to the ejectment application, it was stated by the appellant as well as Mst. Bashiran, who respondents in the said application were, that the disputed premises had not been sold by her (Mst. Bashiran) in favour of the respondent. The respondent, however, produced oral and documentary evidence to establish that he had purchased the above property from Mst. Bashiran.
His documentary evidence included a copy of the sale deed alleged to have been executed by Mst.
Bashiran in favour of the respondent. The respondents in the ejectment application also produced evidence in rebuttal. The two tribunals below, however, relied on the respondent's evidence in preference to the evidence in rebuttal thereof and reached the conclusion that the property in dispute had been purchased by the respondent and thus he was the appellant's landlord in respect of the said property.
4. It was contended by learned counsel for the appellant that the copy of the sale deed produced by the respondent and relies upon by the two tribunals below was a photostat copy of a certified copy of the sale deed and since the loss of the original sale deed had also not been established, the said copy was not admissible in evidence in view of the provisions of section 65 of the Evidence Act, 1872. On the other hand, it was urged by learned counsel for the respondent that since no objection was taken by the appellant regarding the admissibility of the said copy when it was received in evidence, he could not raise that objection at the stage of second appeal. It was also maintained by learned counsel for the respondent that the Evidence Act was not applicable to proceedings before the learned Rent Controller. For this proposition he placed reliance on Javaid Iqbal v. Rana Muzaffar Khan (1).
5. While replying to the submissions made by learned counsel for the respondent, it was urged by learned counsel for the appellant that although the Code of Civil Procedure and the Evidence Act were not strict senso applicable to proceedings before the learned Rent Controller yet the learned Rent Controller, who was basically a Civil Judge, was bound to follow the High Court Rules and Orders. He then relied on the first paragraph of rule 11 of Chapter I-G of the High Court Rules and Orders, Volume I, which is to the following effect :- "11. As regards the mode of proof the provisions of the Indian Evidence Act should be carefully borne in mind. The general rule is that document should be proved by primary evidence, i,e, the document itself should be produced in original and proved. If secondary evidence is permitted, the Court should see that the conditions under which such evidence can be let in, exist."
' It was maintained by learned counsel for the appellant that since according to the said rule the provisions of the Evidence Act were required to be followed by the Civil Judges, the learned Rent Controller should not have {{FOOT NOTE}}
(1) 1976 SCMR 229 {{FOOT NOTE}} ' taken the copy of the sale deed into account unless the loss of the original sale deed had been established. He relied on Mumtaz Begum v. Sh. Inayat Ullah (1) to support his argument.
6. In the case of Mumtaz Begum, a learned Rent Controller of Lahore, who had heard an ejectment application, wrote judgment on that application before he was transferred to Sheikh upura and the judgment was thereafter announced by another learned Rent Controller of Lahore in terms of rule 6 of Chapter 11-A of High Court Rules and Orders, Volume I, which reads as under :- "6. Every District Judge or Sub-Judge proceeding on leave or transfer, must, before making over the charge, sign a certificate that he has written judgments in all cases in which he has heard arguments. Should an officer be forced to lay down his charge suddenly, he shall, nevertheless, write the judgments in such cases, and send them for pronouncement to his successor."
' One of the objections raised against the judgment of the learned Rent Controller was that it was not announced by the learned Rent Controller who had delivered the same. This objection was repelled with the following observation:- "It is, no doubt true that according to the view taken by their Lordships of the Supreme Court the Rent Controller was a quasi-judicial authority, but, at the same time, he is appointed as a Rent Controller because he holds the office of a Civil Judge in this Province. Even though under the Ordinance no rules or procedure has been laid down for the conduct of the cases by a Rent Controller, but it will be too much to say that the Civil Judge who are appointed as Rent Controllers are not bound by the instructions issued by the High Court so far as the question of writing judgments and drawing up of decrees in civil cases are concerned. It seems to us that these rules are binding on the Civil Judges, whether they act as Rent Controllers or otherwise. Since in the present case the learned Rent Controller has complied with the above-mentioned rule, it cannot be said that the order pronounced by him later on after his transfer to Sheikhupura is a nullity in the eye of law or has no validity."
' Rule 6, which was involved in the case of Mumtaz Begum, related to instructions in respect of the practical working of judicial officers and did not deal with the question of applicability of any law.
On the subject dealt with in that rule, to my mind, there is no provision in any law. The observation made in the case of Mumtaz Begum, therefore, has little bearing on the question relating to the applicability of the Evidence Act to proceedings before the Rent Controller.
7. There are number of rules in the High Court Rules and Orders exhorting upon the Civil Judges to comply with the provisions of the Code of Civil Procedure and the Evidence Act. The said rules were framed due to the reason that the Civil Judges were bound to follow the said laws in deciding the civil cases. It cannot, however, be said that in view of these rules a Rent Controller, who is basically a Civil Judge, is bound to follow the provisions of the said Code and the Act. In Khadim Mohy-ud- Din and another v. Ch. Rehmat Ali Nagra and another (2), it was held by the Supreme Court that in deciding cases before him the Rent Controller is not required to follow the procedure as laid down in the Code of Civil Procedure. It was {{FOOT NOTE}}
(1) PLD 1969 Lah. 16 (2) PLD 1965 SC 459 {{FOOT NOTE}} ' also observed that the inquiries before him may be such as are conducted by an executive officer.
In Ahsanul Haq etc. v. Abdul Rahim (1), it was held by the Supreme Court that the plea regarding the provisions of the Code of Civil Procedure being applicable to cases under the West Pakistan Urban Rent Restriction Ordinance, 1959 was misconceived. In Chaudhry Muhammad Ali & Co. v. Dr. Sirajul Haq and 2 others (2) and Safdar Ali v. Muhammad Ali (3) also the view expressed was that the provisions of the Code of Civil Procedure were inapplicable to proceedings before the Rent Controller. It has also been ruled in the case of Javaid Iqbal, cited by the learned counsel for the respondent, that the Code of Civil Procedure and the Evidence Act are not applicable to proceedings before the learned Rent Controller. It is, therefore, not possible to stretch the provisions of the High Court Rules and Orders to such an extent as to make the Code of Civil Procedure and the Evidence Act binding on the Rent Controller. I would, therefore, with respect, relying on the opinion delivered in the case of Javaid lqbal, hold that the learned Rent Controller was not obliged to strictly comply with the requirements of the Evidence Act in the matter of receiving copy of the sale deed in dispute in evidence.
8. It is also to be noted that when the Photostat copy of sale deed was received in evidence no objection was raised by the appellant. If he had objected to its admissibility, the respondent would have taken care to remove his objection by producing evidence regarding loss of the original document and placing its certified copy on the record. The aforesaid objection was also not advanced before the learned Appellate Authority. It is, therefore, too late in the day for the appellant to object to the admissibility of the copy in question.
9. Whether or not the relationship of landlord and tenant exists between the appellant and the respondent was a question of fact on which the two tribunals below have recorded a concurrent finding against the appellant. The only plea on which the said finding has been questioned before me is that the copy of the sale deed referred to above was not admissible in evidence but, for reasons given above, the said plea is of no consequence. The concurrent finding recorded by the two tribunals is, therefore, not disturbed.
10. The case shall now be decided by the Rent Controller in the light of my order, dated the 19th January, 1980. Since the parties have been litigating for a long time, the learned Rent Controller is directed to re-decide the ejectment application expeditiously and in any case within six months of the receipt of this order. Case remanded. {{FOOT NOTE}}
(1) 1979 SCMR 338 (2) PLD 1972 Quetta 5
(3) PLD 1974 Quetta 1 {{FOOT NOTE}}