' Revision Application Nos. 144/77, 145/77, 58/78, 61/78, 90/78 and 263/78, arises out of the judgment passed by the Court of Small Causes, Karachi granting the claim of the respondents for recovery of rent for different as detailed below. The applicant in all these revision applications is the tenant of the respondent. Revision Application No, 144/77, arises from a Suit No, 316/76 filed by the respondent for recovery of Rs, 2,960 being the arrears of rent for the period commencing from 1st November, 1975 to 3rd June, 1975, Revision Application No, 145/75 areas from Suit No, 482/75 filed by the respondent for recovery of Rs, 330 being the arrears of rent for the period commencing from 1st February, 1975 to 31st October. 1975, Revision Application No, 58/78 arises from Suit No, 67/77 filed by the respondent for recovery of Rs, 2,590 for the period from 1st February, 1977 to 31st August, 1977.- Revision Application No, 61/77 arises from D. W. No, 291/77 filed for recovery of Rs, 2,590. Revision Application No, 90/7 arises out of the D. W. 3/78 filed for recovery of Rs, 1,480 and Revision Application 263/78 arises out of the D. W. 209/78 filed for recovery of Rs, 1,492.
2. So far as Revision Applications Nos. 144/77 and 145/77 are concerned they have been decided on the basis of the evidence recorded in Suit No, 482/75. The rest of the D. Ws. Have been decided on the basis of the evidence recovered in Civil Suit No, 61/77 and D. W. Application No, 291 of 1977. As the controversy and points of dispute involved in all these matters are common. I propose to dispose all of them by a single judgment.
3. Briefly the facts are that the opponent had filed an ejectment case No, 1234/75 against the petitioner which was decreed ex parte but the same has been set aside. During the pendency of ejectment proceeding the respondent seems to have filed all these cases for recovery of rent. In suit No, 482/75 (Rs, 145/77) the petitioner filed his written statement stating that he had paid rent up to February, 1975, However, in evidence he has stated that it should be May, 1976. He has pleaded that the respondent had removed electric fans and other amenities and did not repair and whitewash the premises which was his obligation and therefore, he was liable to pay rent at the rate of Rs, 200 per month instead of Rs, 370. During the pendency of the suit the applicant made an application under Order VI, rule 17, C. P. C. Dated 26th January, 1977, seeking amendment in the written statement by adding that the petitioner along with one Muhammad Shoaib is a joint tenant since January, 1972. The tenancy was oral and no written agreement was executed between the parties. He further wanted to amend that the petitioner and the joint tenant had regularly paid rent to the opponent up to May, 1976 and that the ejectment case had been filed on false grounds and co-tenant Muhammad Shoaib has not been impleaded as a party thereto, who has made an application under Order XXI, rule 99, C. P. C., in execution proceedings which were instituted after ex parte order of ejectment was passed against the applicant. Although the application averred that co-tenant Muhammad Shoaib was a necessary party no application was made by either of them to join him as a party. The application for amendment in the written statement was dismissed by the learned lower Court.
' In all the remaining proceedings which were subsequent to Suit No, 482/75 the petitioner has maintained that Muhammad Shoaib was a co-tenant. This plea has been rejected by the learned trial Court, ant' the respondents claim was allowed in all the proceedings.
4. The learned counsel for the petitioner has contended that the learned trial Court has mis- appreciated the evidence and should have held that Muhammad Shoaib was a co-tenant and secondly that the learned trial Court has illegally rejected a receipt Exh. 29 which was a material evidence to prove that the entire rent has been paid to the respondent. In Suit No, 482/75 subject- matter of R. A. 145/77 the petitioner's application for amendment of written statement to introduce a plea of co-tenant of Muhammad Shoaib was rejected. However, in subsequent proceedings this plea was specifically taken and rejected by the learned lower Court. To substantiate his plea that Muhammad Shoaib was a co-tenant, Mr. Nisar Ali, learned counsel for the petitioner- has relied upon the fact that Muhammad Shoaib had paid rent for the months of April, May and June,1974, through his cheques (Exhs. Nos. 33/1 to 33/3) he has further stated that for the months of July, 1974, August, 1974, February and March, 1976, June to August, 1972, September, 1972, November, 1972, December, 1972, October, 1972, January, February, March and April, 1973, February, March, April, 1976, July, 1974, the rent was paid by Muhammad Shoaib and receipts were executed by the opponent.
The opponent on the other hand has denied having executed these receipts. On the basis of this evidence the petitioner wants to draw the inference that Muhammad Shoaib was a co-tenant. It may be mentioned that Muhammad Shoaib is the brother-in-law of the petitioner and is residing with him. The tenancy agreement Exh. 20 produced by the respondents has been denied by the petitioner. The most disputed document is Exh. 29 a receipt dated 22nd February, 1976 said to have been signed by the respondent. The respondent has denied its execution. By this receipt the petitioner has attempted to establish co-tenancy and payment of rent. It is this comprehensive nature of the document with other attending circumstances that does not inspire confidence in its genuineness. This receipt unlike previous receipts specifically mention arrears as nil. It purports to acknowledge receipt of rent for the months of February, 1976 to May, 1976, which means that an advance rent for three months has been paid. Another distinguishing feature of this receipt is that it is attested by two witnesses which is not the case in other receipts produced by the petitioner.
The learned counsel for the respondent while challenging the validity of these receipts has stressed that Muhammad Shoaib was never a tenant of the respondent and if rent for three months were paid by him through cheques, then it does not entitle him to claim tenancy. The other receipts produced on behalf of the petitioners have been denied by the respondent. Mr. Khalilur Raman the learned counsel for the respondent has relied upon certain facts on record to repudiate the claim of co-tenancy. He has submitted that Suit No, 482/75 was filed on 5-11-1975, and the petitioner filed written statement on 28-2-1976 but there was no mention of co-tenancy or payment of rent up to May, 1976. In his application under Order XXXVIII. Rule 6, C. P. C. The petitioner ,did not refer to these facts. He further stated that when the ejectment case was filed before the Controller no such plea was taken that Muhammad Shoaib was a co-tenant. Further the petitioner himself filed an application before the Controller for fixation of rent but there also he did not state that Mohammad Shoaib was a co-tenant. After an ex parte decree was passed in Suit No, 482/75 the petitioner filed an application under Order IX, rule 13, C. P. C. And for the first time introduced the plea that Muhammad Shoaib is a co-tenant. The petitioner had filed Rent Case No, 992/75 but Muhammad Shoaib was not mentioned as a co-tenant nor was there any reference to the joint tenancy. This case was filed for fixation of rent as the respondent had allegedly disconnected the amenities attached to the premises. According to the statement of Mr. Khalilur Rahman Advocate, this application was dismissed by the Controller on 8th September, 1980. In Rent Case No, 1234/75 which was filed for the ejectment of the petitioner, he did not disclose that Muhammad Shoaib was a cotenant and all the proceedings including an appeal were filed by the petitioner. It is further to be noticed that when the petitioner filed application for setting aside ex parte order of ejectment passed in Rent Case No, 1234/75 (Exh. 3 of 1975), in para. 8 of his affidavit it was vaguely stated that ejectment application against only one of the joint tenant is not maintainable. The name of the joint tenant was not disclosed, however, in subsequent para, it was stated that rent for certain period was paid by Muhammad Shoaib. In view of the above facts, it is contended that if Muhammad Shoaib was really a co-tenant this fact should have been disclosed at the earlier opportunity. The facts stated above reflect on the conduct of the petitioner and Muhammad Shoaib which was neither normal nor in the manner as an ordinary prudent man will not in the circumstances in which they were placed. The petitioner was faced with litigations one after the other including ejectment and recovery of rent but he neither pleaded nor disclosed in the rent case as well as in Suit No, 482/75 that tenancy was jointly with Muhammad Shoaib. It seems that the rent for three months namely April, May and July, 1974, were paid by Muhammad Shoaib through the cheque which is not disputed by the respondent. The petitioner as an afterthought and with a view to create complication and hurdles in the ejectment case as well as in the suit for recovery of rent, namely No, 482/15 introduced Muhammad Shoaib as a co-tenant at a very late stage. The theory of joint tenancy was for the first time introduced in Suit No, 482/75, when the petitioner moved an application on 26th January, 1977, for amendment of his written statement.
The learned trial Court dismissed the application on 2nd November, 1974 holding that it would completely change the defence and a new case was being set up which was contrary to the facts stated and admitted by the petitioner in his written statement. It is also to be noted that Muhammad Shoaib also did not take any step in any proceeding and remained a silent spectator till the ex parte order of ejectment was passed and when execution proceeding was drawn.
Muhammad Shoaib filed an application under Order XXI, rules 99 and 1CO, C. P. C. The learned counsel for the petitioner has emphasized that the fact that the rent was being paid by Muhammad Shoaib for which receipts were issued on behalf of the respondent, the claim of Muhammad Shoaib being a co-tenant should be accepted. All the receipts which have been filed on behalf of the petitioner were denied by the respondent, and he has stated that he had never issued any receipt. However, the petitioners counsel has pointed out that in Suit No, 482;76 at the foot of the plaint the respondent has mentioned Rent Receipts amongst the documents relied upon by him, and therefore, it should be presumed that these receipts were issued by the respondent. It may be a circumstance adverse to the respondent but by itself cannot be a conclusive proof of the receipts being genuine. Exh. 29 is a receipt dated 22nd February, 1976 in respect of the rent for the months of February, March, April and May, 1976. The petitioner thus wants to establish that even the advance rent up to May, 1976 has been paid. This document is contradicted by the written statement filed by the petitioner where he stated twice that the rent has been paid up to February, 1975. Thereafter he tried to amend it which was rejected. The other significant aspect of this document is that it also mentions that there are no arrears. In fact in normal receipts issued by a person, it is not necessary to mention that arrears are nil. It normally mentions about the amount received by the executant. Besides, Exh. 29 the petitioner has produced 13 receipts which have been denied by the respondent. All these receipts account for payment up to July, 1974. No receipts were produced for the months of August, 1974 to January 1975. The respondent has claimed rent for nine months for 1-2-1975 to 31-10-1975. It seems that in order to meet this gap in Exh. 29 arrears were mentioned as nil. The petitioner who seems to be very particular in obtaining receipts has not explained why receipts for payments for the period 1- 2-1975 to 31-10-1975 Were not obtained. The other unusual aspect of Exh. 29 is that unlike other receipts it has Len witnessed by two witnesses. There was no special reason to get the receipt signed by two witnesses. Another fact which belies the petitioner is that in his affidavit in support of his application under Order VI, rule 17, C. P. C. The petitioner, while throwing blame upon his previous Advocate, has stated that "when the written statement was prepared by my former counsel on 21- 2-1976, the rent was paid to the plaintiff in respect of premises in question up to February, 1976, but it is on account of typographical error that the year 1975 has been typed out, and in fact it is the year 1976." This statement admits that on 21-2-1976 the petitioner had already paid the rent for the month of February 1976. If it is correct then how is it that on 22-2-1976 the rent for the month of February 1976 was again paid as shown in Rich.
29. It is unbelievable that petitioner or Muhammad Shoaib would have paid rent twice for the same month. This completely demolishes the evidentiary value of Exh.
29. In his application under Order VI, rule 17 the petitioner has stated that on 21-2-1976 he had given instructions to his Advocate to prepare the written statement which was prepared in a great hurry and after signing it the same day he left for Rawalpindi. However the written statement was attested by the Oath Commissioner in his absence on 28-10-1976 when it was filed in Court. If this statement is correct than how it can be reconciled with the amendment sought to be made because on 21-2-1976 the petitioner could not have stated the rent up to February, 1976 had been paid particularly when Exh. 29 states that rent for February, 1976 to May, 1976, was paid on 22-2- 1976. Further if the receipt Exh. 29 is taken to be correct then it means that the amount was received by the respondent after filing the suit. If payment was made during the pendency of the suit then normally besides obtaining a receipt the petitioner in view of various legal proceedings should have taken proper steps to protect himself. If the entire amount claimed by the respondent was paid during the pendency of the suit proper application should have been filed in the Court recording settlement or withdrawal of the suit. These circumstances establish that the rent receipt is not genuine and the petitioner has failed to establish that Muhammad Shoaib is a co-tenant.
5. The main grievance of the learned counsel for the petitioner is that the learned trial Court did not examine his previous Advocate and the Oath Commissioner before whom the written statement was executed. From the record it seems that the petitioner had neither produced them nor summoned them, It was the duty of the petitioner to have summoned all the witnesses to prove his defence. The respondent had made an application to summon them as Court witnesses, but the petitioners strongly opposed the request by filing a counter affidavit and the application was dismissed. In the circumstances the petitioner cannot make any grievances and adverse inference can justifiably be drawn against him.
6. Mr. Nisar Ally the learned counsel for the petitioner stated that as the respondent had cut off the amenities the petitioner was not liable to pay the entire rent of Rs, 350= plus Rs, 20=. The respondents have denied these allegations. The petitioner has failed to prove these allegations.
Further if the amenities had been disconnected then how is it that he agreed to pay advance rent upto May, 1976, during the pendency of the suit. In this regard the petitioner had instituted proceedings before the Rent Con-toiler but did not meet with success. The learned counsel for the petitioner has contended that as petitioner's application for obtaining the opinion of a handwriting expert was rejected and there being no admitted signature of the respondent, the trial Court could not compare the respondent's signature on Exh. 29 with any admitted signature. Consequently the trial Court has acted with material irregularity. The learned trial Court in the impugned judgment has stated that he had compared carefully the signatures which to him appeared that might not be genuine. The learned trial Court had adopted a procedure which is permissible under law. The grievance o the petitioner is that there was no admitted signature on record and the on which was available was made on the plaint as late as on 17-7-1977 when learned trial Court had allowed the plaint to be signed by the respondent. Relying on PLD 1969 Dacca 214 the learned counsel for the petitioner argued that since the signature was obtained afterwards the possibility of the respondent changing his signature cannot be ruled out and thus the procedure adopted by the learned trial Court was not proper. One cannot ignore such a possibility but if the Court is convinced by other evidence that the signature on the document is not genuine then merely because the Court has compared with a signature obtained afterwards, by itself cannot be a ground for vitiating the entire proceedings. In the present case it cannot be said that Exh. 29 has been rejected merely on the basis of comparison. In fact the learned trial Court has based his judgment on more strong grounds. It is well settled that while exercising jurisdiction under section 25 of Provincial Small Causes Court Act, 1887 it is not every error of the subordinate Court which will require interference. The High Court would interfere when the view of the law taken by the lower Court is Cleary incorrect and has caused failure of justice. The High Court will refrain from interfering unless it appears that some substantial injustice to a party has directly resulted from a material misapprehension or misapplication of law or from material error in procedure.
7. From the above discussion I find no ground which call for interference with the judgment of the learned trial Court. In conclusion, I dismiss the Revision Applications Nos. 144/77 and 145/77 with no order as to costs. The remaining revision applications which were based on the same plea and ground are also dismissed with no order as to costs.
8. In R. A. 58/78 and R. A. 68/78 while admitting that the rent has not been paid the petitioner has denied his liability to pay the entire amount. The defence raised included which have been discussed above. In view of the foregoing discussion R. A. 58/78 and R. A. 68/78 are also dismissed with no order as to costs.
9. R. A. 90/78 and R. A. 263/78 arise out of distress warrant proceedings instituted by the respondents. The petitioner had raised similar defences and stated that the respondent is not entitled to claim rent a Rs, 370 per month. In view of the above discussion R. A. 90/78 and R. A.
263/78 are dismissed with no order as to costs.