1. ' The appellant has filed the above appeal against the judgment dated 13th May 1976, of IIIrd Additional District Judge, Karachi passed in Rent Appeal No, 203 of 1975, whereby he accepted the appeal of the respondent and set aside the order dated 14th March 1975 passed by the XIth Civil Judge and Rent Controller, Karachi, inter alia on the following facts and grounds :- ' On 5-3-1966, appellant filed the ejectment application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 against the respondent, in the Court of 1st Civil Judge, First Class and Rent Controller, Karachi, which case was transferred to the Court of XIth Civil Judge and Rent Controller, Karachi on 30-10-1972.
2. ' The brief facts of the appellant's case as disclosed in the above-mentioned application, are, that the appellant is the owner and landlord of the house bearing No, 39, New Basti, Delhi Colony, Karachi and the respondent is occupying the said house at monthly rent of Rs, 40 per month originally under tenancy agreement dated 1-4-1960 and subsequently under agreement dated 1- 4-1963,-by which the agreed rent was enhanced from. Rs, 20 per month to Rs: 40 per month. The appellant in the said application alleged, that the respondent has failed to pay or tender the rent, since the occupation of the house in spite of repeated demands. The appellant had further stated that he requires the premises in question, in good faith for his own occupation and for the occupation of his family members. The appellant further alleged that the respondent had committed such acts as are likely to impair value and utility of the premises in question. He further alleged that the respondent had been guilty and such acts of conducts as are nuisance to the occupants of the building in the neighborhood. The respondent filed his written statement in which he admitted the tenancy and the rate of rent. The respondent further stated in his written statement, that the applicant possessed a plot of land with unfinished dilapidated structures and gave the possession thereof to the respondent with permission to build construction at the cost and expenses of the respondent and to occupy the said premises as a tenant and adjust the amount so spent against the rent which was agreed at Rs, 20 per month from October 1960, to September 1963, and Rs, 40 per month from October 1963, until such time as total amount of Rs, 5,850.28 spent by him was fully recovered and adjusted. The respondent in his said written statement alleged that sum of Rs, 1914 has been adjusted from the amount of Rs, 5,850.28 upto June, 1966, and the remaining amount of Rs, 3910.28 was still to be adjusted against the rent from July 1966, onward and as such there were no arrears of rent due against respondent, on the contrary an amount of Rs, 3910.28 still remains to be adjusted in future rents. The respondent in his said written statement further stated that the appellant does not require the premises in his occupation bona fidley and denied all the other allegations levelled by the appellant against him.
3. He further stated that he had filed Suit No, 126/66 on 10-2-1966 against the appellant in respect of the sum of Rs, 3,970 in which he has sought declaration and permanent injunction for his right to adjust the said amount against rent of the premises and for non-disturbance of his possession of the said premises, in which temporary injunction was issued against the appellant and was in force when as the counter blast, the appellant has filed this ejectment application and as such until the said suit was finally decide their exists no cause of action whatsoever for filing of this ejectment application. The respondent further submitted in his said written statement, that the proceedings in respect of the ejectment application in question be stayed until such time as the Civil Suit between the parties is decided finally.
4. ' On the above pleadings of the parties, the learned Rent Controller adopted the following consent issues on 3.9-1969: ' Issue No, I.-Whether the possession of the disputed structures was given to the opponent with permission to build complete and do the finishing of the said property in suit ?
5. ' Issue No, 2.-Whether the opponent completed and did the finishing' of the said property and incurred the expenditure of Rs, 5,850.28 towards it? What amount has been adjusted so far..
6. ' Issue No, 3.-Whether adjustment was agreed from April 1960 to September 1963 at Rs, 20 p.m. And thereafter at Rs, 40 p.m.? If so,.
7. ' Issue No, 4.-Whether there is any alleged or other default in payment of rent?
8. ' Issue No, 5.-Whether the premises in suit is required by the applicant in good faith?
9. ' Issue No, 6.-To what relief, if any, the applicant is, entitled to ?
10. ' That the learned predecessor of the learned Rent Controller, after considering the evidence which was laid by the parties before him, allowed appellant's said application and passed the ejectment order against the respondent on 3-1-1974. The respondent above-named being aggrieved by this order dated 3-1-1974 preferred appeal before the District Judge, which was allowed by the learned 1st Additional Sessions Judge, Karachi on 1-11-1974, by which order dated 3-1-1974 of the then Rent Controller was set aside and the case was remanded back with directions, that the respondent be allowed to produce the documents by recalling the appellant. With an opportunity to the other side to lead evidence in rebuttal, if so desired. In this appellate judgment, it was further, mentioned that after recording of fresh evidence the Rent Controller shall record fresh judgment, without being influenced by the findings recorded by the then Rent Controller. As per direction of the learned Appellate Court, the Rent Controller gave an opportunity to the respondent by recording the evidence and production of the documents in compliance of the orders of the appellate Court. The opportunity was also given to the appellant to produce evidence if any in rebuttal. The learned XIth Civil Judge and Rent Controller, Karachi after considering all the evidence on record which was before him decided the Issues Nos. 1, 2 and 5 in the negatives and Issue No, 3 by holdi9g that there was no agreement for adjustment of rent as alleged by the appellant and on Issue No, 4 he held, that appellant had committed default and accordingly by his order dated 14-3.1975 directed the respondent to vacate the premises in occupation and hand over its possession to the appellant, within one month. Appellant filed no appeal against order dated 14-3-1975 of Rent Controller.
11. ' The respondent above-named, being aggrieved by the above order dated 14th March 1975 of the learned Rent Controller, filed Rent Appeal No, 203/75 in the Court of IIIrd Additional District Judge, Karachi, who after considering the evidence adduced before the learned Rent Controller as well as the order dated 14-3.1975 of the learned Rent Controller and after hearing Advocate of both the parties, allowed the said appeal and set aside order dated 14th March 1976, of the learned Rent Controller, for the reasons given by him in his judgment dated 13th May, 1976.
12. ' The appellant above-named, being aggrieved by the said judgment dated 13th May, 1976 of the learned IIIrd Additional District Judge, Karachi, has preferred this appeal on the following grounds :-
(1) The order impugned herein suffers from a manifest error and misinterpretation of the law relating to the admissibility of oral and documentary evidence in variation to the agreements of tenancy and calls for interference from this Hon'ble Court.
(2) The learned Additional District Judge, Karachi has seriously erred in law in holding that the respondent was entitled to get adjustment to the. Extent of Its. 5,850.28 which amount he allegedly spent over the construction of house although his claim relating to the said adjustment in Civil Suit No, 126 of 1966 entitled A. R. David v, T. R. Rather was dismissed with cost on 15-7-1967 by the civil Court. It is submitted that in view of the dismissal of the respondent's suit his claim relating to the alleged adjustment, would be hit by the doctrine of res judicata.
(3) That the earned Additional District. Judge had failed to take into consideration that the respondent had not proved the Receipt Exhs. 9 to 44 relating to the purchases of the material and that he has led no evidence to show that the material covered under the aforesaid receipts was actually used in the construction of the said house.
(4) That the learned lower Appellate Court has seriously erred in law in the appreciation of the evidence on record inasmuch as it wrongly disbelieved the appellant's witnesses whose evidence is more in consonance with the evidence on record than that of the evidence adduced on behalf of the respondent, which is contradictory on material points.
(5) That the learned lower appellate Court has seriously erred in law in observing that the appellant's statement is belied by his own letters Exhs. 5/3 and 5/5. It is submitted that a perusal of these documents would only show that the appellant was ready to settle the account in respect of the repairs carried out by the respondent but these letters cannot possibly be interpreted to mean that the settlement of the account relates to the entire reconstruction of the house on the plot of the appellant. Even in law, such adjustment in the rent is only permissible with the sanction of the Rent Controller as envisaged by section 12 of the West Pakistan Urban Rent Restriction Ordinance 1959.
13. ' The learned Advocate for the appellant urged before me that the order of the learned Illrd Additional District Judge, Karachi arises from a manifest error and misinterpretation of the law relating to the admissibility of oral and documentary evidence and as such is liable to be set aside by this Court, In support of this contention, the learned Advocate for appellant, submitted, that Exhs.
14. 9 to 46 produced by the respondent, before the learned Rent. Controller were not proved in accordance with the law, as the executants of these documents were not produced to prove these documents. In this connection the learned Advocate for the appellant relied on case reported in PLD 1973 SC 160 in which by majority judgment, it was held that documents which are not copies of judicial record, should not be received in without proof of signatures and handwritings of persons alleged to have signed or written them, even if such documents are brought on record and accepted without objection. The learned Advocate for the appellant, further submitted that no evidence at all was produced, by the respondent to prove that material purchased vide Exh. 9 to Exh. 46 was actually used in the premises in question. He further submitted that even the mason and carpenter were not produced in support of respondent's contentions, that he 'got the work done through them in the premises in question. The learned Advocate for the 'respondent, in reply to these arguments urged on behalf of the appellant, submitted that Exh. 9 to Exh. 46 have been proved by the respondent through his deposition on oath and this was sufficient proof for consideration of these exhibits and further stated that respondent produced two witnesses to support his contentions in respect of the constructions carried out by him and expenditure incurred by him. He further submitted that after lapse of 6 to 7 years of the construction carried out by the respondent, it was not possible for the respondent to produce Mason and Carpenter who actually carried out the construction work. The learned Advocate for the respondent further submitted that no objection was raised to the production of these documents by the appellant, before the learned Rent Controller and as such the same cannot now be raised, as these documents were accepted in evidence and duly exhibited. In my opinion, the contention of the learned Advocate for the respondent, in view of the majority decision of the Hon'ble Supreme Court, in case reported in PLD 1973 SC 160, has no force and as such I hold that the learned IIIrd Additional District Judge, has erred in relying on these exhibits and consequently coming to the conclusion, that the respondent was entitled to adjustment of Rs, 5,850.28 being the amount spent by him, on the alleged constructions, towards the rent of the premises in his occupation and was not in arrears of rent at the time of the filing of ejectment application in question. In view of this, I am of the opinion, that learned Additional District Judge, Karachi was not justified in setting aside the findings of the learned Rent Controller, that these exhibits were not proved and as such the question of respondent being entitled to adjustment of these amounts against rent, does not arise.
15. The second contention of the learned Advocate for the appellant, that Suit No, 126/66 was dismissed with cost on 15th July, 1967 and as such the said decision was rev judicator as far as the plea of the respondent for adjustment of Rs, 5.850.28, has no substance, as the learned Advocate for C the respondent stated at her before me that the said suit was dismissed for non-prosecution and this statement of the learned Advocate for the respondent, has not been challenged by the learned Advocate for the appellant and furthermore appellant has not filed certified copy of the said judgment dated 15th ;July 1967, by which Suit No, 126/66 was dismissed, in order to prove that the same was dismissed on merits.
16. ' The other connected grounds urged before me by the learned Advocate of the appellant, in respect of Exhs. 9 to 46 and disbelieving of the witnesses produced by the appellant by the learned IIIrd Additional District Judge, as well as effect of Exhs. 5/3 and 5/5, in view of my finding that the respondent failed to prove Exhs. 9 to 46 and consequently was not entitled to claim adjustment of Rs, 5,850.28 towards the rent of the premises, require no consideration for disposal of this appeal.
17. ' The third point which was raised by the learned Advocate for the appellant was, that no oral evidence could have been produced by the respondent in contradiction of the agreements Exhs. 2, 3 and 4 in view of section 92 of the Evidence Act. In support of this contention the learned Advocate for the appellant relied on 1971 S QM R 198. . The learned Advocate for the respondent in this connection, submitted that oral evidence could be produced in variation of written agreement in view of the facts of this case, and for this purpose the learned Advocate of the respondent . Relied on AIR 1936 All. 717, AIR.. 1937 Cal. 619, AIR 1938. Cal. 430 and PLD 1961 Dacca 349. The authority reported in 1971 SCMR 598, which has been cited by the learned Advocate for the appellant, lays down, that tenant in presence of written agreement, could not lead evidence, showing variation in terms , and conditions ,of lease. In my opinion, this authority is not applicable to the present case, as respondent by the oral evidence in question, is not I trying to show any variation in the terms and conditions of the lease at all as mentioned in the said three agreements. The authority relied upon by the respondent's counsel AIR 1937 Cal. 616 lays down that oral evidence in respect of fact of which there is no mention in the documents is admissible under section 92, proviso (2) of the Evidence Act. The authority reported in 1 AIR 1938 Cal. 430 also lays down the same principles. The authority report in PLD 1961 Dacca 349 also supports the contention of the Advocate of respondent and similarly authority reported in A 1 R 1936 Cal. 717 also lays down the same principles that is, if the document is silent on a particular I matter, the oral evidence of a separate oral agreement, not inconsistent with such document is admissible and these authorities in my opinion, support the contention of the learned Advocate before me.
18. ' I have considered the submission of the learned counsel as well as the authorities cited by both in this connection and hold that the respondent was entitled under section 92 proviso (2) of the Evidence Act to lead oral evidence, regarding oral agreement between the parties for adjustment of the amount spent under oral agreement towards the rent, as such evidence is not in contradiction of anything said and or mentioned in these three agreements. In view of this I agree with the finding of the IIIrd Additional District Judge, that the respondent was entitled to lead evidence to show the existence of an oral agreement regarding construction over the demised house and adjustment of the amount spent by him towards the rents. In this connection it may be noted that according to the appellant, respondent paid no rent to him from the very inception of the tenancy till the ejectment application in question which was filed after a period of 6 years and no written demands from the side of the respondent was made for such rents but on the contrary, the appellant went on getting fresh agreements from respondent and further appellant's letters Exhs. 5/3 and 5/5 clearly show that there was some agreement between the parties in respect of construction and repairs to the demised premises and as such I hold that there was an agreement between the appellant and respondent as alleged by the respondent but since the respondent has failed to prove Exhs. 9 to 46, it is not possible to determine the amount actually spent by him, for which he could claim adjustment in future rents. No other grounds have been urged by Advocates of the either side before me.
19. ' In view of my above findings specially that the respondent failed to prove that he spent Rs, 5,850.28 on construction and repairing of the premises in his occupation, there is nothing on the record to show the actual amount spent by the respondent, for which he could claim adjustment and as such in the presence of the admission of .The respondent, that he had neither paid nor tendered rant from the inception to the appellant except by adjustment as claimed by him, I hold that respondent is a defaulter within the meaning of section 13, West Pakistan Urban Rent Restriction Ordinance 1959 and set aside the judgment dated 13-5-1976 of the learned IIIrd Additional District Judge and uphold the order dated 14th March, 1975 of the learned Rent Controller and allow this appeal and direct the respondent, to put the appellant in possession of the premises in his occupation, within two months from the date of this order. In the circumstances and the facts of the above appeal, I would pass no orders as to cost.