The appellant above-named being aggrieved by the judgment and decree dated 5-8-1967, passed by District Judge, Karachi, in First Appeal No. 219 of 1966 arising from judgment and decree dated 14-2-1966, passed by the then 11 Civil Judge First Class in Suit No. 472/1555, re-numbered as Suit No. 219 of 1964, has preferred this appeal, inter alia on the following facts and grounds:-
2. That in 1955 one Abdul Kadir as plaintiff No. 1 and respondent above-named, claiming to be tenants of the appellant, in respect of Shop No. 11, Hassan Ali Afandi Road and offices premises No. 2/9, Akbar Road, Kardchi, filed Suit No. 472/1955 in former Chief Court of Sind, which was re- numbered as Suit No. 219/1964 on transfer to District Court, Karachi, purporting to be a representative suit, in respect of some 504 shops and 24 offices located in Shababuddin Market, Karachi, belonging to the appellants, for declaration and permanent injunction on the ground that the plaintiff in the said suit and other occupants of the appellants' property ,known as Shahabuddin Market situated in Karachi, were tenants of the appellants and not licensees and sought permanent injunction against the appellants, not to interfere forcibly, with their tenancy rights as well as for the other prayers, as mentioned in para. 2 of memo. Of appeal. The appellants resisted the said suit and stated in the written statement that plaintiffs in the said suit were licensees and not tenants and on various other grounds.
3. That on the basis of the pleadings of the parties, the trial Court framed the following issues:-
(1) Is the plaintiff-tenant of defendant in respect . Of Office No. 9/2, Akbar Road and has been in continuous possession of the same for the last many years?
(2) In the suit maintainable under Order 1, rule 8 of the Civil Procedure Code?
(3) Was the plaintiff explained the contents of the documents on the strength of which he was allowed occupation of the site in question?
(4) Is the plaintiff a mere licensee as alleged by the defendant in respect of the premises in dispute?
(5) 1s the notice under section 255 of the Municipal Act necessary before filing the suit?
(6) Are the plaintiffs and all others whom he claims to reprove, entitled to the declaration sought for?
(7) Is the plaintiff entitled to relief claimed?
4. That during the pendency of the above suit, the original plaintiff No. 1 dropped out and the suit proceeded in the name of the respondent above-named only, as plaintiff.
5. The above-mentioned suit filed by the respondent along with one Abdul Kadir, was dismissed by II Civil Judge First Class, Karachi, vide his judgment and decree dated 14-2-1966, against which the respondent above' named filed First Appeal No. 219/1966, which was allowed by the learned District Judge, Karachi, vide his judgment and decree dated 5-1-1967, and consequently, the appellants above-named, being aggrieved by this judgment and decree passed by the learned District Judge, Karachi, in Appeal No. 219 of 1966, have preferred this appeal, inter alia on the following grounds:-
(a) That the impugned judgment and decree is perverse and contrary to law and facts on record and as such not sustainable.
(b) That the learned District Judge, Karachi, filed to appreciate, that the suit in question was not properly instituted as representative suit, which is evident from certified copy of order dated 19-5- 1959 of the trial Court, which shows that permission to sue in a representative capacity was not granted and none appears to have been granted subsequently and as such the judgment and decree of the learned District Judge, Karachi, by which the respondent's suit has been decreed as prayed, is illegal and defective.
(c) That the learned District Judge, Karachi, has erred seriously in holding the relationship between the appellants and the respondent as that of lessors and lessee, as against licensors and licensees.
(d) That the copies of the alleged lost documents and other documents, were admitted in evidence without formal proof.
On the basis of the above facts and grounds, the learned counsel for the appellants submitted before this Court, as follows:-
6. That learned District Judge, Karachi, has erred in coming to conclusion, that respondent is the tenant of the appellants, due to wrong appreciation of law laid down by cases reported in PLD 1964 SC 106 and PLD 1962 Kar. 663 and unreported judgment of High Court of West Pakistan, Karachi Bench, passed in Second Appeal No. 194 of 1963 dated 25-1-1965, in the case of K. M. C. v.
Qazi Shahid Ali, in spite of Exh. 32, agreement of licence between the appellants and respondent above-named. 1 he learned counsel for the respondent, on the other hand submitted, that the judgment dated 5-8-1967 of the learned District Judge, Karachi, is based on cogent reasons and in proper appreciation of the law laid down by the cases reported in PLD 1964 SC 106 and PLD 1962 Kar. 663 and un--reported case of the High Court of West Pakistan in the case of K. M. C. v. Qazi Shahid Ali (Second Appeal No. 194 of 1963, dated 25-1-1965). The learned counsel for the respondent further submitted that Exh. 32 produced by the appellants, before the trial Court, was not proved in accordance with the Law of Evidence, inasmuch as respondent was not even confronted with his alleged signature on the same nor said Exh. 32 was proved as required by section 67 of Evidence Act, as witness who produced the said document, was not able to identify and prove the signature of the respon--dent on the said document, as he was not at all familiar with the signature of the respondent and as the said document was not executed in his presence.
The learned counsel for the respondent further submitted that if Exh. 32 is discarded, then the admitted document Exh. 7 and Exh. 9 clearly show, that appellants were charging rent for the premises in occupation of the respondent and as such respondent is the tenant of the premises in question and not a licensee, as rightly held by the learned District Judge, Karachi, in his judgment dated 5-8-1967.
I have carefully considered the above submissions of the learned counsel for the parties and have gone through record and proceedings of the trial Court and have also gone through the above- mentioned citations quoted in the judgment of the learned District Judge, Karachi. In my opinion, Exh. 32 is the main document on which appellants have relied for their stand, cannot be taken into consideration, as the execution of the said document by respondent, has not at all been proved, as required by law, as the same was not at all put to respondent nor any other witness was produced to prove its execution by the respondent, as the witness producing the said document was unable to prove its execution by the respondent. In view of this opinion of mine, the said document ought not to have been considered at all for purpose of deciding Issues Nos. 1 and 4. Once this document Exh. 32 is excluded for consideration, the only undisputed documents produced by respondent, namely, Exh. 7 and Exb. 9, the genuineness of which was not challenged in cross-examination of the respondent, go to prove, that appellants were demanding and accepting the rent, for the premises in occupation of the respondent and as such respondent is the tenant of .The appellants, in respect of the premises in his occupation and not a licensee, as alleged by the appellants. It may be noticed the Exh. 9 is dated 18-9-1953, whereas Exh. 32 is subsequent, and is date 18-12-1953.
Even otherwise also, if Exh. 32 is taken into consideration as agreement between the parties in respect of the premises in occupation of the respondent, then too as tightly held by the learned District Judge, Karachi, the said document clearly shows, that exclusive possession of the premises in question was delivered to the respondent and as such the said document cannot be considered as licence, merely on the basis of terminology of the said document. The learned District Judge, Karachi, has given cogent reasons for arriving at this conclusion and I agree with the said reasoning and finding of the learned District Judge, Karachi.
The other contention of the learned counsel for the appellants, that suit in question was not a representative suit in view of order of trial Court dated 19-5-1954, and as such Issue No. 2, which- relates to this question was wrongly decided by the learned trial Court in favour of the respondent.
This finding of trial Court was not challenged by the appellants, even by cross-objections in Civil Appeal No. 219 of 1966 and as such the said finding was not disturbed by the learned District Judge, Karachi, in the said appeal. In fact the learned District Judge, Karachi, by decreeing the above suit as prayed, has confirmed the said finding on Issue No. 2. However, the learned counsel for the respondent was unable- to point out any order of the trial Court after 19-5-1959 granting respondent's application under Order I, rule 8, C. P. C. And as such ~ I agree with the contention of the learned counsel for the appellants, that finding of the trial Court on Issue No. 2, which has been, by implication, confirmed by the judgment of the learned District Judge, Karachi, in the absence of necessary orders on respondent's application under Order 1, rule 8, C. P.
C. Cannot be sustained and as such in my opinion, the judgment and decree dated 5-8-1967 of the learned District Judge, Karachi, will only govern the rights, as claimed by the respondent only. In this view of mine, I am supported by a case reported in AIR 1933 P C 183 and AIR 1934 Lah. 366.
The last contention of the learned counsel for the appellants, that lost documents and other documents produced by respondent were admitted in evidence without formal proof, has no force at all. It is clear from the original plaint, that respondent had filed original documents as mentioned in the said plaint, which admittedly were lost and as such respondent was fully justified in producing copies of the said documents, specially Exh. 7 and Exh.
9. It may be noticed that genuineness of said two documents produced by respondent in his deposition was not at all challenged in his cross-examination at all.
No other points were urged by the learned counsel for the appellants before me. <p.m></p.m>