This is a writ petition against order dated 11-7-1979 of Rent Controller directing the ejectment of petitioner from premises of a portion of house No. S-83-R-21 also known as 21-Lake Road, Lahore as well as against order dated 30-7-1981 of Additional District Judge, Lahore, dismissing petitioner's appeal and affirming the order of Rent Controller.
2. The facts of the case are that respondent No. 3 Muhammad Ibrahim transferee and respondent No. 4, Aziz Ahmad, successor-in-interest of Ata Muhammad, co-transferee of said property filed an ejectment application against petitioner Muhammad Qasim under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter called the Ordinance) for ejectment of the petitioner from a portion of the said property on the ground of default en payment of rent and impairment of value of property. Petitioner Muhammad Qasim in his written statement denied the receipt of any notice under section 30 of Displaced Persons (Compensation and Rehabili--tation)
Act, 1958. He also denied the relationship of landlord and tenant between the parties on the ground that the said respondents Nos. 3 and 4 were not owners of the property as P. T. O. Mentioned in the petition had already been cancelled. He conceded in his said written statement that he had never paid any rent to the petitioner. On the pleadings of the parties the following two issues were framed
(1) whether notice under section 30 of the Displaced Persons (Compensa--tion and Rehabilitation)
Act, 1958 was served upon the respondent 7 O. P. P.
(2) whether the relationship of landlord and tenant exists between the parties ? O. P. P.
The learned Rent Controller by his order dated 11-7-1979 decided both the issues in favour of the respondents Nos. 3 and 4 and directed the ejectment of the petitioner from the house in question.
The petitioner filed an appeal before the Appellate Authority on 1 2-7-1979. Later, on 11-12-1979, he filed an application under section 15(3) of the said Ordinance for permission to produce additional evidence. The Additional District Judge dismissed his appeal by his order dated 30-7-1981 and maintained the order of ejectment.
3, The learned counsel appearing on behalf of the petitioner in this writ petition has first submitted that as per Urdu order dated 20-7-1981 passed on order sheet of the appeal file, the appeal was adjourned for announcement of decision to 30-7-1981 but the next order on the said order sheet reciting the announcement of the decision of the appeal on that day as per English order has also been shown to be of 20-7-1981.
4. I have seen the two orders passed on the order-sheet. The said last order on the order-sheet, no doubt; shows 20-7-1981 as the date when it was passed. However, reading the said two orders together, it is absolutely clear that the mention of date of this order on the order-sheet as 20-7- 19811 is merely a mis-description for the correct date namely 30-7-1981. It appears that by a clerical mistake wrong date vii. 20-7-1981 was inadvertently recorded instead of the correct date namely 30-7-1981. Mere misdescription in the date in the Urdu order in the order-sheet, however, does not vitiate the judgment of Additional District Judge which is clearly dated 30-7-1981. The objection has no merit in it and is hereby repelled.
5. The learned counsel then argued that notice under section 30 (ibid) issued by transferees, Muhammad Ibrahim respondent and Atta Muhammad, predecessor-in-interest of Aziz Ahmad, respondent was originally addressed to some other person living in this property and after rubbing off the name of the said addressee, the name of petitioner had been inserted. In proof of the said allegation he referred to an observation of the Rent Controller at the time of recording of the evidence of Mr. S. M. Nasim, Advocate as AW/1 (who proved the carbon copy of said notice sent by him) that there appeared to be rubbing on the notice and the counsel for the opposite-party could put a question to the said witness for its explanation. He further referred to the reply of the said witness to such a question wherein the said witness stated that he could not say as to when and how this rubbing had taken place on the said notice. On the basis of this data, the learned counsel has submitted that the finding of the Rent Controller and Additional District Judge that notice under section 30 (ibid) stood served upon the petitioner was wrong and the mandatory condition for assumption of jurisdiction by the Rent Controller having not been fulfilled, the order of ejectment passed by the Rent Controller and maintained by the Additional District Judge was without lawful authority.
6. I have considered the objection raised. I he Rent Controller, who finally decided the case has in his order dated 11-7-1979 clearly held that there was no rubbing on the said carbon copy of the notice produced by the said witness and opined that the observation by the Rent Controller a the time of recording of evidence of AW/1 that there appeared to be some rubbing on the said notice was the result of the circumstance that the Court room was not well lighted and was generally dark due to the low voltage of the electricity and that, he had now along with the counsels of the parties.
Looked into the said notice with great care and had found that there was no rubbing in the disputed portion of the notice which showed only the impression of the carbon from the carbon paper due to extra-pressure exerted on the said carbon paper. The learned Rent Controller has also stated in his judgment that the counsel of the parties including the learned counsel for the petitioner had agreed that there was no rubbing on the said notice. The learned Rent Controller also relied upon the circumstance that the receipt acknowledgment due which was also proved by the said witness, namely Mr. S. M. Nasim, Advocate, as AW/1 clearly shows that the notice was addressed to Muhammad Qasim, petitioner. He also relied upon the circumstance that the said receipt acknowledgment returned to the office of AW/1 showed the, signature of the petitioner and the petitioner had not denied said signature nor cross-examined AW/1 Mr. S. M. Nasim, ,Advocate in that respect. On the basis of this data,. He .Rejected the plea of the petitioner. Before the learned Additional District Judge it was urged that there was interpolation in the notice aril that the address of the petitioner was the result of overwriting. The Additional District Judge also came to the conclusion that the address of the petitioner as given in the notice was the one which .Was originally given therein and was not one written thereon at some subsequent time and that it was due to extra carbon from carbon paper that it appeared as if address had been overwritten. The learned Additional District Judge also held that correct address of the petitioner had been given on the carbon copy of the notice. He relied upon acknowledgment receipt AW/1/3 and observed that that also proved the same address.
7. Above findings of the Rent Controller and Additional District Judge are findings of fact and I cannot in exercise of extraordinary jurisdiction under Article 9 of the Provisional Constitution Order go into these findings of fact. Even otherwise these findings of facts are duly supported by the evidence, oral and documentary, on the record, especially the acknowledgment receipt, which gives the correct name, parentage and the address of petitioner typed by the; sender of the notice as well as the signature of Muhammad Qasim dated 14-10-1963 put thereupon which was not denied at any stage.
In view of this, there is no force in this point too which is also, therefore, repelled.
8. In the end, learned counsel for the petitioner has submitted that petitioner had filed in the Court of Additional District Judge an application under section 15(3) of West Pakistan Urban Rent Restriction Ordinance, 199 for permission to adduce additional evidence on which arguments were heard along with arguments on appeal but no decision was recorded on said applica--tion and therefore the decision of the appeal stood vitiated.
9. I have considered this objection too. Section 15(3) of West Pakistan Urban Rent Restriction Ordinance, 1959 reads as follows; "The appellate authority shall decide the appeal after sending for the record of the case from the Controller and after giving the parties an opportunity of being heard and, if necessary, after making such further inquiry as it thinks fit either personally or through the Controller."
It is clear from the subsection that appellate authority can make further inquiry in the matter if he deems it necessary. In other words, the making of further inquiry in the matter by the appellate authority is under this subsection subject to the appellate authority feeling the necessity of recording further evidence in the case. This necessity may arise on account of appellate authority being unable to pronounce judgment on they evidence already available on the record due to some omission of a material nature in the said evidence or some other cause but necessity to record evidence was t be a requirement of the Court and not that of a party. Appellate authority, therefore, could make an order on this application if after looking into the entire evidence it came to the decision that there was some lacuna left in the evidence. The learned Additional District Judge after hearing argument on the merits of the case, however, did not, apparently find Any such lacuna in the evidence and was able to decide the appeal on the evidence as available on the file.
Admittedly, he had heard arguments on this application simult--aneously with arguments on the appeal and was obviously conscious of the existence of such an application having been filed and pressed by petitioner. Therefore, by deciding the appeal on merits, the Additional District Judge had impliedly rejected this application of petitioner. No capital can, therefore, be made out of his having not made an express order of dismissal of sat application.
10. However even if it is considered that Additional District Judge was not conscious of existence of this application at the time of recording decision of the appeal and therefore, this application had not been rejected by him impliedly, even then, petitioner has no case in this regard. The language in which subsection (3) of section 15 of the Ordinance is couched shows that no litigant before appellate authority has been given the right to file an application for grant of permission to hold further inquiry. The words used in subsection--(3) of section 15 are `make further inquiry', which are clearly relatable to appellate authority. Thus exercise of power by the appellate authority to make further inquiry in the matter before deciding the appeal is clearly of its own motion or sun and not on application of a party. The matter is further clarified when other provisions of the Ordinance are taken into consideration. Sections 4, 10k2), 12 and 13 have given right either to tenant or to the landlord to file applications for reliefs contemplated in these sections. The Legislature was fully aware of its having made specific provision in these sections of the Ordinance for filing of applications by tenant or landlord. Therefore, the absence in subsection (3) of section 15 of the same statute of any provision authorising parties to file an application for produc--tion of additional evidence before appellate authority is significant and appears to show that a litigant before appellate authority had no right to file such an application. The application in question, therefore, did not lie as a matter of right and the learned Additional District Judge was under no legal obligation to decide the same. The act of the appellate authority in not passing any order on such an application did not amount to failure on his part to exercise jurisdiction vesting in him nor did it constitute an violation of any principle or provision of law warranting issue of an order under Article 9 of the Provisional Constitution Order. The act of Additional[ District Judge in deciding the appeal without making any order on this application is, therefore, sustainable on this ground..
11. Furthermore, even otherwise there was no merit in this application and it appears that it had been filed by petitioner only to delay the decision of the appeal and to have his ultimate eviction from the property in question postponed for an indefinite period. The only reason which the application advances for seeking permission to produce additional evidence is that on examination of the settlement file it had been revealed that for the determina--tion of issue of relationship of landlord and tenant between the parties, many documents which were available on the file of the Settlement Department had not been placed on the record of the case before the Rent Controller. The application proceeded to say that the said documents were necessary to be placed on the record in order to prove that respondents Muhammad Ibrahim and Aziz Ahmad were not at all owners or the landlords of the property in question. However, none of the documents which were sough to be produced was specified in the application. Moreover, no reason had been given in the application to explain why necessary documents could no be produced earlier before the Rent Controller and no justification had bee made out in it for grant of an order to permit the petitioner for second time to adduce evidence. The precise objection that the respondents Nos. 3 and 4 are not owners of the property had been taken by way of preliminary objection and again in para. I of reply on merits in the written statement filed by the petitioner before the Rent Controller. It was specifically stated in preliminary objection No. 2 that respondents Nos. 3 and 4 were not owners of the property mentioned in the ejectment petition and P. T. O. Relied upon by them in the ejectment application had since been cancelled and that the property now stood in the name of Ishtiaq Ahmad and that the said respondents wanted to defraud the petitioner on the basis of a P.
T. O. Which had already come to an end. In para. No. 1 of reply to the ejectment petition on merits, it was reiterated that the property bad not been transferred in the name of respondents 3 and 4 and P. T. O. Mentioned in the ejectment petition bad already been cancelled. However, no evidence was produced on this objection (even though P. T. O. Which did not show that it had been produced by respondent Aziz Ahmad in his evidence) and the learned Rent Controller in his decision on Issue No. 2 relating to the-existence of rela--tionship of landlord and tenant between parties bad clearly held that this allegation was merely verbal and had not been substantiated by production of any documentary evidence. Thus application under section 15(3) of the Ordinance for grant of permission to produce additional evidence in the circumstances of the present case amounted to seeking permission to fill u the deficiencies and lacunae in the evidence of petitioner produced before the Rent Controller. This, however, could not be allowed to be done by resort to subsection
(3) of section 15 of the Ordinance which is not meant t cover up defaults of parties in production of their evidence earlier before the Rent Controller.
12. Here I may add that in any case, no useful purpose is likely to be served by sending the case back to the learned Additional District Judge for his recording an express decision on the application for permission to produce additional evidence, as, even if permission is granted and required documents placed on record, those would not rebut the P. T. O. Which is the repository of the final decision of Settlement authorities in respect of transfer of property made by them., Tribunal acting under this Ordinance) is not a Court of general jurisdiction and cannot decide question of title of a person in property and has to depend upon P. T. O. Which is sufficient for it to hold. The provisional transferee mentioned therein as the landlord. P. T. O. Produced in the case as A. W. 3-1 shows the property having been transferred in favour of respondents Nos. 3 and 4. This P. T.
O. Does no show that it has been cancelled. It is in fact and continues to hold the field. It is not the case of petitioner in the said application that P. T. O. In favour of Ishtiaq Ahmad (who had been claimed in the written statement to be provisional transferee of said property now) was available on the Settlement file. In the circumstances, the remand of the case to the appellate authority for his passing an order on the application for production of additional evidence would be of no consequence and would result only in harassment of respondents Nos. 3 and 4 and waste of precious public time. Power under Article 9 of the Provisional Constitution Order cannot be used to encourage frivolities and futilities.
13. In view of the above, there is no merit in this writ petition which is hereby dismissed in limine.