This appeal is directed against the order of the learned Additional District Judge, Lahore, dated the 24th March, 1976, accepting the appeal of the respondent against and reversing the order of the .Learned Rent Controller, Lahore, dated the 7th June, 1973, whereby the appellant's application under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, for securing eviction of the respondents from the property in dispute situate at 18 Maclagan Road, Lahore, was granted.
2. On the 8th December, 1969, Mst. Nuzhat Majid, appellant, filed with the learned Rent Controller, Lahore, application for ejectment of the late Mian Muhammad Shafi, predecessor-in-interest of the respondents, from the building in dispute. She alleged that the premises had been leased out to Mian Muhammad Shafi in about June, 1960, at a monthly rent of Rs. 600. She sought his ejectment on the grounds that he had defaulted in paying rent, that he had sublet the premises and that he had become an undesirable tenant.
2. Mian Muhammad Shafi contested the application for diverse reasons. Inter alia, he maintained that the petitioner was not his landlady. He averred that he had never taken the property on lease from her and that it was his firm, Mian Muhammad Shafi Mozangl Contractors, which had been in its use and occupation since 1963, on the basis of a contract with the petitioner's father, Sheikh Abdul Majid. Who was the owner of the building. He contended that the said firm had reconstructed and renovated the building by spending an amount of Rs. 65,000 and was entitled to retain its possession till 1983.,
3. The learned Rent Controller tried the preliminary issue whether relationship of landlord and tenant existed between the parties. On the evidence placed before him he answered the issue in the affirmative and consequently directed Mian Muhammad Shafi to be ejected from the premises in question vide order of the 7th June, 1973. In appeal the learned Additional District Judge took the contrary view and accepting the appeal of Mian Muhammad Shafi recorded dismissal of the appellant's application on the 24th March, 1976. Feeling aggrieved she has approached this Court in further appeal.
4. The learned counsel for the appellant argued that the learned Additional District Judge departed from the settled principles of appreciation of evidence and took into account inadmissible evidence to formulate the conclusion which was manifestly contrary to law. He pointed out that the process of reasoning adopted by the learned Judge for not giving due weight to the evidence of Sheikh Abdul Majid, father and attorney of the appellant, because the appellant had failed to appear in Court to state that she had rented out the building to Mian Muhammad Shafi, was fallacious. Again he submitted that the learned Judge gave unwarranted preference to the oral testimony of the respondent's witnesses over the appellant's evidence which was comprised of authentic admitted documents. The learned counsel referred to certain matters, which will be presently examined, which the learned Judge had omitted to consider while formulating his judgment.
5. The exception taken by the learned counsel for the appellant to the correctness of the logic employed by the learned Judge and of the decision arrived at by him is not without substance.
Mere non-appearance of the appellant, who happened to be a lady, in the witness-box ought not to have influenced the learned Judge to go to the extent of with--holding due weight to the testimony of her attorney, Sheikh Abdul Majid. Her attorney was fully authorized and competent to matte a statement on her behalf and his deposition demanded due consideration Generally in our country ladies in civil matters do not themselves appear in Courts and choose to appoint attorneys to represent their interests. The learned Judge's use of unexhibited document, which did not form part of the record, to draw therefrom inference, which was otherwise incorrect, that the appellant's evidence and documents contradicted her was not legally proper. Muhammad Jahangir, R. W. 3, produced by Mian Muhammad Shafi, as a witness of entering into contract between Sheikh Abdul Majid and Mian Muhammad Shafi regarding incurring expenses of renovation of the building by Mian Muhammad Shafi, bore out that some document touching contract had been written.
However, no such document was produced by Mian Muhammad Shafi. Mian Muhammad Shafi as R'. W. 7 deposed that he had been paying Rs. 600 per mensem as compensation for use and occupation of the premises in dispute to Sheikh Abdul Majid and had been getting receipts from him. No such receipt, which could have gone a long way to show as to who the landlord and who the tenant was, was brought on the record by Mian Muhammad Shafi. Non-production of the receipts by him raises presumption that if produced they would have gone against his interest. The learned Additional District Judge did not advert to this aspect of the matter. The cheque, Exh. P/1, for Rs. 1,800 was admitted by Mian Muhammad Shafi to have been issued by him in favour of Mst.
Nuzbat Majid, appellant, on the 15th June, 1970. According to the appellant this cheque he had given in respect of payment of three months' rent. Mian Muhammad Shafi stated that though the landlord was Sheikh Abdul Majid, who. Was also his Income-tax adviser, he had issued the cheque in the name of Mst. Nuzhat Majid, appellant, on the request of Sheikh Abdul Majid. Had the firm, Mian Muhammad Shafi (Mozang) Contractors, been responsible for paying the amount to Sheikh Abdul Majid the cheque would have gone out of the account of the firm and would have been drawn in favour of Sheikh Abdul Majid. The fact that Mian Muhammad Shafi was the drawer and Mst. Nuzhat Majid drawee of the cheque lends support to the appellant's averment that Mian Muhammad Shafi was a tenant under her. In the absence of any documentary evidence it is difficult to accept Mian Muhammad Shafi's assertion that Rs. 65,000 had been spent on reconstruction and renovation of the building by the firm (Mian Muhammad Shafi (Mozang)
Contractors) under the agreement with Sheikh Abdul Majid that the firm would stay in possession of the building for twenty years. Such a huge amount is seldom spent without securing a written guarantee for its repayment. The isolated remarks in the statement of Sheikh Abdul Majid while appearing as, P. W. 1, that it was not in his knowledge whether any Muhammad Shafi contractor was in possession of the building in dispute although be had given the building to the respondent on rent, could hardly be banked upon by Mian Muhammad Shafi to establish his version. Of the case because from the statement of Sheikh Abdul Majid as a whole it was clear that he all along asserted that the building had been given by the appellant on rent to Mian Muhammad Shafi.
6. In view of the above it is clear that the learned Additional District Judge misread and misinterpreted the evidence as also he used inadmissible evidence and left out of consideration evidence which he ought to have taken into account to make a decision which was other than legal and proper. From the evidence brought on the record it is evident that the premises were taken on lease by Mian Muhammad Shafi from Mst. Nuzhat Majid he occupied it as a tenant under her. As relationship of landlady and tenant between the parties is established to have existed the appeal has per force to be accepted. The impugned order of the learned Additional District Judge is set aside and the respondents are directed to put the appellant in possession of the premises in dispute. The respondents are given two months' time to vacate the possession of the premises. The appellant will get her costs from the respondents.