' The appellant abovenamed, being aggrieved by judgment dated 25th November, 1980 of the 1st Additional District Judge, Karachi passed in Rent Appeal No, 514/78 by which he confirmed the order dated 31st August, 1978 of the learned Rent Controller, Karachi, in Rent Case No, 1277/72 by which appellant was directed to be ejected from the shop premises in question, on the ground of default, has preferred this appeal on the following facts and grounds :-
2. The appellant is the tenant of the respondent at the monthly rent of Rs, 45 in respect of shop No, 4, situated at plot No, 2/860/G, behind K. M. C. Market, Liaquatabad, Karachi. The respondent filed ejectment application under the provisions of section 13 of the West Pakistan Urban - Rent Restriction Ordinance, 1959, against the appellant on the ground of default in payment of rents from 1st April, 1971 upto 30th April, 1972 amounting to Rs, 585. The appellant denied all the allegations in her written statement and submitted, that appellant is the Pardah Nasheen lady and her husband Saeed Ahmed carries on business in the shop premises and he used to pay the rent of the shop on behalf of the appellant to the respondent. The appellant further alleged in her written statement, that respondent had friendly relations with her husband and consequently respondent had approached her husband for advance payment of Rs, 1,000, on the plea, that he was in need of said amount to raise further construction on the building in question and promised to adjust said payment in future rents. According to the appellant, the appellant's husband on 12th April, 1971 consequently paid Rs, 1,000 to the respondent, who executed the receipt Exh. 7/A and this amount according to the appellant covered the rents in respect of disputed premises upto 6th February, 1973 and as such there was no default committed by the appellant in the payment of the rents of the premises in question. The appellant in her written statement had further submitted, that the respondent had demanded increase in rent, from her husband, which request of the respondent was not agreed and consequently the respondent filed the ejectment application in question, in order to force the appellant to increase the rent.
3. That on the pleadings of the parties, the learned Rent Controller framed the following issues :-
(i) Whether opponent/appellant has made default in payment of rent ?
(ii) Whether the applicant/respondent took advance of Rs, 1,000 from the husband of the opponent/appellant as alleged ?
(iii) Whether the receipt in question was signed by the applicant/ respondent ?
(iv) What should the order be ?
4. The appellant examined himself as well as her husband, whereas respondent examined himself alone, before the learned Rent Controller. Beside this, Handwriting Expert, who had examined Exh.
7/A, was also examined before the learned Rent Controller.
5. The learned trial Court after taking into consideration the evidence of the P. W. 3 Mukhtar Ahmed, in respect of Exh. 7/A and having itself examined Exh. 7/A with the admitted signatures of the respondent came to the conclusion, that Exh. 7/A was a forged document and did not bear the signature of the respondent and consequently the learned Rent Controller came 'to the conclusion, that appellant had committed default in payment of rents of the shop premises in question, in respect of period from 1st April, 1971 to 30th April, 1972 and as such on this ground, allowed the respondent's application for ejectment, vide its order dated 31st August, 1978.
6. The appellant being aggrieved by the above-mentioned order dated 31st August, 1978 of the learned Rent Controller, preferred First Rent Appeal No, 514/78, in the Court of 1st Additional District Judge, Karachi, who by his judgment dated 25th November, 1980 rejected the said appeal, for the reasons given in his said judgment and confirmed the order of the learned Rent Controller in question.
7. The appellant, therefore, being aggrieved by the above-mentioned order and judgment of the learned lower Courts, has preferred this appeal on the grounds mentioned in the memo. Of appeal.
8. Learned counsel for the appellant urged before me that both the learned lower Courts have misread and misinterpreted the evidence on record and as such come to a wrong conclusion in respect thereof and in this connection, the learned counsel referred me to the statement of the respondent before the learned trial Court in which in his cross-examination the respondent has stated as under :- "It is correct that on 12th March, 1971 I had received Rs, 1,000 from Saeed Ahmed and passed on such receipt and the receipt does not bear my signature."
' According to the learned counsel for the appellant, that in the face of this statement of the respondent, even if Exh. 7/A is not the receipt executed by the respondent, still he admits to have received a sum of Rs, 1,000 from the appellant's husband and this amount ought to have been adjusted against the alleged default and as such since both the learned lower Courts have overlooked this important admitted fact on record, there is a clear misreading of evidence on record and, therefore, the order and judgment respectively of the learned lower Courts are liable to be set aside in this Second Appeal. In support of this contention, learned counsel has relied upon cases reported in 1973 SCMR, 606 and PLD 1976 Kar.
811.
9. Learned counsel for the appellant further submitted that no reliance can be placed on the evidence of Handwriting Expert, as the Handwriting Expert in question, has given no reasons in his report for arriving at the conclusions mentioned by him and in support of this contention, the learned counsel relied upon cases reported in PLD 1975 Pesh. 205 and PLD 1969 Dacca, 215.
Learned counsel further submitted, that since the appellate Court did not itself compare the signature of the respondent on Exh. 7/A with his admitted signatures on record, the learned Appellate Court has erred in arriving at its conclusion in this connection, by simply relying on the opinion of the Hand writing Expert.
10. Learned counsel for the respondent on the other hand submitted that this appeal is not maintainable against the concurrent finding of fact in respect of Exh. 7/A, by both the learned lower Courts and in support of this contention, learned counsel relied upon cases reported in AIR 1929 Privy Council, 152 and 1979 CLC 109 and 1979 CLC 518. Learned counsel, further in respect of the averments made by the learned counsel for the appellant, regarding alleged admission by the respondent in his cross-examination about the receipt of Rs, 1,000 on 12th April, 1971 submitted, that it is obviously a mistake, in the writing of the said statement, which is evident from reading of the entire cross-examination of the respondent on this point. Learned counsel further pointed out, that word "not" has been omitted after the words "it is" by the learned Rent Controller, while writing the statement of the respondent in question, which is obvious from the fact, that the respondent had earlier denied the allegations of the receipt of the loan and as such the question of misreading of the evidence on record does not arise at all.
11. I have carefully considered the submissions made by the learned counsel for the parties. It is an admitted position, that appellant had not paid rents from 1st April, 1971 upto 30th April, 1972 to the responden and the only plea that has been taken by the appellant for such nonpayment is that on 12th April, 1971 a sum of Rs, 1.000 was paid to the respondent vide Exh. 7/A and this amount was to be adjusted in future rents and consequently the appellant had by this payment paid the rentupto 6th February, 1973 and as such no default in payment of rents was made by the appellant and as such the ejectment application in question was not maintainable. In view of this, the only question which require consideration is whether Exh. 7/A has been executed by respondent in token of the receipt of Rs, 1,000 as alleged by the appellant or not. In this connection the respondent on oath has denied his signature on Exh. 7/A and P. W. 3 Mukhtar Ahmed the Handwriting Expert in his report and in his statement before the learned Rent Controller has stated, that Exh. 7/A does not bear the signature of respondent and as such as stated the said document to be a forged document. ##TE#The learned trial Court had also itself examined the signature of respondent on Exh. 7/A alongwith the other admitted signatures of the respondent on record and had also come to the conclusion, that Exh. 7/A is not signed by the respondent. The First Appellate Court no doubt has not itself compared the signature of the respondent on Exh. 7/A with the admitted signatures on record, but for the reasons given by it in its judgment has agreed with the conclusion of the learned trial Court, that Exh. 7/A does not bear the signature of respondent and as such has upheld the order dated 31st August, 1978 of the learned Rent Controller. I see no force in the arguments of the learned counsel for the appellant, that since the learned irst Appellate Court has not compared the admitted signatures of the respondent with the one on Exh. 7/A, the finding of the learned First apellate Court cannot be upheld. The reliance placed on PLD 1969 acca 214 by the learned counsel for the appellant in this connection is misconceived, as the facts and circumstances of the said case are quite different from the facts and circumstances of the present case. In the present case the respondent on oath has denied his signature on Exh. 7/A, whereas in the case reported in PLD 1969 Dacca 214, there was no such statement made by the executant, on the document.
12. The contention of the learned counsel for the appellant, that the finding of both the learned lower Courts in respect of Exit 7/A is a mixed question of fact and law and as such it can be set aside by this Court in the Second Appeal, in my opinion, also has no force. The finding in question is purely a finding of fact and as such it cannot be interfered in this Second Appeal as held in cases reported AIR 1929 P C 152, and 1979 CLC 109 and 1979 CLC 518. The reliance placed by the learned counsel for the appellant on 1973 SCMR 606 is misconceived, as in that case the fact was mixed question of fact and law, whereas in the present case the finding on Exh. 7/A is purely and simply a question of fact based on the evidence produced before the learned Rent Controller and as such the authority cited by the learned counsel for the appellant is not applicable to the facts of the present case.
13. In view of my above conclusion, I see no merits in the above appeal which is consequently dismissed, with no orders as to costs. However, I allow four months' time to the appellant to vacate the premises in his occupation and hand over its vacant possession to the respondent, provided he continues to deposit rent of the premises in his possession, in accordance with the tentative rent order, in the Court of learned Rent Controller, during this period.