1. ' This is a revision application directed against the order of District Judge, Tharparkar at Mirpurkhas, dated 20-11-1979 whereby the judgment and decree of the Civil Jurdge, Mlrpurkhas, dated 27-2.1975 was reversed.
2. ' The relevant facts are that the respondent Mst. Shafiat had filed a suit on 23-1-1973 for declaration, partition and possession of land alleging that she was daughter of Muhammad Esmail who was the pre-deceased son of Gangu and was entitled to the estate left by Gangu. The said suit was resisted by Muhammad Khan and others as the admitted heirs of Gangu. They denied that Mst.
3. Shafiat was the daughter of Muhammad Esmail and alleged that Muhammad Esmail had died issueless, Evidence was led on both sides. Mst. Shafiat had examined Haji Khair Muhammad who was a Khas-khaili, who had stated that Shafiat was the daughter of Esmail. Mst. Shafiat also examined herself. Mst. Shafiat also got produced the record and proceedings of the order of Deputy Commissioner in an appeal before the Deputy Commissioner, Tharparkar which she had filed against the mutation affected in respect of the lands left by Gangu in favour of Muhammad Khan and otheRs, The report of the Mukhtiarkar which was the basis of the judgment of the Deputy Commissioner was also summoned and produced. The defendant had examined one Abdul Karim who claimed to be maintaining a Shijra. Muhammad Khan also examined himself, D.W. Karim Bux and one Mst. Jeno who was a Dai. All of them stated that Esmail had died issueless.
4. ' The learned Civil Judge had relied upon the evidence of Abdul Karim and others and he had especially relied upon the Shijra of the family of Gangu produced by Abdul Karim. The Civil Judge had discarded the evidence of Haji Khair Muhammad and of Shafiat. The Civil Judge however, did not take into consideration the revenue record and dismissed the suit of the respondent.
5. ' The District Judge on the other hand discarded the evidence of Abdul Karim on the ground that the Shijra was not properly maintained and that important entries like that of the son of Muhammad Khan had not been made in that Shijra for 30 years, He relied upon the evidence of Haji Khair Muhammad. He was of the opinion that the deposition of persons like Jeno Dai could be procured by anyone. He also relied upon the Revenue record produced on behalf of the respondent and noted that respondent Muhammad Khan had appeared before the Assistant Commissioner and in his written statement as well as during the hearing before the Assistant Commissioner respondent Muhammad Khan had admitted that Mst. Shafiat was daughter of Esma,i1. The District Judge however, noted that the written statement of Muhammad Khan before the Revenue Authorities had not been tendered in evidence but relying upon PLD 1969 SC 136, where it was held that a previous inter parties judgment is admissible to prove a statement, admission or acknowledgment made by a party in his pleadings in his previous litigation as well as the allegation made by it in the pleadings on that occasion, he considered that it was a complete answer to the contention that written statement before Revenue Authorities had not been proved.
6. ' Mr. A .Q. Halepota and Mr. Abdul Mateen have submitted that the learned District Judge was not justified in relying upon the Revenue Record because the admission made, if any, by OA present appellant before the revenue authorities had not been proved. In respect of this submission I find that the plaint in this suit shows that the document produced with the plaint is the order of the Deputy Commissioner. The documents relied upon are the revenue records and City Survey record.
7. The first witness summoned by the plaintiff was P.W. 1 Karam Chand who had produced the appeal of Mst. Shafiat before the Revenue Authorities, dated 1-1-1970 and the statements of Haji Khair Muhammad and Mst. Shafiat recorded by the Assistant Commissioner Mukhtiarkar as well as the report of the Mukhtiarkar, dated 25-1-1972 where it had been clearly mentioned that the parties were called on 8-1-1972 and heard. It was also mentioned that the parties had nothing to add to their written statement already filed before the Mukhtiarkar, Mirpurkhas. The Assistant Commissioner had also mentioned that the parties were given advice that they could amicably settle the matter. The Assistant Commissioner had submitted a 28 pages report to the Deputy Commis sioner, Tharparkar in that respect has also observed that parties were uncle and niece. The same P.W.1 had also produced the order of the Deputy Commissioner, dated 18-9-1972 in the matter of Mst. Shafiat Begum v. Muhammad Khan and Mst. Jamal Khatoon in the appeal filed by Shafiat Begum in respect of mutation of record of rights made by Mukhtiarkar. The Deputy Commissioner had noted that the respondent had remained absent though served. He had made the following order:- "The deceased Gangu had died on 15-9-1961 i.e, after the promulgation of Muslim Family Laws Ordinance. The appellant was, therefore, entitled to get her legal share from the property of her grandfather, but according to Shariat Law the appellant is absolutely not entitled to get any share from the property of her grandfather when her father (Muhammad Esmail) has expired during the lifetime of her grandfather Gangu. I being a Musalman, consider the Shariat Law Supreme authority accordingly I reject the appeal of the appellant."
8. ' I have quoted extensively from the report of Assistant Commis sioner, Mirpurkhas as well as the order of the Deputy Commissioner, Tharparkar, dated 18-9-1972, in order to appreciate whether the inference drawn by the learned District Judge, Tharparkar about the admission of relationship by Muhammad Khan before Revenue Authorities was correct or not. It is quite clear from the reading of this record that at that time Muhammad Khan had not challenged the status of the present respondent as the grand daughter of Gangu and had merely relied upon a legal stand that she was not entitled to inherit because her father Esmail had died during the lifetime of his father Gangu.
9. ' These Revenue Records had been the first documents produced in this case on behalf of the plaintiff/respondent but the appellant had not made any mention to any of those records in his statement and he had thus not challenged their authenticity or authority..
10. ' Mr. A.Q. Halepota had submitted that the appellant had not made any admission and that the revenue proceedings were completely ex parte and without notice to appellant and hence not binding upon the appellant. I am sorry I cannot accept this submission of the learned counsel in view of the fact that there is no basis on record for such submission. If the applicant in his deposition had made any such statement to the effect which is now being sought to be argued by the learned counsel for the applicant, then there could be some justification for such argument.
11. However, the applicant Muhammad Khan has completely remained silent on this aspect of the case and has not explained the proceedings or the results which could be drawn from those proceedings. Therefore, these proceedings remained completely unchallenged by the applicant.
12. ' As to the submission of lack of notice to appellant in Revenue Case I have to draw presumption under section 14 of the Evidence Act that the official acts have been performed regularly. Therefore, when the Assistant Commissioner has submitted in his report, dated 25-1-1972 that he had called the parties and had heard them and they had nothing to add to their written statement, I have to believe such position to be correct. And, therefore, it is obvious that applicant Muhammad Khan had notice of those proceedings and had appeared before the Assistant Commissioner, Mirpurkhas but he had not made his appearance before the Deputy Commissioner. And hence this suggestion that the proceedings before the Revenue Authorities were not binding upon Muhammad Khan is not correct. In fact Muhammad Khan had never alleged that he had no notice of such proceedings.
13. ' Both learned counsel thereafter submitted that the inference drawn by the District Judge from those proceedings is not correct. I am unable to agree with these submissions as I find that the Assistant Commissioner Mirpurkhas has referred to the parties as uncle, neice and had noted that the nature of decision that would take place would be in regard to legal points. That legal point is clearly explained in the order of the Deputy Commissioner, Tharparkar, dated 18-9-1972 where he has clearly referred to Mst. Shafiat as the grand-daughter of Gangu and has also held that she would have been entitled to get her legal share from the property of her grandfather according to Muslim Family Laws Ordinance but according to Shariat Law was not entitled to get any share as her father Muhammad Esmail had expired during the lifetime of her grandfather Gangu. It is, therefore, obvious that the Deputy Commissioner has viewed Mst. Shafiat as the undisputed grand-daughter of Gangu and the daughter of Esmail but the legal point on which he has decided against Mst. Shafiat is that the pure Muslim Shariat Law does not help her because her father had died during the life of her grandfather and hence she was not entitled, according to Shariat Law to claim inheritence from Gangu even though the Muslim Family Laws Ordinance gave her the right of getting the legal share from the property of her grandfather in place of her predeceased father. In these circumstances the inference drawn from this proceedings by the learned District Judge, the status of Shafiat as grand-daughter of Gangu was admitted by Muhammad Khan, was completely justified. It was held in PLD 1969 SC 136 as under:- "But where the judgment is inter partes, even recitals in such a judgment are admissible. A previous judgment is admissible also to prove a statement or admission or an acknowledgment made by a party or the predecessor in interest of a party, in his pleadings in a previous litigation.
14. "Similarly a judgment narrating the substance of the pleadings of the parties to a litigation is admissible to establish the allegations made by them on that occasion."
15. ' In PLD 1978 Quetta 45 it was observed as under:- "Inter parts judgments, though not conclusive evidence for or against parties, on any point dealt within, but can be relied to prove statement or admission made in earlier case as well as to discover nature of pleadings in previous litigation.
16. ' In PLD 1968 Lah. 954 the revenue judgments between ancestors of parties were relied upon in the circumstances of that case as binding between those parties although it was clearly observed that they were not res judicata.
17. ' It is, therefore, obvious that the District Judge had not committed any error of law or otherwise in relying upon the revenue proceedings inter parties and drawing the inference from the nature of pleadings in those proceedings and the order of the Deputy Commissioner.
18. ' The learned counsels for the applicant then contended that the evidence of Khair Muhammad should not have been relied upon the District Judge because in view of section 50 of the Evidence Act a witness who is giving an opinion as to the relationship of one person to another should depose about the conduct of the society towards that person as a member of the family or otherwise, if he has special knowledge on the subject. They relied upon PLD 1976 SC 767 (778) where it was held that in the matter of relationship it is the conduct of family, on which opinion about relationship is based, which should be established. However, in the present case I find that Khair Muhammad has not only based his opinion upon the conduct of the relations of the family but has made a statement on the basis of his own information and that information has not been seriously challenged in the cross-examination.
19. ' Mr. A.Q. Halepota had however, contended that since Khair Muhammad was a Khas Kheli, therefore, he could not know the family matters of Teli's to which family, Gangu deceased, belonged, I however, find that Khair Muhammad made clear statement that Gangu used to visit the house of Mubarak who was the husband of plaintiff/respondent and that Khair Muhammad knew Gangu for his whole life. In these circumstances Khair Muhammad was in a position to make a statement on the basis of his personal knowledge and his statement was an opinion based on the conduct of the members of the family or society. Even otherwise the visit of Gangu to the house of appellant and her husband was a clear indication of the relationship existing between them.
20. In any case I find that the appellate Court has simply taken a different view of the evidence produced by the parties, than the view taken by the original Court. The appellate Court has the right in law of disagreeing with the view of the original Court in respect of the same evidence, and unless and until was shown that the view of the appellate Court was completely unfounded or fallacious or not at all warranted by the record, the view of the appellate Judge should not be interfered with by the High Court in revision.
21. ' In these circumstances I do not find any force in this Revision Application and the same is hereby dismissed with costs. Application dismissed.
22. 1984 M L I) 579 [Karachi] Before Abdul Hayee Kureshi, C.J. and K.A. G1ani, J AMIR ALI ZIA--Petitioner versus SENIOR CIVIL JUDGE/RENT CONTROLLER and others--Respondents Constitutional Petition No, D-368 of 1981, decided on 14th April, 1981. (a)
23. Provisional Constitution Order (1 of 1981)-- ---A rt. 9--Sind Rented Premises Ordinance (XVII of 1979), S. 15-- Ejectment petition--Preliminary issue, decision on--Evidence of tenant closed on preliminary issue but Rent Controller allowing landlord to produce documents and lead evidence on all issues including preliminary issue-- Orders of Rent Controller being interim in nature, Rent Controller, held, committed no error in deciding to proceed with whole case instead --decidingpreliminary issue at first instance-- Interference declined in constitutional jurisdiction. [p. 582] A & B Ayub Khan v. Fazle Hay PLD 1976 SC 422 and Muhammad Hassan Khan v. Muhammad Azam Khan 1979 SCMR 617 ref.
(b) Provisional Constitution Order (1 of 1981)-- --Art. 9--Sind Rented Premises Ordinance (XVII of 1979), S. 21--Constitutional jurisdiction-- Invocation qua interim orders of Rent Control ler--Interim orders passed by Rent Controller cannot be questioned before High Court in constitutional jurisdiction. [p. 5821 A Kandawala's case 1969 SCMR 720 rel. A.R. Mirza for Petitioner.
24. Date of hearing: 14th April, 1981.
25. ' ABDUL HAYEE KURESHI, C J.--The petitioner has challenged the orders of the learned Rent Controller, Karachi passed on 17th August, 1980 and 14-3-1981, by filing this petition under Article 9 of the Provisional Constitution Order, 1981. The brief facts are as follows:-
(1) The petitioner claims that he is a tenant in respect of premises bearing No, 209, Hyderabad Colony, Karachi at the rent of Rs,40 per month since June, 1960. According to him one Abdul Malik Saeed is the landlord to whom he used to pay the rent and that the respondent No,2, never served him with notice under section 13-A of Sind Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance of 1959). A case for ejectment however, was filed by the respondent No,2 against him on 21-2-4975 in the Court of the Rent Controller at Karachi under section 13 of the Ordinance of 1959. The petitioner filed his written statement wherein, inter alia, he challenged the maintainability of the application, on the ground of want of relation ship of landlord and tenant between the parties.
2. The Rent Controller on the pleadings of the parties framed the following preliminary issue and directed the parties to lead evidence on the said issue and file their documents if any within 7 days.
26. "Whether there is relationship of landlord and tenant between the parties, if not its effect?"
27. ' The evidence of the respondent No,2 was recorded on 20-11-1975, when he orally requested for time to produce certain documents. The learned Rent Controller however, disallowed the request so made.
3. On the next day i.e, 21-11-1975, the respondent No, 2 moved an application praying permission to produce certain documents which the learned Rent Controller disallowed by order passed on 21-1- 1979. Thereafter from time to time the case was adjourned for further evidence. On 22-7-1979, the applicant and his Advocate, were absent accordingly their side on preliminary issue was closed.
28. ' On 24-7-1979 an application was moved on behalf of the applicant for re-opening of the case but the said application was rejected by order passed on 3-2-1980.
4. In the meantime on 22-11-1979 the Ordinance, of 1959 was repealed and Sind Rented Premises Ordinance, 1979 hereinafter referred to as S.R.P. Ordinance 1979 was promulgated.
5. On 20-5-1980 the respondent No,2 moved an application praying therein to fix the entire case for evidence by affidavits of the applicant (landlord). It was submitted in that application before the Controller that in view of the Sind Rented. Premises Ordinance, 1979, the preliminary issue had to be decided along with the main case. He also prayed that the tenant (petitioner) be directed to deposit rent under section 16(1) of S.R.P. Ordinance, 1979. The learned Rent Controller on the aforesaid application by order passed on 17-8-1980 passed by the following order:- "Heard learned counsel for the parties and perused,. the affidavit and objection. In the case preliminary issue was framed but the same has not been decided and the evidence was led by the applicant. The law has been changed and whole case will be decided. This application is allowed with no order as to cost. The applicant is directed to file affidavit in evidence. The case is old one and so many dates, five years lapsed, put up to 31-8-1980 for affidavit."
29. ' No order for deposit of rent was passed against the petitioner. The respondent No, 2 accordingly filed affidavits of his witnesses and produced his documents with his affidavit. The petitioner however, filed an application objecting to the production of documents. The learned Rent Controller rejected this application by order passed on 14-3-1981 which reads as follows:.- "This order will dispose of an application under section 151, C.P.C., dated 3-3-1981 filed on behalf of Opponent have heard the learned Advocates for the parties.
30. ' By order, dated 12-9-1980, the applicant has been permitted to file affidavit on entire case.
31. Naturally all the documents which he will rely will be filed along with the affidavit of the applicant.
32. The applicant cannot be prevented from filing the documents which he relies in evidence when he has been permitted to file the affidavit on entire case. Under the circumstances, I' dismiss the application under section 151, C.P.C. filed on behalf of the opponent."
6. The petitioner being aggrieved by the aforesaid order has presented this petition and has challenged the orders, dated 17-8-1980 and 14-3-1981 passed by the Rent Controller in the aforesaid ejectment proceedings.
7. The contention of the learned counsel is that since relationship of landlord and tenant between the parties was in dispute and the preliminary issue had already been framed and evidence of respondent No,2 who claimed to be the landlord had been closed, the Rent Controller acted without lawful authority in passing the impugned orders, dated 17-8-1980 and 14-3-1981 and thereby indirectly allowing the respondent No, 2 to produce documents and lead evidence on all the issues including the preliminary issue. According to the learned counsel the evidence of the petitioner on preliminary issue had already been closed, and could not be allowed to be re-opened by the learned Rent Controller.
33. ' We have considered the above arguments of the learned counsel for the petitioner and are of the opinion that the impugned orders, dated 17-8-1980 and 14-3-1981 cannot be challenged or impugned under Article 9 of the Provisional Constitution Order, 1981 by invoking the extraordinary jurisdiction of this Court. It would be seen that the procedure under the Sind Rented Premises Ordinance, 1979 is to be followed by the Pent Controller as provided under section 19 and that by virtue of subsection (5) of section 19 thereof it is provided that:- "The Controller shall, instead of formally framing issues arising between the parties, state them briefly in the judgment and shall record findings on each such issue separately."
34. ' In view of the procedure thus prescribed the learned Rent Controller, passed the impugned orders in the case, which was still pending before him. The learned counsel for the petitioner however, contended that since the evidence of the petitioner was already closed on preliminary issue, the Rent Controller ought to have decided the preliminary issue in the first instance.
35. ' We are however, not impressed by this argument. It is laid down in the case of Ayub Khan v. Fazle Hay PLD 1976 SC 422 that it is within the Controller's exclusive jurisdiction to adopt such procedure as to do justice between the parties. As to the discretion of the Rent Controller in the matter of procedure the Honorable Supreme Court in the same case observed as follows:- "And further even if the Rent Controller's order be erroneous it would be an erroneous exercise of the discretion vested in him under the Ordinance, but an erroneous order is not an ultra vires order."
8. The case of Muhammad Hassan Khan v. Muhammad Azam Khan 1979 SCMR 617 may also be referred here wherein the Honorable Supreme Court while dealing with a case arising out of ejectment proceedings under the Rent Restriction Laws, held as follows:- "The High Court also seems to have correctly taken the view that the order, dated 12-7-1978 passed by the executing Court should not be made a subject-matter of challenge in the exercise of writ jurisdiction. It is evident that the executing Court has the jurisdiction to dispose of the objection filed before it by the petitioner and consequently it could pass legal as well illegal order which could not be questioned in the exercise of consti tutional jurisdiction of the High Court."
36. The impugned orders are interim orders in nature. Even if the learned Rent Controller committed any error in deciding to proceed with the whole case instead of deciding preliminary issue in the first instance, as contended by the learned counsel, such interim orders cannot be questioned in the High Court in the exercise of its constitute-A national jurisdiction. It would however, be open to the petitioner to challenge these impugned orders in appeal under section 21 of the Sind Rented Premises Ordinance, 1979 in case final order passed, goes against him and the appellate Court alone would have the jurisdiction to decide the propriety or otherwise of the said orders, This conclusion finds support from Kandawala's case reported in 1969 SCMR 720.
37. As a result of the above discussion, we do not find any reason to interfere with the impugned orders in this petition. It would be B open to the petitioner to raise these objections in appeal against final order under the relevant law.
38. ' The petition is accordingly dismissed in limine.