' This is an application under Article 9 of the Provisional Constitution Order, 1981, at the instance of Muhammad Ibrahim and is directed against order dated 16-6-1984 of District Judge, Vehari, upholding order dated 13-5-1981 of Rent Controller, Burewala directing ejectment of the aforesaid Muhammad Ibrahim from Plot No. 62/N.
2. Faiz Muhammad claiming to be the transferee of the aforenoted plot in occupation of Muhammad Ibrahim applied to the Rent Controller for eviction of the present applicant on the ground of default in payment of rent and personal necessity. Muhammad Ibrahim in his written reply, objected to the assumption of jurisdiction by the Rent Controller and also denied the relationship of landlord and tenant. It was further stated in the ejectment petition that the plot in dispute was in his possession since the year 1947 and that with his own expense he had raised construction thereon for his own residence. Rent Controller, on the objections of the respondent Muhammad Ibrahim, framed the following preliminary issues:-
(1) Whether there exists relationship of landlord and tenant between the parties? OPP.
(2) Relief.
' In support of the above preliminary issues Faiz Muhammad produced, Mukhtar Muhammad Postman to prove service of notice and appeared himself as P.W. 2 to support his own title to the plot in dispute. This was the entire evidence produced on his behalf. On the other side, Rehmat Ali and Muhammad Ibrahim appeared. It was stated by Rehmat All that Muhammad Ibrahim was in possession of the plot and that he had raised construction thereon. Muhammad Ibrahim also stated that he was in possession of the plot in dispute and that he had constructed a house thereon. However, it was admitted by him in cross-examination that no formal transfer order exists in his favour.
2. Rent Controller vide order dated 3-5-1981, found the preliminary issues in favour of Faiz Muhammad and ordered ejectment of Muhammad Ibrahim. In so holding in favour of the applicant Faiz Muhammad, Rent Controller relied on copy of Register Haqdaran Zamin placed on record. An appeal was taken before District Judge, Vehari. It was dismissed on 22-5-1983. These orders were assailed in constitutional jurisdiction in Writ Petition No. 881 bf 1983. Petition was allowed vide order dated 6-7-1983 by a learned Single Judge of this Court (Multan Bench).
Relevant observations are found in para. 3 of the aforesaid order which for facility of reference are:- "It has been urged before me that this judgment passed in appeal is based on the facts and evidence of a case other than that between the parties. There is nothing to disagree with the learned counsel for the petitioner. It appears that the learned lower appellate Authority had a different file before it while deciding this case. Therefore, it has resulted in passing of the impugned order contrary to law. The order of the learned District Judge in appeal cannot be said to have been passed with lawful authority."
' Appeal on remand was reheard by District Judge, Vehari. It did not succeed and was dismissed on 16-6-1983.
3. Constitutional petition was admitted to examine whether the Courts below were justified in relying on copy of Register Haqdaran Zamin not part of record, in that it was neither formally tendered in evidence nor exhibited. Learned counsel for the parties have been heard. Mr. Muhammad Younis Bhatti Advocate, for the applicant Muhammad Ibrahim, contended that the Courts below seriously erred in relying on and basing their conclusions on the entries in the Register Haqdaran Zamin 1972/73 without its having been formally tendered in evidence. Precise objection was that the aforesaid document was not part of the record. Learned counsel also submitted that the Rent Controller had no jurisdiction to proceed as the provisions of the Rent Ordinance were inapplicable to "plots". Referred to Ayub and another v. Masjid-e-Noman 1973 SCMR 604.
4. Sh. Zia-ud-Din Ahmad Qamar Advocate, appearing for respondent Faiz Muhammad supported the orders passed by the Courts below and submitted that the Courts acted with perfect jurisdiction in placing their reliance on the entries of Register Haqdaran Zamin. Relied on Nathe Khan v. Mst. Rehmat Bibi and others PLD 1961 (W.P.) B.J. 96, Begum Zainab Tiwana v. Ch. Aziz Ahmad Waraich, District Judge and others PLD 1967 Lah.
977. He also contended that the concurrent judgments are not open to interference in constitutional jurisdiction. Referred to Muhammad Hussain Munir and others v. Sakandar and others PLD 1974 SC 139.
5. I have examined the record and have given careful consideration to the arguments raised by learned counsel for the parties. Copy of Register Haqdaran Zamin on which reliance has been placed was not tendered in evidence by Faiz Muhammad or his counsel. P.T.D., has also not been formally introduced in evidence. Question falling for decision is whether in such circumstances when the document had not been tendered in evidence formally by the applicant, was the Court justified in placing reliance thereon for holding against the opposite party. It is no doubt correct that the provisions of the Code of Civil Procedure and the Evidence Act do not apply to proceedings under the Rent Ordinance yet unless a document was produced by a party after proving it in accordance with law it could not be treated "evidence" for the purposes of deciding the controversy raised before Rent Controller. Judgments relied on by Sh. Zia-ud-Din Ahmad Qamar, Advocate proceed on distinguishable facts. In PLD 1961 (W.P.) B.J. 96 the document had been placed on file by the plaintiff herself and was being used against her. In PLD 1967 Lah. 977 at 990 the Court observed:- "We would like to emphasise one more aspect of the case in support of the above-mentioned futility. It is that respondents Nos. 3 and 4 have placed on the record of these proceedings copies of the previous and the subsequent applications of the petitioner presumably in order to enable us for ourselves to see their contents. Can they contend now that we should riot look at their documents and proceed blindfolded? We do not think so."
6. In the case on hand the facts are slightly different, in that the document is being used against the opposite party. Strictly speaking aforesaid document did not form part of the record of the proceedings. Thus I hold that the Courts below have relied on a piece of evidence, a very important one indeed, in giving their findings against the present applicant. This document could not have been considered in evidence unless it was brought on the file in accordance with law. Judgment of the Courts below suffered from a serious error of law being based on evidence, not part of the record. Concurrent decisions, therefore, loose much of their efficacy. It is no doubt correct that the scope of interference in constitutional jurisdiction is very narrow and limited but it is equally true that High Court can legitimately step in arid set aside an order based on evidence which in absence of proper proof could not have been considered. Copy of Register Haqdaran Zamin 1972/73 shows that Faiz Muhammd owns 26 shares out of 79 shares in land measuring 8 M 7 S. In column 4 of the aforesaid Jamabandi various persons are shown in possession. Evidence whether construction on the plot exists and that who had raised it has also not received proper attention of the Courts below.
7. In the result, I am of the opinion that the ejectment application has not been properly disposed of. Writ petition is allowed, impugned orders are set aside and declared to have been passed without lawful authority. Ejectment petition is remitted to Rent Controller Burewala, for its decision afresh in accordance with law after allowing an opportunity to the parties to lead further evidence if so desired by them. No order as to costs. Parties are directed to appear before Rent Controller on 30-3-1985. Since it is a rent matter, Rent Controller, may look to the propriety of deciding the same expeditiously.
Writ issued.