JUDGMENTSAIDUZZAMAN SIDDIQUI, J.--This Civil Revision Application under Section 115 CPC is filed by the applicant/Decree Holder against the two concurrent orders of the Courts below. The circumstances which led to the filing of the above case may be stated as follows:-
2. The applicants'predecessor instituted Rent Case No,290 of 1968 against the predecssor of respondents under Section 13 of the west Pakistan Urban Rent Restriction Ordinance 1959, seeking eviction on the ground of defult in payment of rent and personal and bona fide requirement. For the sake of convenience, I will hereinafter refer in this order the predecessor of applicants as the 'landlard' and predecessor of respondents as 'tenant'. The rent Application was dismissed by the rent Controiisr on both the grounds on 18-11-1969, but the lst the Appellate Authority reversed the decision of rent Controller and granted eviction on both the grounds of default and personal and bona fide requirement. On further appeal, the Hight Court reversed the finding of lst Appellate Authority on issue of personal and bona fide requirement but maintained the eviction on the ground of default in payment of rent. A petition for special leave to appel before the Supreme Court against the order of High Court filed by the tenant was dismissed by order dated 25-1-1977.
However, the Honourable Supreme Court while dismissing the petition for special leave to appeal allowed 4 months time to tenant to vacate the premises. The landord, accordingly, after expiry of above period of 4 months filed execution application No.25 of 1977 before the Civil judge having jurisdiction in the matter. On service of notice of execution,the tenant filed an application on 21-9- 1977 under Section 47 C.P.C, before the executing Court and took the plea that under an alleged tenancy agreement executed by the landlord in his favour on 23-5-1977 (Ex.2) a fresh tenancy in respect of the premises has been created and as such the order of eviction is incapable of being executed against him. A photo copy of the alleged tenancy agreement (Ex.2) was filed with the application under Section 47 CPC. The landlord strongly denied execttion of any tenancy agreement in favour of tenant and claimed that the agreement of tenancy produced in Court was a fabrication and forgery, lt was asserted by the landlord that it was unimaginable that after having gone through the agony of a long drawn litigation of almost over nine years upto Supreme Court, the units of the decree would have been surrendered by him by accepting an increas of Rs.150/- per month in Rent. It was also urged before the executing Court that the tenant having already instituted a Civil Suit being No.1572 of 1977 for enforcement of this agreement of tenancy the plea could not be entertained by the executing Court. The executing Court, however, after recording evidence of the parties reached the conclusion that execution of tenancy agreement dated 23-5-1977 was established which created a fresh tenancy in respect of the premises in favour of tenany and as such the execution application was incompetent. On appeal the Appellate Court also concurred with the conclusions of executing Court and dismissed the appeal.Mr.SA.
Shamsi, the learned counsel for Decree Holder/Applicant has raised the following contentions in support of this Revision Application. It is firstly, contended by the learned counsel that the contention of tenant that the alleged tenancy agreement created a now tenancy in respect of the suit premises and as such the decree became in executable was outside the scope of Section 47 CPC specially when the tenant had already filed a Civil Suit seeking enforcement of the above alleged agreement of tenancy, which was pending before a competent Civil Court, lt support of his above contention, the learned counsel relied on the case of Radharani Vs: Brindarani (A.I.R.1939 P.C.27) The second contention of the learned counsel for the applicant is that the landlord had categorically denied his signature on the alleged tenancy agreement and had stated that it is forged. The matter was accordingly referred to Hand Writing Expert (DSP DIRECTOR FORENSIC SCIENCE LABORTARY, KARACHI) who in his report dated 23.4.1979 to the Court had expressed his inability to give his definite opinion in the absence of certain more information which were asked for in the above report. It is contended that the learned Courts below without providing the required information to the Hand Writing Expert and without waiting for his report and without having any expert assistance available to them embarked upon the enquiry to determine the genuineness or otherwise of the disputed signature which in the circumstances of case was not only hazardous but also unsafe and as such the findings by the Courts below in thisbehalf cannot be described as one based on my material. The third contention of the leamed counsel isthat the alleged tenancy agreement was executed on a stamp paper or the value of Rs.4/- and as such it was inadmissible in evidence and as such could not be considered in evidence unless it was impounded and deficit Court fee was recovered. Lastly, it is submitted by the leamed counsel that in the circumstances of the case the evidence on record did not established the execution of agreement of tenancy dated 23-5-1977 by the landlord. The learned counsel for the respondents on the other hand supported the orders of Courts below and conteneded that the Courts below have decided a question of fact concurrently and as such this Court in exercise of its revisional jurisdiction cannot interfere with such fiding however, erroneous it may be. It is also contended by the learned counsel that the Courts below were fully competent under Section 73 of the Evidence Act to decide the question of genuineness or otherwise of signature and as such no illegality can be said to have been committed by them if they decided this fact without awaiting the report of hand writing expert. It was also conteded that the execution of tenancy agreement was established by the evidence of two attesting witnesses of the document and as such the Courts below rightly held that fresh tenancy was created in favour of tenant by the disputed document and rightly refused to execute the order of Rent Controller. With regard to objection of applicants that plea of fresh tenancy could not be considered by the executing court under Section 47 C.P.C, the learned counsel maintained that such objection was appropriately decided in execution proceedings as it related to question of satisfaction of decree. After hearing the learned counsel for the parties at length, 1 am of the view that this Revision Application must succeed.Lt is an admitted position in the case that the parties were pitched against each other in a long drawn hotly contested litigation which started in 1968 and terminated only when the petition for special leave to appeal (No.K-62 of 1976) filed by the tenant was dismissed by the Supreme Court on 25-1-1977. It may be mentioned here that the Supreme Court While dismissing the petition for speeial leave to appeal filed by the tenant, allowed four months time to him for vacating the premises which expired on 25-5-1977. The execution application was according filed by the landlord on re-opening of the court after summer vacation in July, 1977, as soon after expiry of the period of 4 months allowed by the Supreme Court, the Civil Courts were closed for summer vacation from lst June, 1977. The tenant filed his objection/application under Section 47 CPC in the case on 21-9-1977 claiming that on 23-5-1977, the landlord entered into a fresh tenancy agreement with him effective from 1-5-1977 on enhanced monthly rent of Rs.300/- and as such no execution could be issued against him. It is an admitted position in the case that at the time the objection/application under Section 47 CPC filed by the tenant was heard by the executing court, the tenant had already instituted civil suit No.1572/77 against the landlord seeking enforcement of above agreement of tenancy. It is common ground between the parties that in view of Section 17 of the west Pakistan Urban Rent Restriction Ordinance, 1959, the order of eviction passed by the Rent Controller was to be executed by a Civil Court having territorial jurisdiction in the matter as a decree of that Court and as such the provisions relating to execution of decree contained in the Code of Civil procedure 1908 were applicable in the case. In these circumstances, the first question which arises in the case is whether the above plea of tenant could be entertained by the executing Court under Section 47 CPC. Ln the case of O.C.Bank Vs: Bind Basni Kuer (AIR 1939 P.C.80), the privy Council while considering the scope of Section 47 in execution procedings made following observations- "lf it appears to the Court, acting under Section 47, that the true effect of the agrement was to discharge the decree forthwith in consideration of certain premises by the debtor, then no doubt the Court will not have occasion to enforce the agreement in execution proceedings, but will leave the creditor to bring a separate suit upon the contract.
If, on the other hand,the agreement is intended to govern the liability of the debtor under the decree and to have effect upon the time or manner of its enforcement, it is a matter to be dealt with under Section 47. In such a case to say that the creditor may perhaps have a separate suit is to misread the Code, which by requiring all such matters to be dealt with in execution discloses a broader view of the scope and functions of an executing Court. Their Lordships are in agreement with the statement in 54 All 573 at P. 585 that "in numerous cases a compromise between the decree-holder and the judgment debtor entered into in the course of execution procedings, which was duly recorded, has enforced, and they are not of opinion that the practice, which is both widespread and inveterate, is contrary to the Code.
They are of opininon that in the present case the compromise can and should be enforced in these execution proceedings."In the light of the above observation 1 will now examine the effect of tenancy agreement dated 23rd May 1977, which was pleaded by the tenant as a bar to the issuance of execution against him. Lt is quite clear from reading of tenancy agreement dated 23- 5-77 that in effect this agreement provided for an immediate discharge of the decree of ejectment passed against the tenant by creating a fresh teanacy in respect of the suit premises in favour of tenant. The plea of fresh tenancy advanced by the tenant before the executing Court neither related to liability of tenant under the decree nor it had any effect upon the time or manner of its enforcement so as fall within the scope of enquiry under Section 47 C.P.C. 1 am, therefore, of the view that this plea of tenant could not be entertained under Section 47 C.P.C, in the execution proceeding and as observed by the privy Council in the above noted case the parties should have been left to agitate this aspect in a Civil Court in appropriate proceedings. Learned counsel for the respondent, however, urged that in view of paragrph 5 of the tenancy agreement it will be deemed that the decree of ejectment passed against tenant stood satisfied as a result of fresh agreement of tenancy dated 23-5-77. This argument of learned counsel for the respondent also cannot hold good in view of the provision of Order 21 Rule 2 CPC and Article 174 of the Limitation Act. Order 21 Rule 2(1) provides that where a money payable under a decree of any kind is paid out of the court or the decree is otherwise adjusted in whole or part to the satisfaction of decree holder the decree holder shall certify such payment or adjustment to the Court whose duty is to execute the decree and the Court shall record the same accordingly. Sub-rule (2) of the same rule further provides that the judgment debtor may also inform the court of such payment or adjustment and apply the Court for issuance of a notice to the decree holder to show cause why such payment or adjustment should not be recorded as certified and if after service of such notice the decree holder fails to show cause the Court shall record the same accordingly. Sub-rule (3) of rule 2 provides that any payment not made in the manner provided in Rule 1 or any adjustment not made in writing shall not be recognized by the court executing the decree. Sub-rule (3) of Rule 2 of Order 21 CPC provides a safeguard against making of false of payment or adjustment of a decree by the judgment debtor in course of execution proceedings. Aritde 174 of the Limitation Act provides a period of 90 days for making of an appliction to the Court for issuance of a notice to decree holder to show cause why any payment made out of the Court of any money payable under a decree or any adjustment of a decree should not be recorded as certified. The agreement of tenancy relied by the tenant is dated 23-5-1977 and, therefore,the adjustment of the decree if any, took place on the aforesaid date. The tenant should have applied for recording the alleged adjustment of decree within 90 days of the above date. The tenancy agreement was filed in Court alongwith theobjections/application under Section 47 CPC on 21-9-1977 which was clearly beyond time and, therefore, it could not be taken in to consideration by the executing Court. 1 am therefore of the view that the plea raised by the tenant that the ejectment decree stood satisfied could not be entertained by the executing Court under Section 47 CPC for the above reason as well.
5. The next objection of the learned counsel for the applicants is that the evidence on record did not in any manner establish the execution of tenancy agreement by the landlord on 23-5-1977. It may be mentioned here that the litigation between the landlord and tenant went on almost for a decade prior to the execution of alleged tenancy agreement dated 23-5-1977. The tenancy agreement was allegedly executed by the landlord two days before the expiry of time granted by the Supreme Court, to the tenant to vacate the premises. The execution application was presented by the landlord on 11th July, 1977 on reopening of the court after summer vacation. A reading of the objections under Section 47 CPC filed by the tenant as well as the agreement of tenancy dated 23- 5-1977 show that the dispute was settled amicably between the landlord and tenant on account of intervention of elders. It is significant that no where either in the evidence of the tenant or in the evidence of two witnesses exemined by the tenant to prove execution of tenancy agreement, it is alleged that the tenancy agreement was executed as a result of intervention of .Pvt. Ltd cannot be denied that in view of denial by the landlord and the circumstances under which tenant alleged execution of fresh tenancy agreement, it required a very cautious analysis of the evidence in the case. It cannot be lightly inferred in the circumstances of the case that the landlord who was litigating with the tenant for about ten years and had fought the case upto Supreme Court had surrendered the advantage for a nominal increase in rent from Rs.150/- to Rs. 300/-. 1 have already pointed out that both in the objection under Section 47 C.P.C filed by the tenant as well as in the tenancy agreement there is specific mention that the dispute between the landlord and tenant was settled at the intervention of the elders. The omission on the part of tenant to mention this important fact in his evidence and to examine the so called elders was very significant and made the case set up by the tenant extremely doubtful. The two witnesses Nasrullah Malik and Ghyasuddin examined by the tenant as attesting witnesses of deal were also not of such status that their evidence could be accepted inspite of above omission of tenant.These witnesses were admittedly intersted as admitted by the tenant and these witnesses in their cross-examination that they were friends and customers of the tenant. The tenant in his evidence completely faild to explain the resons for presence of these witnesses at the time of execution of tenancy agreement.
However, in his cross-examination he claimed that witness Nasrullah Malik came by chance at the time of execution of Ex.2 while other witness was a shop keeper close to the shop of tenant. Witness Ghayasuddin in his evidence stated that he was called by the tenant from his shop and when he reached the shop of landlord, the other witness was already sitting there. Nasrullah Malik the other witness on the other hand stated that the tenant took him to the shop of landlord when he signed Ex.2, He further stated that the other witness Ghayasuddin was also with him when they all went to the shop of landlord.These contradictory statements of the attesting witness in view of their close friendship with the tenant made their presence at the time of execution of Ex.2 highly doubtful in the circumstances of the case. The courts below also failed to take notice of another important fact which had come in the evidence of tenant. The tenant in his evidence alleged that at the time of execution of Ex.2 he paid one month's rent amounting to Rs.300/- to the landlord. When asked in the cross-examination to produce the receipt for the rent he replied that he did not obtain receipt for the rent. He also admitted that he did not give any notice to the landlord for not issuing the receipt. It is an admitted position that at the time the tenant allegedly paid rent the time granted by the Supreme Court to him to vacate the premises was about to expire. Could in the circumstance the conduct of the tenant in the demanding the receipt for the amount of rent allegy passd by him be described as the conduct of an ordinary prudent person. The answer to this must be found in the negative, ln additiou to it the admitted position in the case is that the disputed signature of the landlord on the agreement was referred to a Handwriting expert alongwith his admitted signature for opinion. The Handwriting expert while submitting a preliminary report to the Court on 23-4-1979 requested for further information in order to enable him to come to a definite opinion on the genuineness or otherwise of the signature on the agreement of tenancy (Ex.2). The executing Court Without supplying the required information to the Handwriting expert and without awaiting for the final report of expert took upon himself the task of comparing the disputed signature of landlord with his admitted signature in Chamber and that too without the assistance of the counsel for the parties, and reached the conclusion that the signature on the tenancy agreement were similar to the one which is admitted by the landlord. The first appellate court also followed the same course, lt may be mentioned here that the conclusions arrived at by the courts below did not disclose the procedure adopted by them for comparison of the two signatures by them in Chambers, lt is not even mentioned that any aid from any maginfying glass or some other technical process were employed by them while comparing the two signatures in Chamber in the absence of the counsel for the parties and the report of handwriting expert in this regard. The procedure adopted by the Courts below was totally contrary to the rule of prudence laid down by Superior Courts in this regard, ln a case of this anture where the signature was totally denied by one of the parties it was highly unsafe for the Court to have taken upon itself to determine the genuineness or otherwise of the signature without having available to it the assistance cf some expert witnesses. The procedure adopted by the Courts below was must more objectionable in this case as this was done at the time of writing of order without first comparing it in the presence of the counsel for the parties. I regret to say that while holding the singnature on the tenancy agreement as similar to the admitted signature of the landlord the two courts below did not given any reason for arriving at such conclusion. The order of the courts below also do not show that they took help of any technical process for reaching the above conclusion. The procedure adopted by the two courts below in the case for comparison of the two signatures was in complete ignorance of the rule of prudence laid down by the superior courts in this regard and as such their findings was not immune from scrutiny in the revisional jurisdiction of this Court as it also amounted to material irregularity on their part in ignoring the rule laid down by the superior court in this regard.
The applicant also rightly urged that the agreement of tenancy (Ex.2) was inadmissible in evidence for reason of being under stamped and this contention though raised secifically in the memo of appeal was not at all adverted to by the lst Appellate Court, ln these circumstances 1 am of the view that the findings of the two courts below in the circumstances of the case that the tenancy agreement was executed by the landlord can be accepted as a concurrent findings of fact based on legal evidence. 1 accordingly hold that the evidence on record did not justify the inference by the Courts below that tenancy agreement was executed by the landlord and allow this Revision Application, set aside the orders of the two courts below and remand the case back to the executing Court with direction that the execution application be disposed off in accordance with law. The applicants will also be entitled to the costs of this petition.