IRSHAD HASAN KHAN, J. This petition under Article 199 of the Constitution of Islamic Republic of Pakistan calls in question the order dated 17.5.1990 of the learned Additional District Judge, Lahore, whereby he set aside the order dated 6.2.1990 of the learned Rent Controller, Lahore, dismissing the application of respondent No. 1, seeking ejectment of the petitioner Bhag Din from a shop in property No. 2-Main Bazar, Ichhra, Lahore.
2. Briefly the facts are that Mian Hamid Mahmood respondent No. 1 filed an application for ejectment under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, for ejectment of Bhag Din petitioner from a shop forming part of property No. 2, Main Bazar, Ichhra, Lahore, on the ground of personal use and default in payment of rent from August, 1987, till the filing of ejectment petition.
3. The respondent contested the application and raised a preliminary objection as to the maintainability of ejectment application on the ground that no relationship of landlord and tenant existed between the parties and that Muhammad Jahangir petitioner No.2 herein, was the tenant of Mian Hamid Mahmood respondent No. 1 herein. It may be pointed out that Jahangir was never impleaded as party to the proceedings before the learned Rent Controller or in appeal before the learned Additional District Judge. He, however, appeared as witness on behalf of the petitioner.
4. In view of the pleadings of the parties, the learned Rent Controller framed an issue, whether relationship of landlord and tenant existed between the parties. Mian Hamid Mahmood respondent No. 1 in support of his case produced Muhammad Rafiq AW1 and Muhammad Shafi AW2 and also appeared himself as AW3. The petitioner produced Muhammad Jahangir RW1, Muhammad Muzaffar RW2 and also appeared himself as RW3.
5. Learned Rent Controller after appreciating the evidence on record, gave a finding that the petitioner was proved to be in occupation of the shop in dispute but it had not been established that relationship of landlord and tenant existed between the parties. It was also observed that the petitioner was a tenant of the father of the respondent and the death of the respondent's father would not ipso facto create relationship of landlord and tenant between the petitioner and respondent No. 1, that is to say, the son of original landlord.
6. On appeal, the learned Additional District Judge, Lahore, after re appreciating the evidence held that relationship of landlord and tenant existed between the parties the petitioner was a wilful defaulter in payment of rent. Consequently, the appeal was allowed by setting aside the order of the learned Rent Controller.
7. The learned counsel for the petitioner submits that the learned Additional District Judge, Lahore, has erred in law in placing reliance on the rent deed Exh. A1 inasmuch as the rent deed was executed on 17.10.1963 whereas the stamp paper was purchased on 17.11.1963. The contention has no force. There was no bar on the parties to create tenancy with effect from 1.10.1963 on the basis of a stamp paper purchased on a later date. I have perused the rent deed. The first page of the rent deed Exh. A1 shows that the stamp paper was purchased on 17.11.1963 and the second page shows that it was purchased on 17.10.1963. The rent deed was written on 17.10.1963. I am, therefore, inclined to hold that the deed was purchased on 17.10.1963 and due to inadvertence date of purchase on the first leaf was given as 17.11.1963.
8. Be that as it may, no question was put by the petitioner to respondent landlord on this discrepancy which is not of a substantial nature. This disputed question of fact cannot be allowed to be raised for the first time in writ jurisdiction.
9. Lt is next contended that the rent deed Axh. A 1 was not executed between the petitioner and respondent No. 1. This again is a disputed question of fact which cannot be permitted to be raised in writ petition. The learned Additional District Judge recorded a finding of fact that no receipt about payment of rent by Jahangir the alleged tenant of the shop in dispute was produced in court nor any rent note was produced by him in connection thereto. He believed the evidence produced by the contesting respondent in holding that relationship of landlord and tenant existed between the parties. This was within his competence. The learned counsel for the petitioner has failed to point out any misreading of evidence. The point raised by the petitioner's counsel relates to re-appreciation of evidence, which cannot be undertaken in these proceedings.
10. It is next contended that description of the property in dispute in the rent deed is different qua the ejectment application inasmuch as, in the plaint the northern boundary of the shop in dispute is "shop under the tenancy of Khadim Hussain" whereas in the rent deed Exh, Al it is shown as Duhri of the 'Malik Makan'. There is however, no dispute as to the identity of the disputed shop and the misdescription pointed out is not fatal.
11. It is next argued by learned counsel for the petitioner that the witnesses produced by the contesting respondent were untrust worthy. The learned counsel for the petitioner has. Overlooked that the question of believing or unbelieving a witness is the function of the trial court and the, appellate court alone.
12. Learned counsel for the petitioner further submitted that the rent deed Exh. A1 was not admissible in evidence, inasmuch as, it should have been attested by two witnesses in terms of Article 17 (2) (A) of the Qanun-e-Shahadat 1984, which provides that in all matters pertaining to financial or future obligations if in writing, the instruments are to be attested by two men or one man and two women. It was submitted that here the document was attested by Syed Ayyaz Ahsan and Muhammad Rafiq on the first page but on the second page only one witness appeared and none of these witnesses appeared in court except Bhag Din who has denied its execution. The contention has no force. The document in question was executed in 1963, whereas the Qanun-c- Shahadat was promulgated in 1984. It docs not apply retrospectively to documents already executed and are past and closed. Be that as it may, Muhammad Rafiq AW1 one of the marginal witnesses of the rent deed appeared before the court. The stamp vendor died and could not be produced in evidence. It is, therefore, difficult to hold that the execution of the rent deed Exh. A1 was not duly proved.
13. The impugned order of the learned Additional District Judge is based on appreciation of evidence which does not suffer from any legal infirmity warranting interference in the exercise of writ jurisdiction. The petition, therefore, fails and is hereby dismissed, but there shall be no order as to costs.