JAWAID NAWAZ KHAN GANDAPUR, J.---The vires and the legality of the ejectment order passed by the Rent Controller, Dera Ismail Khan, on 5-5-1991 has been challenged by petitioner Khalid Mehmood through this Constitutional petition. He has also assailed the order of the District Judge, Dera Ismail Khan, dated 4-7-1991 vide which the ejectment of the petitioner from the disputed shop was affirmed/confirmed.
2. The facts of the case, in brief, are that respondent. No.3 claims to be the owner of the disputed shop, as described in the application, filed under section 13 of the Urban Rent Restriction Ordinance, 1959, and who had rented out the same to the petitioner on payment of Rs.300 per month in 1981, that the rent was being regularly paid by the tenant. However, he failed to pay the rent from 1-1- 1989 to 30-6-1989. Consequently a notice was served upon the petitioner to clear the arrears and to hand over the possession of the shop in question to respondent No.3 on the grounds:--
(a) that the petitioner had defaulted in the payment of rent; and
(b) that the shop, in question, was required/needed by respondent No.3 for his personal use in good faith.
3. All the averments as contained in the application were, however, denied by the petitioner. Since the petitioner had denied the relationship of tenant and landlord between the parties, therefore, the Rent Controller framed the following preliminary issue:-- "Whether the relationship of landlord and tenant exists between the parties?" and put the parties on trial. Oral as well as documentary evidence was produced pro and contra by the contesting parties in support of their respective claims.
4. The Rent Controller, after considering the evidence, thus produced by the parties, came to the conclusion that the relationship of landlord and tenant existed between the parties and since the petitioner had denied the same unlawfully, therefore, the petitioner had rendered himself liable to ejectment forthwith. Accordingly the ejectment order, in question, was passed against the petitioner on 5-5-1991. Not contended with the said order of ejectment, the petitioner filed an appeal before the District Judge but .The same was turned down/rejected on 4-7-1991.
5. The petitioner has thus impeached the validity of both the orders through this writ petition. We have heard Syed Zafar Abbas Zaidi, Advocate learned counsel for the petitioner and Mr. Muhammad Saleem Khan Gandapur, Advocate, learned counsel for respondent No.3 and have also perused the record of the case carefully with their assistance.
6. At the very outset an objection has been raised by the respondent's counsel that a finding of fact recorded by a tribunal or an authority, having exclusive jurisdiction, cannot be interfered with simply because another view can be taken on the basis of the evidence available on record. In other words, he contended that this fact alone cannot, per se, furnish ground to the High Court to interfere with the orders of the Tribunal/authority, in the exercise of its writ jurisdiction. According to him the Constitutional jurisdiction is not only discretionary but is also very limited/circumscribed in nature. He further submitted that, in the circumstances, this writ petition cannot be accepted and is liable to be dismissed as it cannot be held that the impugned order is illegal or without lawful authority.
7. On the other hand it is contended that both the forums below have acted with material irregularity and have grossly erred in disregarding/discarding the material evidence produced in the shape of the testimony of various witnesses examined in the case. In this respect certain items of evidence, oral as well as documentary, were pointed out/highlighted and it was stated that the same has resulted in the misreading/non-reading of evidence.
8. We are surprised as to how such evidence was taken into consideration by the forum below. In this situation we cannot ignore the well---settled rule/principle of law that as and when the authority or tribunal entrusted with judicial task, passes an order by ignoring or in ignorance of the material on record or by misreading/non-reading the same, then in that case, such an order is liable to be struck down by the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 by undertaking an exercise of re-appraisal of the evidence available on record.
9. After a critical examination of the evidence on record the position that emerges is that both the forums below have not only misconstrued the documentary evidence but have, at the same time, discarded the oral testimony produced in respect of the said documents by laboured reasoning.
This, indeed, is not permissible by any rule relating to the appreciation of evidence in a case like the one in hand.
10. To start with we have come across an important fact that respondent No.3 (A.W.3) has singularly failed to mention, in his application, about any rent deed or any other document creating the relationship of landlord and a tenant between the parties. No reference has been made to any receipt evidencing payment of rent to him in respect of the shop in question.
Neverthe--less a document dated 2-2-1981 has been filed with the application. This has been scribed by Muhammad Ramzan Petition-writer (A.W.2) and attested by two witnesses namely Karim Bakhsh (R.W.2) and Hamidullah (C.W.1). The Petition-writer (A.W.2), on his own showing, has not written this document in Court premises but had scribed the same in his shop. The rent mentioned in this document is Rs.200 per month. This has, therefore, contradicted the very contention of respondent No.3 (A.W.3) who claimed that the rent was fixed @ Rs.300 per month.
Karim Bukhsh (R.W.2) has denied that this document was thumb-impressed by him. Likewise Hamidullah (C.W.1) has introduced a new story by saying that neither the petitioner nor Karim Bukhsh (R.W.2) was present at the time when this deed was executed. The combined effect of the testimony of Karim Bukhsh (R.W.2) and that of Hamidullah (C.W.1) has demolished the assertion of the petition-writer (A.W.2) that the deed was scribed/executed at the instance of the petitioner and was thumb-impressed by Karim Bukhsh (R.W.2) at the time of its execution. No doubt Hamidullah (C.W.1) has admitted his, signature on the deed and has obliged/favoured respondent No.3 but by doing so has exposed the fraudulent nature of the deed. This fact has destroyed the evidentiary value of the deed altogether.
11. To offset the evidence of Karim Bukhsh (R.W.2) and Hamidullah (C.W.1), respondent No.3, moved the Rent Controller to obtain the specimen thumb-impression of Karim Bukhsh (R.W.2) and to send the same to the Handwriting Expert for comparison with the thumb-impression affixed/appearing on the deed. The opinion of the Handwriting Expert, Mr. A. G. Pasha, examiner of the questioned documents, establishes, beyond doubt, that the thumb-impression on the deed differs from the specimen thumb impression of Karim Bukhsh (R.W.2). In the same way the comparison of the signature on the deed in question and the specimen signature of the petitioner reveal variations.
This opinion, which was elicited at the instance of respondent No.3 (A.W.3), supports the contention of the petitioner that neither the executant nor one of the attesting witnesses was present at the time when the disputed deed was allegedly executed. The Petition-writer, in our opinion, has acted fraudulently at the behest of respondent No.3 (A.W.3) and has forged the alleged rent deed.
12. Yet respondent No.3, is not ready to accept the findings/opinion of the expert and has asked/requested the Rent Controller for a second examination by another expert. His request was, however, turned down and, in our view, rightly so.
13. We may point out here that even if we do not take notice of the Hand--writing Expert's opinion, we have no reason, whatsoever, to discard the testimony of Karim Bukhsh (R.W.2) and that of Hamidullah (C.W.1). The testimony of these two witnesses whether taken individually or collectively shatters the credibility of respondent No.3 (A.W.3) and exposes the fact that the rent deed is fictitious/bogus and therefore cannot be relied upon. In short we hold that the rent deed relied upon by the lower forums is an offspring of forgery, pure and simple, and it could not be relied upon in the presence of the oral evidence of the two abovementioned witnesses. If this deed is discarded, as' it should be, for the reasons elaborated above, respondent No.3 (A.W.3) is left with no other tangible evidence except his own solitary statement which is nothing else but an hollow egg- shell to show.
14. Both the lower forums have wrongly taken into consideration a document which, on the face of it, is fictitious/fabricated, for creating tenancy between the petitioner and respondent No.3, whose version has been totally shattered by other evidence available on record and the same cannot be ignored in any way. It is a glaring case of perversion of patent facts, non---reading/misreading of evidence and this fact, in our considered opinion, requires our interference with the decision recorded by the lower forums.
15. We accordingly accept this writ petition, set aside the impugned judgments of Rent Controller (Mr. Muhammad Jamshed Khan) and District Judge (Mr. Abdus Sattar Khan) and order respondent No.3 to restore the possession of the disputed shop to the petitioner forthwith.