' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 calls in question the order dated 12-3-1997 passed by the learned Additional District Judge, Lahore, whereby the appeal of the petitioner was dismissed and the order dated 27-11-1994 passed by the learned Rent Controller, Lahore was affirmed resultantly, the petitioner was ordered to be evicted from House No, 28, Ali Block, Garden Town, Lahore.
2. The relevant facts are that the respondent No,3 claiming himself to be the landlord of Property No,28, Ali Block, Garden Town, Lahore filed an ejectment application against the petitioner from the said house on the ground of personal need, default in payment of rent since 1987 @ Rs,1500 per month and that the petitioner has committed such acts which have impaired the value and utility of the said house.
' The above said ejectment application was resisted by the petitioner inter alia on the ground that there is no relationship of landlord and tenant between the parties and that the alleged rent deed relied by respondent No,3 is forged and fabricated document. It was also alleged that the respondent No,3 has no cause of action and locus standi to file the present petition. As far the merits, it was asserted that respondent is not a tenant of the property in dispute and that she is occupying the same as owner. It was further asserted that petitioner is wife of respondent No,3 and as such living in the said house alongwith her minor daughter. The plea of rent deed being forged and fabricated was reiterated and the rate of rent was also denied. Since the very relationship of landlord and tenant between the parties was denied, therefore, the grounds of ejectment were also denied. The controversy between the parties was reflected in the following issues:--
(1) Whether the relationship of landlord and tenant exists between the parties? OPA.
(2) Relief.
' It appears that subsequently, the matter was taken to this Court in W.P. No, 7143 of 1993 wherein vide order dated 20-11,1993 another issue was added which is to the following effect:-- (1-A) Whether the rent deed and receipt both dated 1-7-1987 are forged, fabricated and in- operative documents? OPR ' The ejectment application was actively contested between the parties where the respondent No,3 being the landlord produced as many as 4 witnesses and appeared himself as A.W.S. While the petitioner adduced 9 witnesses and appeared herself as R..W.1. The documentary evidence produced by the landlord consisted of Exh.A-1 to Exh.A-21 while the documentary evidence produced by the petitioner consisted of Exhs.R-1 to R-94 and RW-1/1, RW-7/5, RW 7/5-A to RW-7/5 and RW-8/1. The two Courts below having appraised the evidence on the record as also discussed the same came to the conclusion that there does exist relationship of landlord and tenant between the parties and in reaching the conclusion noted above, the two Courts below benefitted themselves from the rent note Exh. A-1 and report Exh. A-2. As far the plea that the parties are husband and wife, it was held by the lower Appellate Court that rent controller is not competent to decide such a question or give declaration in regard thereto.. It was in the passing that the lower 'Appellate Court referred to the earlier litigation between the parties and since the finding on the issue as to relationship of landlord and tenant was held to be in-affirmative, therefore, it was not deemed proper to strike the issues on the merits so as to decide question of personal use and damage to the property. The above said findings have been assailed in the present writ petition.
4. It would be noted that denial of tenancy by the petitioner was coupled with the positive assertion that petitioner is owner in possession of the house in dispute and is living therein as wife of respondent No,3 arongwith minor daughter born from the said wedlock. The bald assertion that the petitioner is owner in possession of the house in dispute was not explained in the written statement itself for if was not pleaded as to how she came to be the owner of the said house. The denial was proved to be mere plea raised for contesting ejectment application inasmuch as the rent note, Exh.
A-1 has been proved to have been executed by the petitioner which was further strengthened by the receipt Exh. A-2. The above said documents have been proved by Khalid Latif A.W.1 and Muhammad Saddique A.W.2 who are marginal witnesses of rent note Exh. A-1. The statements of the said witnesses could not be shattered even in spite of lengthy cross-examination. The witnesses remained steady-fast to the lkale and time of execution of the rent note as also the attestation thereof by each other. Similarly, Muhammad Saeed and Khalid Hassan A.W.3 and A.W.4 respectively proved the receipt Exh. A-2. Muhammad Saeed while appearing as A.W.3 did also ratify the execution of rent note on the same day. No material evidence was produced in rebuttal to dislodge the effect of Exh. A-2, thus, the relationship of landlord and tenant between the parties stood proved on the record. As far the plea of ownership is concerned, it would be seen that the petitioner having pleaded in the written statement that she is owner in possession of the house in dispute had not produced an iota of evidence to establish the same. The respondent No,3, however, produced copy of the sale-deed Exh. A-3, dated 15-1-1987 registered on 28-1-1983 duly executed in his favour by International Industrial Co-operative Finance Corporation Limited to establish his ownership vis-a-vis the house in dispute. Exh. A-24 is no objection certificate issued by the Liquidation Board thereby ratifying that the respondent No,3 is the owner of the house in dispute. Exh. A.21, an extract of PT-I from the register for the years 1991 and 1992 is another document which goes to establish that the said respondent No,3 is the owner of the house afore- referred. The proof of the said documents on the record knocks at the very botom of the case of the petitioner who had not only contumaciously denied the relationship of landlord and tenant between the parties but also vainly asserted that she is owner in possession of the house in dispute from which she is sought to be evicted. The only other plea that she is living in the said house as a wife has obviously been negated by the rent note and the receipt which is proved to have been executed by her to show that she is not living in the house as a wife but as a tenant, therefore, reliance of learned counsel on section 265 of the Mohammedan Law D.F. Mulla is absolutely misplaced. It is axiomatic that to be entitled to various rights conferred by section 265 of the Mohammedan Law, a woman has to first prove that she is the wife. The plea that the rule of law laid down in Rahmutallah's Case (1983 SCM R 1064) is attracted in the facts and circumstances of the case inasmuch as their being a bona fide dispute between the parties regarding the status in which the petitioner occupied the house in dispute, the ejectment application ought to have been dismissed or at least stayed leaving the parties to get their respective title determined by the Civil Court. It would be noted that this is not the absolute rule and then it is not shown to be applicable in the facts and circumstances of this case firstly because the petitioner has not been able to raise a bona fide dispute as to tenancy or title to the property in dispute for it has been proved on the record by the production of rent note and receipt i,e, Exh. A-1 and Exh.A-2 and the sale-deed Exh.A- 3 that which the petitioner is occupying the said house as tenant under respondent No,3, who is the lawful owner of the property in dispute and then it is not the case of the petitioner in the written statement itself that respondent No,3 had gifted or in any other manner transferred the house in favour of the petitioner. The oblique reference to a transaction of sale in favour of respondent No,3 being "Benami" in nature has also not been established for the ingredients to prove the "Benami" nature of the transaction has not been brought or established on the record as the petitioner is not shown to have been in possession of the title deed while her possession qua the property in dispute is held to be that of tenant and above all, the source of money has not been proved to be that of the petitioner..
' On the contrary, it is petitioner's own case that the sale consideration was provided by her mother and not by her. The motive, if any, could also not be proved. Additionally, the rule of law laid down in Rehmatullah's case noted (supra) has subsequently been departed from considering the facts and circumstances of each case and depending upon the result thereof. It has been so held that where the tenancy between the parties is proved, the suit for specific performance based on the plea of part performance should hot have the effect of staying or stalling the ejectment application and the order of eviction should be passed. It has been further held that if the tenant succeeds on the basis of his plea as to title to respective in dispute, he would re-occupy the property from where he has been ordered to be ejected. Reference may be made to "Azeem-un-Nisa Begum v.
Ali Muhammad" (PLD 1990 SC 382), "Muhammad Idress v. Mst Safia Begum" (1986 SCMR 795), "Iqbal and 6 others v. Mst. Rabia Bibi and another (PLD 1991 SC 242) and Mst. Noor Bibi and pthers v. Abdul Ghaffar (1996 SCM R 877). The other plea based on the principle of administration of justice in Islam as enunciated in the cases of "Mst. Ghulam Bibi v. Sarsa Khan" (PLD 1985 SC 345), "Khurshid Ali and 6 others v. Shah Nazar" (PLD 1992 SC and "Mst. Begum and others. v. Mst. Kaniz Fatima Hayat" (1989 SCMR that the Courts are not only to sit and watch as to who commits a mistake and who does not commit a mistake from amongst the litigants, and one who commits a mistake in procedural matter should be deprived of the right claimed, even if he is entitled to it, would also not be applicable in the facts and circumstances of the present case for it is a matter of record that the second issue as to rent note and the receipt being forged and fabricated was framed in the High Court and that too at the instance of the petitioner. The very wording of the issue itself indicates that the onus to prove the said issue was on the petitioner. The petitioners having been able to strike the issue slept over the same and did not produce any evidence at the trial with the result that the findings on the said issue were returned against her. It was sheer negligence beyond any explanation, therefore, the rule of law laid down in the case of Mst. Begum noted supra, would be squarely applicable in the present case, it has been held in the said case that a party to be visited with penalty of being deprived of fair trial on merits, not by way of penalty except when there was positive evidence of negligence beyond explanation. The proceedings before the learned Rent Controller were definitely adversarial and the parties were required to prove and rebut their respective pleas. It would be too much expecting from the Court or Tribunal to find, out the evidence for the parties, get it produced, sift it and then decide the case. After all, there is some duty cast on the parties to prove their respective cases. It is true that in the administration of justice in Islamic jurisprudence, a Qazi is not to wait and see that who from the parties commits a mistake and then haul him up for the same but it is equally true that the procedure as prescribed and found on the statue book is to be followed and that Islamic principles of administration of justice could only be applied when there is a vacuum in the 'procedure. The petitioner having not cared to produce the required evidence at the relevant stage could not be allowed the luxury of producing the same at this belated stage.
' I have refrained myself to give any findings as to marriage between the parties lest it may not be opining at the legitimacy of the child. There is extensive litigation pending between the parties where the primary stage has reportedly been won by respondent No,3 while the appeals filed in the said cases are pending before the appellate forums. The said appellate forums shall decide the questions upon the facts proved before them without in any manner being influenced by the verdict rendered in the rent proceedings. For the present, it would suffice that relationship between the parties is established to be that of landlord and tenant and since according to her own showing, the petitioner neither paid nor tendered the rent to respondent No,3 on and from 1-9-1987, therefore, she has been rightly ordered to be evicted from the house in dispute, The findings recorded by the two Courts below in that behalf do not suffer from any violative infirmity nor any jurisdictional defect or misreading or non-reading of the record has been pointed out thereby calling for interference in the exercise of Constitutional jurisdiction of this Court, therefore, this writ petition is dismissed with costs. The petitioner is, however, granted two months' time to vacate the premises in dispute and hand over the same to the respondent No,3.