MUNIR A. SHEIKH, J.-- The facts of the case have been given in detail in the order dated 19.10.1998 passed by one of us (Munk A. Sheikh. J) in Chamber while dealing with stay application which may he read as part of this order.
2. Leave to appeal is granted to consider, inter alba: " (a) Whether the land in dispute which is admittedly an evacuee property had been transferred under the Settlement and Rehabilitation Laws to Forest Department so as to exclude the same from compensation pool, as such, was not available for allotment under the Displaced Persons (Land Settlement) Act, 1958 to the petitioner;
(h) Whether the suit tiled by the petitioner to challenge the order of the Settlement Authority made under Sections 10 and 11 of the Displaced Persons (Land Settlement) Act 1958 for cancellation of allotment of land to the predecessor-in-interest of the petitioner i.e., the original allottee/vendor in which the petitioner was not made a party though at the time of initiation of the said proceedings, the land had already been sold to the petitioner, could he held to he barred by time.
C.L.R. 1023 [Lahore] Present: Ch. Ijaz Ahmed, J INAM ELAHI Versus MUHAMMAD JAVED and 5 others S.A.O. No. 129 of 1999, decided on 11th October, 1999.
Urban Ren: Restriction Ordinance, 1959-- --S. 15, sub-section (6) of Urban Rent Restriction Ordinance, 1959--Ejectment petition tiled-- Accepted by Rent Controller--Defaulted by appellant--Two ejectment petitions tiled--Decreed-- Two appeals filed--Dismissed by ADJ--Challenge to--No objection on recording evidence was made before Rent Controller or of relationship of landlord and tenant--Held: That technicalities should not he hindrance in way of justice, S.A.O. Dismissed.
(Para 5) For the Appellant: Malik Muhammad Akram Khan Awan, Advocate. For the Resdondents: S.M. Masud, Advocate. Date of hearing: 11th October, 1999.
CH. IJAZ AHMAD, J.--- I intend to decide S.A.O. No. 129 of 1999 and S.A.O. No. 130/99 by one consolidated judgment having similar facts and law.
2. The brief facts giving rise to these appeals are that respondents.' father Abdul Majeed obtained lease of the land in-question initially fronn F.D.A. And subsequently from . M.C. Faisalabad. The predecessor-ininterest of respondents constructed the shops over the plot in-question.- The; respondents rented out the same to the appellants respectively. Initially the civil litigation started between the appellant and respondents which was finalized upto the level of learned A.D.J. And decided in favour of respondents . The predecessor-in-interest of the respondents filed ejectment petition against the appellant. The respondents tiled two ejectment petitions against the present appellant on the ground of default, personal need and repairment of shop. The present appellant tiled written statements and controverted the allegations levelled in the ejectment petition. Out of the pleadings of the parties the learned Rent Controller framed the following issues:- ISSUES:
(I) Whether the petitioner is in personal need of the rented property ? OPA.
(2) Whether the respondent is defaulter of rent for the month of February, 1990 to November, 1996 and is liable to he ejected? OPA.
(3) Whether the respondent has damaged the rented property? OPA.
(4) Whether the petitioner is lessee and is not competent to bring this application? OM.
(5) Relief/Order.
The 'ejectment petitions were accepted by the learned Rent Controller vide order dated 20.3.1998.
The appellant being aggrieved, filed appeals before the learned District Judge, Faisalabad, who entrusted the same to the,earned A.D.J. The appeals were also dismissed by two different judgments decrees dated 20.4.1999;. Hence the present appeals.
3. The learned counsel for the appellant contended that judgment of both the Courts below are the result of misreading and non-reading of the record. He further stated that evidence was recorded by the learned Rent Controller in violation of the mandatory provisions of C.P.C. i.e. Order 18, Rule 5 and Rule 8; that learned Rent Controller verbatim copied the evidence'of the parties in second case which is not in accordance with the mandatory provisions of CPC. He further stated that evidence was not recorded by the learned Rent Controller himself as is evident from the statement o AW. I in which it is clearly revealed that it was dictated by him, therefore, evidence was not recorded by learned Rent Controller and it was in fact recorded by the Reader of the Court which is not in accordance with the, aforesaid mandatory provisions of CPC. He further stated that lease of the respondents was cancelled by the Municipal Corporation and thereafter appellant deposited the rent to M.C. Faisalabad. The appellant did not commit any default qua the payment of rent but both the Courts below did not consider this aspect of the case; that the lease of the respondents was cancelled, therefore, the learned Rent Controller wrongly decided the question of personal need against the evidence on record. He summed up his arguments that the land was originally allotted to Abdul Majeed predecessor-in-interest of respondents, thereafter the same was not allotted by the M.C. Faisalabad in favour of respondents, therefore, there is no relationship of landlord and tenant between the respondents and appellants- but both the Courts below did not consider this aspect of the case.
4. Learned counsel for the respondents stated that civil litigation regarding the title of the property- in-question was decided upto the level of learned A.D.J. Faisalabad between the appellants and the respondents, therefore, appellant is estopped to agitate this plea that there is no relationship of landlord and tenant between the appellants and respondents. He further stated that title of the property was finally decided in favour of the predecessor-in-interest of respondents, thereafter the respondents filed ejectment petitions against the appellants. He further stated that evidence was dictated by the learned Rent Controller in presence of the learned counsel for the parties, therefore, learned Rent Controller did not violate mandatory provisions of CPC. He further stated that provisions of CPC are not applicable in strict() senso in the proceedings before the learned Rent Controller although principles of CPC are applicable in the rent proceedings; that appellants did not object at the time of copying of evidence of one case in the other case, therefore, appellants are estopped to raise this objection at this stage; that appellants got the possession of the shop in question from the predecessor-in-interest, therefore, appellants cannot deny the relationship of landlord and tenant as the principle laid down in the following judgments:- (1990 CLC 908); (1989 C.L.C.- 2285).
He further stated that both the Courts below have concurrently decided against the appellants and the appellants' counsel has failed to point out any piece of evidence which was misread or non-read by both the Courts below;. That this Court has very limited jurisdiction to disturb the findings of fact recorded- by both the Courts below while exercising powers u/S. 15 of West Pakistan Urban Rent Restriction Ordinance. He further stated that Municipal Corporation Faisalahad has allotted the land in question in favour of present respondents after death of the predecessor-in-interest of respondents.
5. 1 have given my anxious consideration to the contentions of learned counsel for the parties. The main contention of the learned counsel for the'appellants that the evidence recorded by the learned Rent Controller in one ejectment petition was copied/incorporated in the other petition has caused prejudice and appellants have not been given chance to cross-examine the witnesses in the second case.
It is pertinent to mention here that the learned counsel for the appellant did not point out that the learned counsel who appeared on behalf of the appellants before the learned Rent Controller have objected to the same. It is settled proposition of law that nobody is allowed to approbate and reprobate as the principle laid down by the Hon'ble Supreme Court in Ghulam Rasul's case (PLD 1971 S.C. 376). It is also settled proposition of law that provisions of CPC are not applicable in stricto senso in rent proceedings. The learned Rent Controller is well within his right to adopt any method of recording the evidence to decide the rent matters as quickly as possible. The aforesaid proposition of law was considered by the Hon'hle Supreme Court in Khadim Mohy-ud-Din's case (PLD 1965 SC 459) and observed as follows:- "If the words satisfied imports the interest of an inquiry, even then it cannot he said that in holding such inquiry he will be hound by any particular procedure."
The same proposition was also considered by the Hon'hle Supreme Court in Sh. Abdul Sattar's case (PLD 1985 SC 148) and the relevant observation is as under:- "Any attempt to import any particular procedure, such as that prescribed in the C.P.C. Or in any other law and to insists on its meticulous adherence is totally alien to the intention of this statute. In fact, the Controller in discharging many of his functions is not required to act judicially but he acts at best in a quasi -judicial capacity."
It is pertinent to mention here that Hon'hle Supreme Court has considered the case of Khadim Mohy-ud-Din and observed in Sh. Abdul Sattar's case as follows:- "The contention raised before us with regard to the order of the rent Controller being had for not recording the evidence in the present case separately is entirely misplaced."
It is also admitted fact that the appellant got the shop in question on rent from the predecessor- in-interest of respondents, therefore, appellants are estopped to agitate that the relationship of landlord and tenant did not exist as the lease in favour of the predecessor-in-interest of respondent has not renewed after the death of the original lessee on the well-known principle of estoppel and waiver. It is also admitted fact that both the Courts below have concurrently decided against the appellants. The Hon'hle Federal Court has laid down a principle in Abdul Majeed Vs. Khalid Ahmed (PLD 1959 F.C. 38) and laid down the fo11owing principle:- "I held that the High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous findings of fact, however, gross and inexcusable error may seen to he, unless there is an error in the procedure provided by law, which may possibly have produced an error or detect in the decision of the case on the merits,"
Appellants' counsel failed to point out any offer in the procedure prescribed by law under the provisions of Urban Rent Restriction Ordinance as the principle laid down by the Hon'hle Supreme Court in Khadim Mohy-udDin's case and Sh. Abdul Sattar's case supra. It is well-settled that interference in concurrent findings of fact can he made by the High Court only when the evidence is misread and findings is based on surmises and conjuncture, or based on inadmissible evidence, or there existed an error or defect in the procedure which may possibly have introduced an error or defect in the decision on merits. The learned counsel for the appellants failed to point out any piece of evidence which was misread or non-read by both the Courts below qua personal need. In the case of Ayuh Khan and another Vs. Fazal-e-Haq and others (PLD 1976 SC 422). The Hon'hle Supreme Court was pleased to hold that the Rent Controller in exercise of his discretion was entitled to follow applicable principle of CPC. The contentions raised by appellant's counsel are based on technicalities while relying on Order 18, Rules 5 and 8, CPC which also do not support the case of appellants as the principle laid down by the Hon'hle Supreme Court in Khuda Yur'.r case (PLD 1975 SC 678): that technicalities should not be hindrance in the way of justice and the relevant observation is as under:- "Mere technicalities unless over insurmountable hurdle should not he allowed to defeat the ends of justice."
The same was followed in Imtiaz Ahined's case (PLD 1963 S.C. 382). It is consistent view of the Hon'ble Supreme Court after addition of Article 2-A in the Constitution to avoid technicalities and cases must he decided on merits. I am fortified by PLD 1989 SC 532.