' This revision petition under section 115, C.P.C. Is directed against the judgment and decree, dated 6-12-1999 of Additional District Judge, Rawalpindi, Camp at Murree, whereby the petitioners' appeal against the judgment and decree, dated 28-4-1999 of Civil Judge, Murree decreeing the respondent's suit, has been dismissed.
2. The relevant facts are that the respondent-plaintiff filed a suit against the petitioners- defendants for possession and for recovery of rent. The plaintiff alleged that he was owner in possession of land measuring 6 Kanals, detailed in the plaint, situated in village Sorasi, Tehsil Murree and have constructed six shops over it, one of the shops was is possession of the defendants as tenants from the year 1982, that in the year 1994 he constructed another Pacca shop and gave the same also on rent to the defendants and the total rent of both the shops was Rs,9,000 per annum, being Rs,4,000 per annum for one shop and Rs,5,000 per annum for the other shop and the rent was to be paid yearly and at the time of taking of the possession of the shops the defendants paid an earnest money of rent of Rs,3,000 to the plaintiff with a promise to pay the balance rent soon thereafter but did not pay any rent, thus, the rent amounting to Rs,24,000 (from 1994 to 1997) after deducting the amount of Rs,3,000 was payable by the defendants. It was alleged that the defendants were liable to be ejected, on the ground of default and the plaintiff needed the shop for his personal need. The decree for the recovery of arrears of rent of Rs,24,000 was also prayed for. The suit was resisted by the defendants/petitioners. It was maintained by them that the rate of rent was not settled between the parties, that the plaintiff used to purchase the different articles from the defendants' shop on credit and also obtained cash loan and the total amount payable by the plaintiff to defendants till June, 1997 was Rs,24;051 and when defendants asked the plaintiff that after deducting the market rate of rent of Rs,2,000 per annum, the balance amount be paid to the defendants, the plaintiff instituted the present suit to counter the defendants' claim. The trial Court framed the following issues:-- "(1) Whether the plaintiffs are owners of suit property? OPP
(2) Whether the plaintiff is entitled to the decree as prayed for? OPP.
(3) Whether the defendants have not paid the rent of shops/property in dispute if so how much and if the plaintiff is entitled to the grant of the amount? OPP.
(4) Whether the plaintiff approached the Court with unclean hands? OPD
(5) Whether the plaintiff has no cause of action and locus standi? OPD.
(6) Whether the suit is not maintainable in its present form? OPD.
(7) Whether the suit is incorrectly valued if so what is the correct valuation? OPD.
(8) Relief."
3. The parties produced their evidence and after hearing the parties, the learned trial Court decided Issues Nos.1 to 3 in favour of the plaintiff while Issues Nos.4 to 7 were decided against, the defendants and resultantly a decree for possession as well as the recovery of Rs,24,000 was passed in favour of the plaintiff, against the defendants-petitioners. The petitioners' appeal against the same, as mentioned above, has been dismissed by the Additional District Judge, Rawalpindi, Camp at Murree, on 6-12-1999. Hence this revision petition.
4. I have heard the learned counsel for the parties and have also seen the record, copy of which is attached with the petition.
5. It is contended by the learned counsel for the petitioners that the suit was not maintainable because no notice under section 106 of the Transfer of Property Act was given, that the petitioners gave an application for the production of additional evidence before the Appellate Court but the Appellate Court illegally refused the same, resulting into miscarriage of justice because through the application, the petitioners wanted to bring on record an agreement, dated 21-2-1999 entered into between the parties showing that the present suit was false and frivolous. It has also been argued that the judgments of the Courts below suffer from misreading and non-reading of evidence.
6. On the other hand, while vehemently opposing the petition, it is contended by the learned counsel for the respondent that the objection regarding non-service of notice under section 106 of the Transfer of Property Act and non-maintainability of the suit on this score was not taken by the petitioners in their written statement and the same plea cannot be permitted to be taken now for the first time at the revisional stage because non-service of such a notice is a question of fact requiring inquiry through recording of evidence. It is also submitted that the petitioners have not paid any rent from 1994 to 1997 and have admittedly not paid any rent from 1997 onward after the institution of the present suit and their default is thus, clearly established and they are not the persons with clean hands. In the end, it is submitted that the respondent-defendant denied the purchase of any articles from the petitioners' shop on credit and the taking of any loan from them and even if it is so, for the sake of argument (without conceding), the same cannot be adjusted by the tenants in lieu of the rent payable by them to the landlord without the consent of the landlord and in the absence of any agreement of the adjustment of such a loan advanced by the tenants to the landlord and the tenants remain defaulters making them liable to be evicted and they remain at liberty to avail the civil remedy of recovery suit against the landlord for the recovery of the alleged loan advanced by them to the landlord.
7. Learned Appellate Court has exhaustively dealt with the petitioners' application for additional evidence and has advanced cogent reasons for dismissing the same. I agree with the finding of the learned Appellate Court. The petitioners' applications seeking permission of production of additional evidence had no merit and it was correctly dismissed. The petitioners through the said application wanted to produce five books to show that the plaintiff had been purchasing some articles on credit from the shops being run by the petitioners. The Appellate Court has correctly held that even if this fact is taken as true even then the appellants (now petitioners) had the right to file the suit for the recovery of money against the plaintiff because it A is not the case of the petitioners that there was an agreement between the parties that the said amount would be adjusted towards the payment of rent. Learned Appellate Court has correctly taken note of the fact that the said books of accounts were throughout in possession of the petitioners but they failed to produce the same in evidence at trial stage and it is also an admitted position that the said books of accounts do not bear any signatures of plaintiff and, therefore, mere production of these books would not advance the cause of the petitioners. The petitioners also sought permission to produce by way of additional evidence, through the same application, a deed of compromise, dated 2-2- 1999. Like the books of accounts, the said deed of alleged agreement is also denied by the plaintiff and the petitioner-defendants made no efforts to produce the said documents in evidence during the pendency of the trial. Even otherwise, this document does not show that the amount referred to in it was rate of rent between the parties. The Courts below have arrived at the correct conclusion on the basis of facts found and established through evidence. The evidence produced by the parties has been discussed in the impugned judgments. The plaintiff has appeared as P.W.1 and has given the details of rates of rent, denied the obtaining of any articles on credit from defendants and has categorically stated in his cross-examination that other shops with other persons were on rent at the rate of Rs,400 per month. The statement of P.W.2 is also to the similar effect. He has also stated that the agreement Exh.P.1 was reduced in writing between the parties. On the other hand, the statements of R.W.1 and R.W.2 are the variance with each other in regard to the rate of rent and are not creditworthy. Even otherwise, it does not appeal to reason that a landlord will give two shops on rent to a tenant without setting the rate of rent with them.
8. The issuance of notice under section 106 of the Transfer of Property Act prior to the institution of such a suit is not mandatory and a suit would not become non-maintainable in the absence of such a notice because the institution of the suit would constitute a sufficient notice to the tenant for the vacation of such premises. It is so held because section 106 of Transfer of Property Act, 1882 has not been extended to Province of Punjab and the filing of suit by the landlord satisfied requirements of the principle involved in section 106 of Transfer of Property Act, 1882 especially when the tenant's ejectment is ordered after 20 months of the institution of the suit. It may be noted that under section 106 of Transfer of Property Act, a notice of 15 days is required. It may be added here that Transfer of Property Act is not in force in Province of Punjab but its provisions as to matters of principles are followed as rules of justice, equity and good conscience but this does not apply to provisions which embody technical rules. Reference can be made to Teja Singh v. Firm Kalyan Das Chet Ram and another (AIR 1925 Lah. 575). The rule embodied in section 106 is a technical rule not applicable as a rule of justice, equity and good conscience. Reference in this regard can be made to Mehra (CL) & Sons v. Kharak Singh (1968) 70 PLR 55. Even otherwise, the petitioners cannot be permitted to raise this plea for the first time before this Court in their revision petition under section 115, C.P.C. Because the question about non-service of notice under section 106 of the Transfer of Property Act is not a question of law, it is basically a question of fact which has to be asserted and thereafter legal consequences naturally flow therefrom. In (Muhammad Yousaf v. Mian Faiz Muhammad NLR 1981 Civil 45 (Lahore)), it was held that it was incumbent upon the petitioner (defendant) who alleged non-service of notice at appellate stage to have specifically alleged non-service in his written statement before the trial Court.
9. No other point was urged before this Court.
10. In view of the above mentioned, I see no merits in this petition which is accordingly dismissed with costs throughout.