This second appeal is directed against the order, dated 12-3-2001 passed by the Additional District Judge. Depalpur, rejecting the appeal of appellant.
2. Brief facts of the case arc that Ghulam Nabi respondent claiming himself to be landlord of the shop in dispute tiled an ejectment petition under section 13 of the West Pakistan. Urban Rent Restriction Ordinance, 1959. Against the appellant on the grounds that he is default of the monthly rent of the suit-shop from 15-8-1994 and that an amount of Rs.66.876 for different periods is outstanding against him. Further it is stated in the petition that the appellant-respondent has damaged the shop and type the disputed shop and that the respondent-petitioner needs the disputed slip for his personal use.
3. The petition was opposed by the appellant. It was pleaded that relationship of landlord and tenant between the parties did not exist. It is further alleged by the appellant that he purchased the shop in question in the sum of Rs. 1 lac so he is owner of it. On facts the appellant controverted the petition and asserted that he purchased the shop through one Saif-ur-Rehman, Property Dealer, and Ahmad Din.
4. The Rent Controller framed the following issues:--
(1) Whether there exists relationship of landlord and tenant between the parties? OPA
(2) Relief.
5. The respondent-petitioner produced Muhammad Yousaf Bhutta son of Hakim Ghulam Yasin as A.W.1, who produced rent-deed Exh. A/l. Ghulam Nabi, owner of the shop, himself appeared as A.W.2 and produced Allah Ditta son of Sadiq as A.W.3. The respondent-petitioner also produced site plan of the market Exh.A/3 and receipt of property tax Exh.A/4. Manzoor. Ahmad, appellant-respondent appeared as R.W.I and produced Saifur Rehman as R.W.2, and closed the evidence.
6. The learned Rent Controller accepted the ejectment petition on 3-5-2000 by recording the finding, "... The respondent has failed to prove that how he got the proprietary, rights of this shop. No registered sale-deed has been executed between the parties. No mutation was entered between the parties. The respondent has himself admitted that he never filed a suit for specific performance against the petitioner. It is also admitted on record that sale price if any has not been passed on to the petitioner. So, respondent has failed to prove his ownership over the suit property..." This finding of the learned Rent Controller was affirmed by the First Appellate Court in the judgment, dated 12th March, 2001 while observing, "... Whereas the evidence of respondent side does nowhere show in any conceivable manner any oral or documentary proof of purchase of the disputed shop by Manzoor Ahmad respondent from Ghulam Nabi any way. So, that so, no instrument in writing is available with the respondent from Ghulam Nabi petitioner ...."
7. The learned counsel for the appellant argued that orders, dated 3-5-2000 and 12-3-2001 passed by the Rent Controller as well as the learned Appellate Court are illegal, unjust, arbitrary, fanciful and having been passed against the law. Further submits that both the Courts below have failed to consider the evidence on the record and have wrongly relied on the evidence produced by the respondent. According to him, the findings of bow the Courts below on issue of relationship of landlord and tenant is not established. Further adds that the document Exh.A/1 has not been proved by the respondent by producing two marginal witnesses as required under Article 79 of the Qanun-e-Shahadat Order, 1984.
8. I have given my conscious consideration to the facts and the contentions raised by the learned counsel for the appellant. The main question to be seen in this case is as to whether the plea of the appellant that he has purchased the shop in dispute is substantiated from the evidence on the record and 'whether any question of law has been misinterpreted by the Courts below. Neither any agreement of sale nor any sale-deed has been executed between the parties. It is astonishing that the respondent is claiming sale of the property by the owner in his favour on payment of Rs. 1 lac, but no receipt showing that the payment was made by the respondent to the appellant has been produced on the record. Moreover, no suit for specific performance has been filed till today. In this view of the matter, the appellant has adopted a false plea that he has purchased the property and there is no objection on behalf of the respondent on the file regarding the admissibility of document Exh.A/1 which is the rent-deed. After having found that the A relationship of landlord and.
Tenant exists between the parties and the plea of the appellant that he was not tenant of the respondent proved as false, the appellant could not have been permitted to approbate and reprobate by holding further inquiry into the matter under the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959. See Nisar Ahmad v. Nazar Muhammad PLD 1974 Lah. 489.
9. The appellant has argued that the document Exh.A/1 has not been proved by producing two marginal witnesses as required under Article 79 of the Qanun-e-Shahadat Order, 1984.1 am afraid this contention of the learned counsel is not sustainable as rte objection to this effect was taken at the time of producing the document in evidence at trial. It is well-settled law that the document shall be read in evidence once it is admitted. See Malik 8 -Din and others v. Muhammad Aslam PLD 1969 SC 136 Honourable Supreme Court held, "with regard to the first contention, it will be sufficient to state that the objection regarding the defect, if any in the method of proof of the document, cannot be raised at this stage, for the document was admitted into evidence, without any objection in the trial-Court. It is now well-settled that an objection as to formality of proof must be taken at the earliest stage and if it has not been taken, then it cannot be allowed to be taken at the appellate stage". This objection regarding the defect, if any, in the method of proof of the document has not been raised by the appellant before the First Appellate Court. A plea which was not raised or which was allowed in first appeal, cannot be allowed to be raised in second appeal.Reliance is placed on:-- Abdul Majeed and others v. Province of Punjab 1990 SCMR 846, Wali Muhammad and others v.
Ghulam Rasool 1970 SCMR 471, Government of Punjab v. Jamida Malik and others 1991 MLD 824 and Muhammad Akram v. Syed Imro A.I Shah 1988 CLC 2228.
Document admitted in evidence without objection by the other party is sufficient proof of signature and contents. See Muhammad Yousaf Khan ID Khattak v. S.M. Ayub and others PLD 1972 Pesh. 175.
10. No doubt the proceedings under the West Pakistan Urban Rent Restriction Ordinance, 1959 (Ordinance No.VI of 1959) are summary in nature. Provisions of Civil Procedure Code and the Evidence Act strict' senso are not applicable. The matter involving title is to be resolved by the Civil Court. In this case, there was no doubt in the mind of the Rent Controller that the respondent Ghulam Nabi was not owner landlord and Droceeded to decide the issue which incidentally may also have included a decision on the question of title. If the Appellate Court considered that a deeper and more detailed examination of title was necessary and title of the alleged landlord suffered from some doubt on basis of document Exh.R/1 (Register Haqdaran Zameen for the year 1994-95), he may in the circumstances have dismissed the ejectment petition leaving the appellant before him to move the Civil Court for adjudication of his title. Reliance is placed on the case entitled Rehmatullah v A.I Muhammad and another 1983 SCMR 1064 and Province of Punjab v.
Mufti Abdul Ghani PLD 1985 SC page 1. There is yet another hurdle in the way of the appellant that both the Courts below have recorded the finding of fact against the appellant. The finding of fact recorded by the Courts below on the basis of evidence on record and this finding cannot be disturbed in second appeal. See Muhammad Shoaib Alain and others v. Muhammad lqbal and others 2000 SCMR 903. In the present case neither any misreading or non-reading of evidence has been pointed out by the learned counsel for the appellant, nor there is any ground that the decision was based on misreading of evidence.
11. Since the second appeal is maintainable under section 15(6) of the Rent Restriction Ordinance on a question of law and same principle, as mentioned in section 100 of the Civil Procedure Code, is applicable in the proceedings before this Court while dealing with the second appeal against the appellate order of the Rent Controller. Section 15(6) reads as follows: Section 15(6). In the case of 'non-residential building' -- a person aggrieved by an order passed on appeal by the Appellate Authority may within 30 days from the date of the said order, prefer an appeal in writing to the High Court.
Explanation.--- An appeal under this subsection shall be heard and determined as an appeal from an appellate order under section 100 of the Code of Civil Procedure, 1908 and the provisions of Part VI of the First Schedule to the said Code relating to appeals shall, with such modification as the context may require, apply to such proceedings."
The Court cannot enlarge upon the grounds enumerated in section 100 and the appeal is liable to be rejected summarily, that is not based upon any of the grounds mentioned in section 100, C.P.C.
No case is made out for interference in the judgment of the Rent Controller and of the first appellate Court. Accordingly, this appeal is dismissed in limine