' Applicant Syed Aziz Hussain has called in question the judgment dated 30-8-1999 and decree, dated 10-9-1999 passed by 1st Additional District Judge, Karachi (East), whereby the judgment and decree, dated 17-5-1999 dismissing Civil Suit No,903 of 1989, filed by the respondent Majeed Khan against the applicant were set aside.
2. Background of the case is that respondent Majeed Khan Lodhi filed the abovementioned suit claiming that the applicant/defendant was his tenant in respect of Shop No,11 Star Arcade Plot No,S.B., 7 Block-I, Gulshan-e-Iqbal Karachi at the monthly rent of Rs,1,300. The applicant/defendant failed to pay rent for 16 months and also the bills of electricity, consequently, a total amount of Rs,375, 13 i,e, rent for 16 months and Rs,16,713 as electric charges, fell due against him. The applicant/defendant had, however, filed Suit No,658 of 1999 in the Court of XIIth Civil Judge, Karachi
(East) for Injunction which was disposed of on 3-8-1998 and on the same day the applicant handed over the vacant possession of the shop to the respondent/plaintiff. Summons of the instant suit were served on the applicant/defendant and his Advocate Mr. Muhammad Amin Motiwala filed Vakalatnama but no writer statement was filed and none attended the Court. The suit was, therefore, directed to proceed ex parte. The respondent/plaintiff filed his affidavit in ex pane proof but the learned Civil Judge dismissed the suit on the ground that the respondent/plaintiff failed to file any documentary evidence to establish the rental dues.
3. The respondent/plaintiff preferred an appeal against the above judgment and decree. In appeal, the view taken by 1st Appellate Court was that the electricity charges were proved through the electricity bills and the rental dues were etablished through ex pane affidavit which had gone un rebutted. The appeal was consequently allowed.
4. Learned counsel for applicant at the outset took a technical objection that no exhibit mark has been assigned to the affidavit in ex pane proof, it cannot. Therefore, be taken as a piece of evidence unless the deponent is put in witness-box. He further contended that the plaint even if varified on oath was no substitute for evidence. He sought assistance from the cases: Mst. Kaniz Fatima v. Ghulam Mustafa (1994 M LD 174) and Zafar Mirza v. Mst. Naushina Amir Ali (PLD 1993 Kar.
775). In support of his contentions. Learned counsel for respondent controverted the above contentions and submitted that in Appellate Court the applicant did not challenge the proceedings of trial Court and such stand cannot be taken now. However, he explained that the applicant did not appear in the trial Court and no plea was raised for cross-examination of the deponent who filed the affidavit in ex parte proof, consequently the technical objection relating to the lack of exhibit mark on affidavit was without force.
5. The case-law cited by learned counsel for applicant, (1994 M LD 174) is on different footing as the facts and circumstances of the case are distinctly different. In the cited case the Advocate was pinned down by the trial Judge to cross-examine the witness produced by the opposite party and his counsel showing his inability had left. He was replaced by another Advocate also expressed his inability to immediately embark upon cross-examination of the witness on that very day and as such all the witnesses remained without cross-examination; consequently, in revision the High Court took the view that the party was deprived of his valuable rights. The position in this case is altogether different as after filing of vakalatnama the applicant and his Advocate both. Remained absent; thus, there was absolutely no contest on their behalf. The principle in the reported case is of no assistance to applicant. His conduct plainly demonstrated his option to participate in further proceedings, the Appellate Court was therefore, justified in observing that the affidavit filed in ex parte proof had gone un rebutted.
6. Learned counsel further referred to PLD 1993 Kar. 775 (Zafar Mirza v. Mst. Naushina Amir Ali) to argue that an affidavit would have no legal value, if deponent fails to make himself available for cross-examination. This authority is not helpful to the case of applicant; firstly, on the ground that it was a rent case and the deponent after filing the affidavit was required under the law to be cross- examined and secondly, it was for the deponent to be available but he kept off as such there was default on his part. In the present case the defendant/applicant himself was absent and opted to remain absent, for saking his right of cross-examination. He cannot now raise an objection that the deponent was not cross-examined.
7. Next, the technicality of not putting exhibit marks on the affidavit filed in ex parte proof is essentially a procedural drawback and shall not affect the merits of the Case when it has been admitted as a piece of evidence by trial Court. This objection is based, primarily, on the provision of Order XIII, rule 4, C.P.C. Which lays down that there shall be endorsed on every document which has been admitted in evidence in the suit, the following particulars namely:---
(a) the number and title of the suit,
(b) the name of the person producing the document,
(c) the date on which it was produced, and
(d) a statement of its having been so admitted; and the endorsement shall be signed or initialled by the Judge.
8. Perusal of R&Ps would indicate that the affidavit was presented on 14-5-1999 and there is initial on the top of it acknowledging this fact. The case diary dated 14-5-1999 signed by the learned Judge shows that ex parte proof affidavit was duly filed and then arguments were heard. The R&Ps shows that four documents were appended to this affidavit mention whereof was pointedly made in paragraphs 1, 5 and 6 of the affidavit and these documents were duly marked Exhs.
Nos.P.1, P.2, P.3 and P.4 bearing the initial of the learned Judge. In this manner, the significant formalities were completed in respect of those documents but perhaps, inadvertently, the exhibit marks could not be noted on the top of the affidavit itself. This omission being a slight error on the part of the Court or in other words being an act of the Court shall not lead to an adverse inference affecting the rights of the party who solemnly discharged his burden in producing the document/affidavit. It may be noted that this document/affidavit itself is the subject-matter of the entire judgment of the Civil Judge which fully demonstrates that it was placed on record and being the most eminent piece of evidence its contents were considered and only then findings were rendered by the trial Court.
9. On legal plane, the trial Court was not precluded from looking irtto and relying upon such document even if the exhibit mark was not duly noted. This legal proposition has received attention of Superior Courts in many cases. To cite an instance, it may be mentioned that after examining a number of authorities including; Sadik Hussain Khan v. Hashim Ali Khan (AIR 1916 PC 27), Sultan Ahmed Chowdhry v. Mustafizur Rahman Chowdhry (PLD 1967 Dacca 216) and Nathe Khan v. Mst.
Rahmat Bibi (PLD 1961 BJ 96) the Peshawar High Court took the view in Muhammad Yousaf Khan Khattak v. S.M. Ayub (PLD 1972 Peshawar 175) that for any omission in observing the formalities contained. In Order XIII, rule 4, C.P.C. Party shall not be penalized or made to suffer for the act of Court and that such objection could not be raised at the appellate stage. This point again came under examination, and the view taken by the Peshawar High Court was affirmed in Hakim Khan's case (PLD 1975 Lahore 1170). It would be relevant to add here that the applicant had filed written argument while contesting the appeal in the First Appellate Court, but he did not raise this kind of objection at the time which was the earliest stage. He cannot take this objection at the Revisional Stage. To sum up, in view of the circumstances already stated and the observations made in the foregoing case-law the objection raised by the applicant at this stage is not tenable and as such repelled.
10. Learned Appellate Court has taken into consideration the documents annexed with the aforesaid affidavit which include; the 'electricity bill' issued on 20-7-1998 showing dues of Rs,I5,379.07; the 'statement', made in the Suit No,658 of 1998 on the basis of which the said suit was disposed of; the 'order' dated 3-8-1998 dismissing the suit in terms of aforementioned statement; and the 'acknowledgement of the delivery of possession' of the said shop. Learned Appellate Court has rightly observed that the electric bill produced in the trial Court was sufficient to establish the electricity charges and further the unrebutted version in the affidavit was adequate to prove the rental dues when the tenancy was not challenged *at all, and even possession was delivered during subsequent order passed in another suit and was duly acknowledged. These findings of the Appellate Court are based on sound reasoning and proper appreciation of the evidence on record and have in substance, furthered the ends of justice; they do not call for interference in the exercise of revisional jurisdiction.
11. The Revision Application is accordingly dismissed with costs.