' This judgment shall decide Civil Revision No,353 of 2000 and Writ Petition No,599 of 2000 as they proceed against a common judgment of learned District Judge, Jhelum.
2. On 22-1-1992 the respondent Sharif Ahmad filed an application for ejectment of Mirza Asadullah Khan, the predecessor-in-interest of the petitioners (hereinafter to be referred to as the petitioner).
In the application it was stated that the petitioners are tenants under the respondent in the suit house subject to payment of Rs,500 per month as rent; that rent at the said rate has not been paid since October, 1984 on various pretexts; that the house is required by the respondent for his personal use. In the written reply filed by the petitioners on 29-4-1992 it. Was stated that in February, 1984 the respondent entered into an agreement for the sale of the house for a consideration of Rs,2,00,000; that a sum of Rs,30,000 was paid by way of earnest money and it was agreed by the respondent that he will execute the sale-deed and get the same registered in August, 1992 in favour of the petitioners and till August, 1992 the house shall remain in the use of the petitioners but his status would not be that of a tenant and similarly the respondent will have no authority to claim the rent.
3. On 2-1-1993 the petitioners filed a suit against the respondent stating the said facts as were stated in the said written reply and seeking a decree for specific performance of the said agreement, dated 8-2-1984. The respondent in his written statement denied the execution of the agreement and stated that the plea has been coined and the suit has been filed to defeat the ejectment proceedings.
4. On 27-6-1993 the said two proceedings were consolidated and issues were framed by the learned trial Court. Evidence of the parties was recorded. The suit for specific performance of the agreement was dismissed while the ejectment application was allowed vide consolidated judgment, dated 8-6-1999 and a decree was also prepared in the suit for specific performance.
The petitioners filed two appeals against the said consolidated judgment and decree. Both the appeals were taken up and heard together by the learned District Judge, Jhelum, who proceeded to dismiss both the appeals on 4-3-2000.
5. Learned counsel for the petitioners argues that the ejectment petition on the one hand and the civil suit on the other could not have been consolidated and as such the impugned judgment and decree suffered from an error of jurisdiction. Relies on the case of Manzoor Ahmad v. Messrs Facto (Pakistan) Ltd. And others 1996 MLD 265. Further contends that the learned trial Court has acted without lawful authority in refusing the application of the petitioners for comparison of the signatures of the respondent on the disputed agreement with his admitted signatures. Learned counsel for the respondent, on the other hand, draws my attention to Writ Petition No,1261 of 1995 that was filed by petitioners themselves to challenge an order passed by the learned trial Court closing their evidence in the consolidated proceedings, to assert that at no stage the petitioners claim any prejudice because of the consolidation or raised any objection thereto. Learned counsel further submits that it is the stated case of the petitioner that the consolidation was resorted to with their consent. He relies on the case of Dr. Arslan Razzaq v. Ali Hussain PLD 1993 Lah.
97. Replying the said second contention of the learned counsel for the petitioners urges that sufficient evidence was available on record to decide the question of execution of the agreement and as such there was no need for comparison of signatures by an expert.
6. I have gone through the records, copies whereof are appended with the civil revision as well as the said writ petition, with the assistance of the learned counsel for the parties. As to the said first contention of the learned counsel for the petitioners I find that the predecessor-in-interest of the petitioners, namely, Mirza Asadullah Khan himself filed an application praying that the ejectment application and the civil suit be consolidated and the respondent stated that he had no objection.
This is vide order, dated 27-6-1993. The learned trial Court proceeded to consolidate the two proceedings and directed that the proceedings will be held in the ejectment application filed by the respondent. He framed consolidated issues on the same date. He then recorded evidence of the respondent and started adjourning the case on the request of petitioners for their evidence.
Vide order, dated 6-3-1995 he closed the evidence of the petitioners. Writ Petition No,1261 of 1995 was filed by the petitioners in this Court. No objection whatsoever to the consolidation was raised rather in para. 5 of the writ petition it was asserted that since the main question involved in both the matters was the execution Qf the said sale agreement and termination of tenancy, the two matters were consolidated on 27-6-1993 with the consent of the parties. The writ petition was allowed on 8-3-1999 and the case was remanded back to the learned trial Court for giving an opportunity to the petitioners to produce their witnesses. Thereafter, the evidence of the petitioners was recorded and the matter was decided vide consolidated judgment and decree, dated 8-6- 1999. Two first appeals were filed before tl e learned District Judge, Jhelum. These appeals were filed on20-7-1999. Not a single word was stated either in the memos. Of the first appeals or during the course of hearing of the first appeals that the consolidation was not valid or that the petitioners have suffered any prejudice on account of the said consolidation and the proceedings following the same.
7. It Is in the aforestated factual background that to my mind the said objection of the learned counsel for the petitioners needs to be considered. I may further state here that whereas the said case of Dr. Arslan Razzaq PLD 1993 Lah. 97 fully supports the contentions of the learned counsel for the respondent as a learned Single Judge of this Court held that the consolidation of a specific performance suit and ejectment petition would not only be valid but would be in fairness to both the parties. On the other hand, the said case of Manzoor Ahmad 1996 MLD 265 relied upon by the learned counsel for the petitioners does go to support his contention inasmuch as another learned Single Judge of this Court while taking note of the judgment in the said case of Dr. Arslan Razzaq proceeded to hold that such consolidation would be without jurisdiction. The opinion of the learned Judge in the case of Dr. Arslan Razzaq was not agreed to in the said latter judgment for the reason that whereas the Rent Controller is persona designata and may not be in a position to exercise the powers vesting in a Civil Court under C. P . C .
8. Having examined both the said judgments I deem it necessary to refer here to the contentions that were raised and noted by the learned Judge deciding the said case of Manzoor Ahmad. Inter alia, it was urged before his Lordship that the application for consolidation was filed after five years of the institution of the two proceedings when partial evidence had been recorded in the civil suit and evidence of the petitioners before his Lordship had been concluded. It was specifically asserted that the petitioner before his Lordship would be seriously prejudiced because of the said consolidation at the said stage. The judgment in the case of Dr. Arslan Razzaq was sought to be distinguished before his Lordship by asserting that in the said case the application for consolidation was filed by the tenant while in the case before his Lordship the application was filed by the subtleties.
9. It will thus be seen that prejudice was claimed because of the proposed act of consolidation ordered by the trial Court in the said case of Manzoor Ahmad.
10. I may also here refer to the reasoning recorded by the learned Judge in the case of Dr. Arslan Razzaq. These are contained in para. 10 of the judgment of Dr. Arslan Razzaq PLD 1993 Lah.
97. The same are reproduced here for facility of reference:-- "10. It seems to me that procedure adopted by the learned Senior Civil Judge in consolidating the two matters would ensure fairness to both the parties. The eviction application was made earlier in point of time. The respondent denies the execution of the agreement of sale in favour of the petitioner and the agreement is, according to him, a forged document. To stay the proceedings in the eviction application and to decide the suit for specific performance first would most probably result in extraordinary delay in the decision of the eviction application. Civil suits are known to take very long to decide and if the Court finds that the agreement, upon which the petitioner claim to specific performance is founded, is a forged document, the staying of the proceedings in the eviction application would amount to allowing the petitioner to take advantage of his own wrong.
The consolidation of the two matters and their decision by a consolidated judgment would, therefore, be fair to both the parties." 9.
11. I find that the said reasonings given by his Lordship in the said case of Dr. Arslan Razzaq do find support from the observations made by the Supreme Court of Pakistan in the case of Haji Jumma Khan v. Haji Zarin Khan PLD 1999 SC 1101. In fact the said judgment of the apex . Court reaffirms the view already expressed in the case of Mst. Bor Bibi and others v. Abdul Qadir and others 1996 SCMR 877 and Iqbal and 6 others v. Mst. Rabia Bibi and another PLD 1991 SC 242. The ratio of the said judgments of the Supreme Court of Pakistan are to the effect that atenant is not to be allowed the luxury of fighting out the case of specific performance with his landlord while remaining in possession of the premises notwithstanding the fact that he is not complying with the terms of the tenancy or that the landlord becomes entitled to the possession of the premises on grounds stated in law. In the present case, in fact the tenant i,e, the petitioners had been afforded the said luxury.
The matters were consolidated on his own express request contained in an application and the proceedings were conducted accordingly. No prejudice has been claimed because of the consolidation at any stage. I, therefore, respectfully following the said view of the Supreme Court of Pakistan which ultimately goes to support the view expressed by this Court in the case of said Dr. Arslan Razzaq, am not inclined at all to interfere with the impugned judgment by upholding the said objection of the learned counsel for the petitioners.
12. Coming to the said second contention of the learned counsel I find that the learned counsel for the petitioners has not expressed any cavil with the findings of fact recorded by the learned Courts below that the execution of the documents has not been proved and on the other hand the circumstances on record go to show that the document is fabricated and forged. The basis for forming the said view is a statement got recorded by the said Asadullah Khan, copy whereof is on the file as Exh.A.3. This statement was made by the deceased on 20-7-1986. In the said statement made before the learned Senior Civil Judge, Jhelum pursuant to a complaint made by the respondent for non-payment of rent against Mirza Asadullah Khan, the latter made an undertaking that he shall pay Rs,9,000 to the respondent on account of rent due for the house for the period from 30-6-1986 to 30-10-1986 in three equal instalments. Unfortunately Asadullah Khan died before he entered the witness-box but his son Sajjad Haider appearing as P.W.8 was confronted with the said statement (Exh.A.3) and he admitted that the statement bears the signatures of his father and that it was correct that the statement was with reference to the non-payment of rent. Now the agreement is alleged to have been executed on 8-2-1984 contending inter alia that Asadullah Khan would be absolved from payment of rent. The inconsistency between the two documents can lead to the conclusion as formed by the learned Courts below and it cannot be said that they have acted with material irregularity in the exercise of their jurisdiction or that they have acted without lawful authority while passing the impugned judgment and decree after reading the entire evidence on record.
' I may state here further upon insistence of the learned counsel . That the admitted signatures of the respondent are there on the ejectment petition, copy whereof is available at pages 44 and 45 of the file of Writ Petition 599 of 2000. I examined the signatures on the agreement (page 49 of the file) that is available at page 45 of the file with the assistance of the learned counsel. The difference between the two signatures is so glaring and evident to a naked eye that one need not to be an expert to state that at least the said two signatures on the ejectment petition (page 45 and the agreement page 49) have not been made by the same person. No other point has been urged. The civil revision as well as the writ petition are dismissed with costs.