2017 CLC 158 Lahore
2017 C L C 158
[Lahore]
Before Shahid Karim, J
SHAUKAT ALI----Petitioner
Versus
Sheikh MUHAMMAD BASHIR through L.Rs. and another----Respondents
Writ Petition No.27630 of 2011, decided on 6th February, 2015.
Punjab Rented Premises Act (VII of 2009)---
----S. 15---Qanun-e-Shahadat (10 of 1984), Arts.114 & 117---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant---Relationship of landlord and tenant---Burden of proof---Estoppel, principle of---Applicability---Tenant, had not denied the title of the landlord in respect of premises in question, but denied the relationship of landlord and tenant between the parties and had nothing to say regarding his status as an occupant of the premises---Tenant had made no attempt to claim the ownership of the premises, nor did he allege that there was any suit pending for claiming any right to the premises in question---Bald assertion of tenant denying relationship of landlord and tenant and signatures on the tenancy agreement, would only lead to an inference that entire defence was set up in order to prolong the agony of the landlord---He who asserted must prove---Party would bear a burden of proof of every matter, which was an essential part of the party's cause of action---Generally, there were exceptions, but plaintiff or applicant must establish the existence of all the pre-conditions and other facts entitling him to the order he had sought---Once the burden had been determined, that would not shift during the course of trial---When the defence was set up by the tenant, he must also bear a burden of adducing evidence in order to bring home his good faith, and cogency of his defence---As a rule, there was an estoppel against the tenant in such matters---Underlying principle of estoppel in that a tenant who might not have got possession, but for the tenancy admitting the right of landlord, must not be permitted to put his landlord in an inequitable situation by taking undue advantage of the possession, that he got, and the probable defect in the title of his landlord---Positive obligation was on the tenant to spell out clearly the contours of his defence, the basis for it and the circumstances underlying it---Mere denial, would not do---Corresponding duty on the Rent Tribunal was to see that the denial was not based on frivolity, and was not a contraption---Denial of relationship by tenant, in the present case, was a sham and a subterfuge---To deny that fact would lead to unconscionable results, and the owner of the premises would be left into the prospect of another long-drawn litigation process in order to reclaim possession of his own property---Constitutional petition was accepted and consequently the ejectment petition also stood accepted with the result that tenant should vacate the premises within a period of two months.
Dilawar Jan v. Gul Rehman and 5 others PLD 2001 SC 149; Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa and 5 others 2001 SCMR 338; Anwar Ahmad v. Mst. Nafis Bano through Legal Heirs 2005 SCMR 152; Sqn. Ldr. (R) Umeed Ali Khan v. Dr. (Mrs.) Sultana Ibrahim and others 2007 SCMR 1692; Shajar Islam v. Muhammad Siddique and 2 others PLD 2007 SC 45; H. (Minors) (1996) A.C. 563 at 586, HL and Halsbury's Laws of India, Vol. 3, at 200.023 ref.
Sardar Muhammad Ramzan for Petitioner.
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ORDER
Rana Surbuland Khan for Respondents.
Addl. A.G.
SHAHID KARIM, J.--- The relevant facts are that the petitioner herein filed an ejectment petition on 05.09.1995 against the predecessor-in-interest of respondent No.1 (respondents Nos.i to viii) and Muhammad Munir respondent No.2.
2.The averments and the grounds in the ejectment petition were that the property bearing No.XXVI-358-137, measuring 20 Marlas situated at Ghurduar Road, Gujranwala (premises) was rented out by the petitioner to Muhammad Bashir through an agreement of tenancy for a term of three years starting from 01.06.1992 to 01.06.1995 and the rate of rent was Rs.1000/- per month. The tenancy expired in June, 1995 and a notice upon expiry was sent to the respondents to hand over the vacant possession of the premises to the petitioner, which was refused by the respondents. The petitioner sought the eviction of the respondents mainly on the grounds of willful default from June, 1995 to 31.08.1995, subletting the premises by the respondent No.1 to respondent No.2, personal bona fide need of the petitioner and lastly on the ground that the tenancy stood expired from 1st of June, 1995. The following issues were framed by the Rent Controller on 31.3.1996:
(i)Whether the relationship of landlord and tenant exist between the parties? OPA.
(ii)Whether the petitioner has got no cause of action? OPR.
(ii)Relief."
3.The parties led their evidence on the issues framed. Suffice to mention here that in order to prove that the petitioner was the owner and landlord of the premises, he produced Ex.A.4 attested copy of judgment dated 5.6.1999 regarding suit titled "Shaukat Ali v. Muhammad Munir etc.", which was a suit for declaration. Apart from this, oral evidence was also produced by the petitioner and the respondents in support of their respective cases which will be adverted to as and when required in the later part of this order.
4.A history of the litigation and the various stages it has gone through will be in order here. The ejectment petition was dismissed by the Rent Controller, Gujranwala vide judgment dated 30.05.1998 and appeal against the said judgment was accepted by the appellate court vide judgment dated 8.4.99 and a direction was given to record the remaining evidence of the petitioner and to decide the rent petition afresh. Upon remand, the Rent Controller, Gujranwala examined Abdul Aziz AW.5 and Mian Maqsood Ahmad Advocate AW.6 and after hearing the parties, accepted the ejectment petition vide judgment dated 24.4.2001. The said order was again appealed before the Addl. District Judge which was accepted and the ejectment petition was again remanded on 13.11.2001 with a direction for it to be disposed of anew. On 10.12.2001, the Rent Controller decided the ejectment petition once again in favour of the petitioner and again the order of the Rent Controller was set aside by Addl. District Judge vide judgment dated 30.06.2003. The judgment of the Addl. District Judge was challenged before this Court which was decided on 19.5.2009 and once again the matter was remanded to the Rent Controller to decide the issue No.1 in the light of the observation made by this Court. In short, this Court required the comparison of the hand-writing of the respondents on the purported agreement of tenancy Ex.A.1 with other documents. This was duly done upon remand of the proceedings and the record of the Forensic Science Laboratory was exhibited as Ex.C.1. The statement of Dr. Ameer Ali Hussain, Director Forensic Science Laboratory was also recorded as CW.1. On 07.03.2011, the
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Special Judge (Rent) passed the impugned order which was confirmed by the Addl. District Judge in appeal on 23.9.2011. Both the said orders are under challenge in this petition (impugned orders).
5.The learned counsel for the petitioner submits that the title of the petitioner to the premises is not denied by the respondents and the respondents merely deny the fact of tenancy to exist or that an agreement for tenancy was ever executed between the parties. He further submits that the judgments of the courts below are based on the comparison of signatures of Muhammad Bashir whereas this fact cannot form a ground for rejecting the ejectment petition filed by the petitioner in his capacity as the landlord. He submits on the basis of ground (f) of the petition that Muhammad Bashir was given to equivocation and was in the habit of changing his signatures whenever it suited him.
6.The learned counsel for the respondents submits that the premises were bought by the respondents from the petitioner and the possession had been given over to them but the sale deed could only be registered with regarding to 10 Marlas. The learned counsel admits that the respondents are in occupation of the premises in dispute. He also admits that the ground which has now been taken in the arguments regarding the purchase of the premises has not been taken in the reply to the ejectment petition filed by the respondents. He lastly submits that the petitioner could not prove the agreement of tenancy and, therefore, the issue No.1, the onus of which was on the petitioner, was decided against the petitioner.
7.The controversy in the ejectment petition was narrowed down to the issue of existence of relationship of landlord and tenant merely. It is also evident that the respondents have not denied the title of the petitioner and this was also not denied during the arguments by the learned counsel for the respondents today. The only fact that has been denied by the respondents is the execution of the agreement of tenancy between the parties. This seems to be contradictory and capricious. It is incredulous to think that a person is in possession of the property for the last many years and there is no basis for being in possession of that property. If the petitioner is the owner of the premises, then the respondents can only be in possession of the premises with his permission either as a tenant or as a licensee. The respondents cannot claim to remain in possession of the premises and yet no basis is put forth by the respondents for continuing in possession. The learned counsel for the respondents, for the first time in the arguments today, submitted that the premises had been purchased by the respondents. However, in the reply to the ejectment petition filed by the respondents which is at page 51 of this petition, no such defence has been taken by the respondents. In fact in reply to paragraph 3 of the ejectment petition, it has been mentioned in so many words that the premises in possession of the respondents falls in the ownership of the petitioner.
8.As I ventured to enter upon the concurrent finding of fact returned by the courts below, I am aware of the limited jurisdiction of this Court in the exercise of powers under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. However, in this regard, I shall be guided by the principles laid down by the Supreme Court of Pakistan inter alia:--
In Dilawar Jan v. Gul Rehman and 5 others (PLD 2001 Supreme Court 149), the Hon'ble Supreme Court of Pakistan has observed as under:
"...We are conscious of the fact that the learned high Court in exercise of Constitutional jurisdiction cannot sit as a Court of appeal but where order passed by Court, suffers from any jurisdictional defect or violates any provision of law, invocation of Constitutional jurisdiction would be justified and if the error is so glaring and patent that it may not be acceptable that in such an eventuality the High Courts have interfered when finding is based on insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous assumption of fact, patent errors of law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of power and where
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unreasonable view on evidence has been taken..."
In Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa and 5 others (2001 SCMR 338), it was held by the Hon'ble Supreme Court to the following effect:
"4.There is no cavil with the proposition that ordinarily the High Court in its Constitutional jurisdiction would not undertake to reappraise the evidence in rent matters to disturb the finding of facts but it would certainly interfere if such findings are found to be based on non-reading or misreading of evidence, erroneous assumptions of facts, misapplication of law, excess of abuse of jurisdiction and arbitrary exercise of powers. In appropriate cases of special jurisdiction, where the District Court is the final Appellate Court, if it reverses the finding of the trial Court on the grounds not supported by material on record, the High Court can interfere with it by issuing writ of certiorari to correct the wrong committed by the Appellate Authority. Reference can be made to Rahim Shah v. Chief Election Commissioner (PLD 1973 SC 24), Lal Din Masih v. Sakina Jan (1985 SCMR 1972), Muhammad Hayat v. Sh. Bashir Ahmad and others (1988 SCMR 193), Abdul Hamid v. Ghulam Rasul (1988 SCMR 401) and Assistant Collector v. Al-Razak Synthetic (Pvt.) Ltd. (1998 SCMR 2514)."
9.This case belongs to the class of cases which are rampant in the rent matters. It is admitted on all hands that the transactions of the kind involved (to a large degree) are traditionally undocumented and trust and belief in the other forms the basis. Giving form and structure to mutual covenants is the last thing on the mind of the parties. This cultural predilection to remain informal gives rise to disputes of complex and varying nature. It was a known jerk reaction to an ejectment petition therefore to deny the relationship of landlord and tenant on the part of a tenant (or person against whom the petition was filed). The Punjab Rented Premises Act, 2009 (Act of 2009) intends to lend formalism to all such relationships and would, it is hoped, lessen substantially the defence of denial of relationship to be an instinctive one on the occupant's/ tenant's part.
10.Courts in such matters are therefore obligated to look beyond the forms of proof recognized by law of evidence: the testimony of witnesses, documentary evidence and so-called real evidence. Apart from these, a person's physical appearance may have probative value and the demeanor of a witness has been traditionally regarded as relevant to the witness's credibility. As was stated in the Law of Evidence by I.H.Dennis:
"Acceptance of these points suggests that all that fact finders can do, and all that we can reasonably expect them to do, is to reach the best decision that they can in conditions of uncertainty. The best decision for this purpose is the one that gets closest to "what happened" in the world "out there", but accuracy cannot be guaranteed. It is because "truth" can only ever be a matter of probability that the rationalist model of adjudication pays so much attention to procedures which are intended to reduce the possibility of error."
11.It is evident from the resume of facts which have been brought forth above that this litigation has seen many rounds of original as well as appellate determinations. In some of them, the courts below determined in favour of the petitioner and upon a remand by this Court, a concurrent findings of fact have now been made against the petitioner which is under challenge in the instant petition. The impugned judgments are primarily premised on the specimen signatures present on the written reply filed by Muhammad Bashir, the predecessor in interest of the respondents No.1 (Nos.i to viii) who was the purported tenant of the petitioner in the premises on the basis of the alleged agreement of tenancy dated 31.5.1992. The findings of Special Judge (Rent), Gujranwala in this regard are pertinent and are reproduced as under:
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"...Proceeding further in this ejectment petition, the alleged signature of Muhammad Bashir, present on Ex.A1 were comparisoned from the Forensic Science Laboratory, Punjab Lahore. The report of that laboratory is present on file as Ex.C1, in which, there has been categorically mentioned that signature of Muhammad Bashir, present on Ex.A1 are different from other specimen signature present on written reply and other documents provided. Regarding this report, the petitioner raised objections which were turned down by my learned predecessor. The Director, Forensic Science Laboratory, who prepared a report Ex.C1, has appeared in the witness-box as CE-1 and he has verified his report. During cross-examination, no exception to his report could be brought out by the petitioner. So, one thing is established that alleged signature of Muhammad Bashir, present on Ex.A1 is not the signature of respondent No.1..."
12.The Addl. District Judge, Gujranwala has confirmed the findings of Special Judge (Rent) with regard to the signatures of Muhammad Bashir and the report of the Forensic Science Laboratory vide the impugned judgment dated 23.9.2011. In this regard, it is important to bear in mind that the comparison of the signatures of Muhammad Bashir was with regard to two sets of documents; one set comprised the rent deed and stamp papers dated 31.5.92 which was relied upon by the petitioner as having been executed between the parties and the compared set was his signatures on the written reply dated 31.5.96 to the ejectment petition and Vakalatnama dated 26.2.96 filed by Muhammad Bashir. In my opinion, it was a fallacy to compare the two signatures since Muhammad Bashir while affixing his signatures on the written reply to the ejectment petition (and the Vakalatnama) had in contemplation the signatures on the tenancy agreement and could well have conveniently changed the signatures to suit his purpose. It was important, therefore, for the comparison to be made of signatures affixed by Muhammad Bashir contemporaneously with the execution of the tenancy agreement and on a document which was executed during or prior to the same period. In this regard, the signatures on various documents which have been brought on record would clearly demonstrate that Muhammad Bashir conveniently molded his signatures to suit the occasion. As an illustration, the signatures on the Vakalatnama in favour of his counsel in the ejectment petition would show that the signatures of Muhammad Bashir on the said document do not correspond with the signatures affixed on the reply to the ejectment petition. They are materially different from each other. Similarly, another document which has been brought on record to demonstrate the varying signatures of Muhammad Bashir is a mortgage deed executed between Muhammad Munir, his brother and Trust Leasing Corporation Limited on which Muhammad Bashir has affixed his signatures as a witness. Once again, the signatures on that document do not match with his signatures on the reply to the ejectment petition. In fact, the signatures on the said document are closer in form to the signatures on the tenancy agreement between the parties. Once again a perusal of Ex.A.5, which is the written statement filed in a suit titled Shaukat Ali v. Muhammad Munir, which was a suit for declaration, the signatures of Muhammad Bashir do not match and are not compatible with the signatures affixed on the written reply to the ejectment petition. The entire purpose of bring forth the comparison of these documents which were on record of the Special Judge (Rent) and had been duly exhibited in evidence, is that the Special Judge (Rent) as well as the appellate court did not consider these documents nor did they make an attempt to travel beyond the report of Forensic Science Laboratory which was merely limited to signatures on two set of documents only. The opinion of the Forensic Science Laboratory is relevant and is reproduced as under:
"The questioned English signature as Bashir encircled on Rent deed 3 stamp papers dated 31.5.92 is examined and compared with the signatures of Muhammad Bashir on written Reply 12.3.96, on Wakalat Nama dt. 26.2.96, on two photostat forms Aalaf. It is found that the questioned English signatures encircled on Rent deed 3 stamp papers dated 31.5.92 bear different characteristics line quality, Alignment, Alignment of component parts, structure, connections, slope or slant, ovals, slanting and ending strokes etc compared with the present sets of specimen routine signatures on
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written reply, Wakalat Nama, photostat forms Aalf. Photo chart will be submitted at evidence."
13.It is evident from the said report that the examiner compared the signatures of two sets of documents only. It is clear, therefore, that the second set of signatures related to a period when Muhammad Bashir had signed the documents filed with the ejectment petition and, therefore, could conveniently mould his signatures since he had chosen to deny the relationship of landlord and tenant. It was, therefore, inevitable that a report of the examiner would merely conclude that the two sets of signatures did not match. However, the examiner had not at all adverted to the difference in the signatures on the two sets of documents inter se, too, which is pretty much evident to this Court while analysing them that even those signatures do not match. Moreover, it was obligatory upon the Special Judge (Rent) and Addl. District Judge to have compared these signatures with other documents which had been produced in evidence for arriving at a just conclusion. The courts below have erred by not taking into consideration the vital documents in this regard and merely relying upon the report of Forensic Science Laboratory dated 18.3.2010. With regard to opinion of handwriting expert, suffice to refer to two judgments of Supreme Court of Pakistan. In Anwar Ahmad v. Mst. Nafis Bano through Legal Heirs (2005 SCMR 152) it was held as under:
"Art. 61---Handwriting Expert---Opinion---Scope---Evidence of Handwriting Expert is always considered to be a weak type of evidence---In presence of overwhelming evidence, oral, documentary as well as circumstantial, it would be futile to examine the Expert---Even if examined, it would not outweigh the available evidence."
And in Sqn. Ldr. (R) Umeed Ali Khan v. Dr. (Mrs.) Sultana Ibrahim and others) (2007 SCMR 1692), the following observations are pertinent:--
"Opinion of handwriting expert was relevant but it did not amount to conclusive proof and it would be rebutted by overwhelming independent evidence."
14.In this regard, the provisions of section 34 of the Act of 2009 should have been kept in view by the courts below. Section 34 reads as under:
"Provisions of Qanun-e-Shahadat Order and Code of Civil Procedure not to apply.---Save as otherwise expressly provided under this Act, the provisions of the Qanun-e-Shahadat Order, 1984 (P.O. No.10 of 1984), and the Code of Civil Procedure, 1908 (Act V of 1908) shall not apply to the proceedings under this Act before a Rent Tribunal, District Judge or Additional District Judge."
15.It is clear from the reproduction of section 34 that the provisions of Qanun-e-Shahadat Order, 1984 do not apply to the proceedings under the Act of 2009 before a Rent Tribunal and, therefore, the Rent Tribunals should not be entangled by the strict rules provided by the Qanun-e-Shahadat Order, 1984 and while adjudicating upon an ejectment petition should take a liberal and pragmatic approach by looking at the entire facts and circumstances of the case and in particular in cases where the objection to the relationship of landlord and tenant is taken. Had the courts below kept in view the rule as regards expert opinion settled by the Supreme Court of Pakistan, and the scepticism with which Superior Courts treat the defence of denial of relationship of landlord and tenant, they would inevitably have arrived at a different conclusion. The key is to weigh on the basis of preponderance of evidence. The respondent in such cases is not entirely absolved of his obligation to deny the relationship without more. He must be heard to urge the basis of his occupation of the disputed premises in order to demonstrate the good faith in which it was taken.
16.In the instant case, a rent deed has been brought in evidence and though the witness Shaukat Butt to the rent deed could not be produced in order to prove the said deed by the petitioner, yet it was brought on
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record that the said witness had proceeded abroad and was not available. However, there is evidence to suggest that the rent was in fact paid for a certain period of time by the respondent Muhammad Bashir and in this regard the evidence of Basharat Ali Chowkidar can also be referred. It was also not denied by Muhammad Bashir, the purported tenant, that the title of the premises vested in the petitioner and sufficient evidence had been brought forth in this regard whereby a suit for declaration had been filed by the petitioner and which had been decided in his favour, thus, entitling him to the ownership of the premises. This was not in dispute between the parties. It is not in dispute also and no rebuttal was forthcoming that the stamp papers for the tenancy agreement was purchased during the year 1992 and the stamp vendor was also produced as a witness as AW.5. Further the witnesses produced as AW.1 and AW.2 did depose regarding the sending of money order but this aspect was brushed aside by the Special Judge (Rent) on the flimsy pretext that this was not an assertion made in the ejectment petition. It is incredulous, therefore, that the respondent Muhammad Bashir, having not denied the title of the petitioner, was denying the relationship of landlord and tenant whereas he had nothing to say regarding his status as an occupant of the said premises. There was no attempt on his part to claim the ownership to the said premises nor did he allege that there was suit pending for the purpose of claiming any right to the said premises. A bald assertion on his part merely denying a relationship of landlord and tenant and denying the signatures on the tenancy agreement would only lead to an inference that the entire defence was set up in order to prolong the agony of the petitioner/landlord in which he has been successful, in that, the ejectment petition is pending since 1996 and he continues to occupy the premises (through his legal heirs now) without asserting or establishing any right to the said premises. The observation of the Hon'ble Supreme Court of Pakistan in Shajar Islam v. Muhammad Siddique and 2 others (PLD 2007 Supreme Court 45) can be referred to as follows:
"In normal circumstances, in absence of any evidence to the contrary, owner of property by virtue of his title would be presumed to be landlord and person in possession of premises would be considered as tenant under the law---Tenancy would not be necessarily created by a written instrument in express terms, rather might also be oral and implied---High Court in exercise of its Constitutional jurisdiction was not supposed to interfere in findings on controversial question of fact based on evidence, even if such finding was erroneous..."
17.In a case of the nature in which the relationship of landlord and tenant is denied (yet the title or ownership is not seriously disputed) the courts cannot permit the tenant to raise the issue and sit back and watch the burden to be discharged by the landlord. As I have stated above, ours is not a society with a penchant to document all transactions. We live in a social milieu of informal and loose set of rules. There were no legal underpinnings for such commercial transactions until the Act of 2009 brought a sea change and heralded a legal requirement to register and formalize such matters.
18.It is broadly true that he who asserts must prove, meaning that a party bears a burden of proof of every matter which is an essential part of the parties' cause of action. "Generally, although there are exceptions, a plaintiff or applicant must establish the existence of all the pre-conditions and other facts entitling him to the order he seeks:" per Lord Nicholls in Re. H. (Minors) [1996) A.C. 563 at 586, HL. It is also true that the allocation of both legal and evidential burdens is a question of law. Once the burdens have been determined they do not shift during the course of a trial. Yet when this defence is set up by the tenant, he must also bear a burden of adducing evidence in order to bring home his good faith and the cogency of his defence. It must take on the flavour of a dialogue between the landlord and tenant, a dialogue in which the tenant is being obliged to participate. As a rule, there is an estoppel against the tenants in such matters. "The underlying principle of estoppel in that a tenant who might not have got possession but for the tenancy admitting the right of landlord, must not be permitted to put his landlord in an inequitable situation by taking undue advantage of the possession that he got and the probable defect in the title of his landlord". (Halsbury's
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Laws of India, Vol. 3, at 200.023.). There is a positive obligation on the tenant to spell out clearly the contours of his defence, the basis for it and the circumstances underlying it. A mere denial will not do. There is a corresponding duty on the rent tribunals to see to it that the denial is not based on frivolity and is not a contraption.
19.Another important factor which would have a gravitational pull on the instant case is that Muhammad Bashir has since died and his legal heirs have been made a party to this petition. Therefore, it would be even more unreasonable for the legal heirs to continue to occupy the premises without any right vested in them.
20.Having analysed the entire facts and circumstances of the case, I am convinced that the denial of relationship was a sham and a subterfuge. To deny this fact would lead to unconscionable results and the owner of the premises shall be left staring into the prospect of another long-drawn litigation process in order to reclaim possession of his own property.
In view of the findings above, this petition is accepted and consequently, the ejectment petition also stands accepted with the result that the respondents shall vacate the premises within a period of two months from this order.
HBT/S-33/LPetition accepted.
[Lahore]
Before Shahid Karim, J
SHAUKAT ALI----Petitioner
Versus
Sheikh MUHAMMAD BASHIR through L.Rs. and another----Respondents
Writ Petition No.27630 of 2011, decided on 6th February, 2015.
Punjab Rented Premises Act (VII of 2009)---
----S. 15---Qanun-e-Shahadat (10 of 1984), Arts.114 & 117---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant---Relationship of landlord and tenant---Burden of proof---Estoppel, principle of---Applicability---Tenant, had not denied the title of the landlord in respect of premises in question, but denied the relationship of landlord and tenant between the parties and had nothing to say regarding his status as an occupant of the premises---Tenant had made no attempt to claim the ownership of the premises, nor did he allege that there was any suit pending for claiming any right to the premises in question---Bald assertion of tenant denying relationship of landlord and tenant and signatures on the tenancy agreement, would only lead to an inference that entire defence was set up in order to prolong the agony of the landlord---He who asserted must prove---Party would bear a burden of proof of every matter, which was an essential part of the party's cause of action---Generally, there were exceptions, but plaintiff or applicant must establish the existence of all the pre-conditions and other facts entitling him to the order he had sought---Once the burden had been determined, that would not shift during the course of trial---When the defence was set up by the tenant, he must also bear a burden of adducing evidence in order to bring home his good faith, and cogency of his defence---As a rule, there was an estoppel against the tenant in such matters---Underlying principle of estoppel in that a tenant who might not have got possession, but for the tenancy admitting the right of landlord, must not be permitted to put his landlord in an inequitable situation by taking undue advantage of the possession, that he got, and the probable defect in the title of his landlord---Positive obligation was on the tenant to spell out clearly the contours of his defence, the basis for it and the circumstances underlying it---Mere denial, would not do---Corresponding duty on the Rent Tribunal was to see that the denial was not based on frivolity, and was not a contraption---Denial of relationship by tenant, in the present case, was a sham and a subterfuge---To deny that fact would lead to unconscionable results, and the owner of the premises would be left into the prospect of another long-drawn litigation process in order to reclaim possession of his own property---Constitutional petition was accepted and consequently the ejectment petition also stood accepted with the result that tenant should vacate the premises within a period of two months.
Dilawar Jan v. Gul Rehman and 5 others PLD 2001 SC 149; Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa and 5 others 2001 SCMR 338; Anwar Ahmad v. Mst. Nafis Bano through Legal Heirs 2005 SCMR 152; Sqn. Ldr. (R) Umeed Ali Khan v. Dr. (Mrs.) Sultana Ibrahim and others 2007 SCMR 1692; Shajar Islam v. Muhammad Siddique and 2 others PLD 2007 SC 45; H. (Minors) (1996) A.C. 563 at 586, HL and Halsbury's Laws of India, Vol. 3, at 200.023 ref.
Sardar Muhammad Ramzan for Petitioner.
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ORDER
Rana Surbuland Khan for Respondents.
Addl. A.G.
SHAHID KARIM, J.--- The relevant facts are that the petitioner herein filed an ejectment petition on 05.09.1995 against the predecessor-in-interest of respondent No.1 (respondents Nos.i to viii) and Muhammad Munir respondent No.2.
2.The averments and the grounds in the ejectment petition were that the property bearing No.XXVI-358-137, measuring 20 Marlas situated at Ghurduar Road, Gujranwala (premises) was rented out by the petitioner to Muhammad Bashir through an agreement of tenancy for a term of three years starting from 01.06.1992 to 01.06.1995 and the rate of rent was Rs.1000/- per month. The tenancy expired in June, 1995 and a notice upon expiry was sent to the respondents to hand over the vacant possession of the premises to the petitioner, which was refused by the respondents. The petitioner sought the eviction of the respondents mainly on the grounds of willful default from June, 1995 to 31.08.1995, subletting the premises by the respondent No.1 to respondent No.2, personal bona fide need of the petitioner and lastly on the ground that the tenancy stood expired from 1st of June, 1995. The following issues were framed by the Rent Controller on 31.3.1996:
(i)Whether the relationship of landlord and tenant exist between the parties? OPA.
(ii)Whether the petitioner has got no cause of action? OPR.
(ii)Relief."
3.The parties led their evidence on the issues framed. Suffice to mention here that in order to prove that the petitioner was the owner and landlord of the premises, he produced Ex.A.4 attested copy of judgment dated 5.6.1999 regarding suit titled "Shaukat Ali v. Muhammad Munir etc.", which was a suit for declaration. Apart from this, oral evidence was also produced by the petitioner and the respondents in support of their respective cases which will be adverted to as and when required in the later part of this order.
4.A history of the litigation and the various stages it has gone through will be in order here. The ejectment petition was dismissed by the Rent Controller, Gujranwala vide judgment dated 30.05.1998 and appeal against the said judgment was accepted by the appellate court vide judgment dated 8.4.99 and a direction was given to record the remaining evidence of the petitioner and to decide the rent petition afresh. Upon remand, the Rent Controller, Gujranwala examined Abdul Aziz AW.5 and Mian Maqsood Ahmad Advocate AW.6 and after hearing the parties, accepted the ejectment petition vide judgment dated 24.4.2001. The said order was again appealed before the Addl. District Judge which was accepted and the ejectment petition was again remanded on 13.11.2001 with a direction for it to be disposed of anew. On 10.12.2001, the Rent Controller decided the ejectment petition once again in favour of the petitioner and again the order of the Rent Controller was set aside by Addl. District Judge vide judgment dated 30.06.2003. The judgment of the Addl. District Judge was challenged before this Court which was decided on 19.5.2009 and once again the matter was remanded to the Rent Controller to decide the issue No.1 in the light of the observation made by this Court. In short, this Court required the comparison of the hand-writing of the respondents on the purported agreement of tenancy Ex.A.1 with other documents. This was duly done upon remand of the proceedings and the record of the Forensic Science Laboratory was exhibited as Ex.C.1. The statement of Dr. Ameer Ali Hussain, Director Forensic Science Laboratory was also recorded as CW.1. On 07.03.2011, the
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Special Judge (Rent) passed the impugned order which was confirmed by the Addl. District Judge in appeal on 23.9.2011. Both the said orders are under challenge in this petition (impugned orders).
5.The learned counsel for the petitioner submits that the title of the petitioner to the premises is not denied by the respondents and the respondents merely deny the fact of tenancy to exist or that an agreement for tenancy was ever executed between the parties. He further submits that the judgments of the courts below are based on the comparison of signatures of Muhammad Bashir whereas this fact cannot form a ground for rejecting the ejectment petition filed by the petitioner in his capacity as the landlord. He submits on the basis of ground (f) of the petition that Muhammad Bashir was given to equivocation and was in the habit of changing his signatures whenever it suited him.
6.The learned counsel for the respondents submits that the premises were bought by the respondents from the petitioner and the possession had been given over to them but the sale deed could only be registered with regarding to 10 Marlas. The learned counsel admits that the respondents are in occupation of the premises in dispute. He also admits that the ground which has now been taken in the arguments regarding the purchase of the premises has not been taken in the reply to the ejectment petition filed by the respondents. He lastly submits that the petitioner could not prove the agreement of tenancy and, therefore, the issue No.1, the onus of which was on the petitioner, was decided against the petitioner.
7.The controversy in the ejectment petition was narrowed down to the issue of existence of relationship of landlord and tenant merely. It is also evident that the respondents have not denied the title of the petitioner and this was also not denied during the arguments by the learned counsel for the respondents today. The only fact that has been denied by the respondents is the execution of the agreement of tenancy between the parties. This seems to be contradictory and capricious. It is incredulous to think that a person is in possession of the property for the last many years and there is no basis for being in possession of that property. If the petitioner is the owner of the premises, then the respondents can only be in possession of the premises with his permission either as a tenant or as a licensee. The respondents cannot claim to remain in possession of the premises and yet no basis is put forth by the respondents for continuing in possession. The learned counsel for the respondents, for the first time in the arguments today, submitted that the premises had been purchased by the respondents. However, in the reply to the ejectment petition filed by the respondents which is at page 51 of this petition, no such defence has been taken by the respondents. In fact in reply to paragraph 3 of the ejectment petition, it has been mentioned in so many words that the premises in possession of the respondents falls in the ownership of the petitioner.
8.As I ventured to enter upon the concurrent finding of fact returned by the courts below, I am aware of the limited jurisdiction of this Court in the exercise of powers under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. However, in this regard, I shall be guided by the principles laid down by the Supreme Court of Pakistan inter alia:--
In Dilawar Jan v. Gul Rehman and 5 others (PLD 2001 Supreme Court 149), the Hon'ble Supreme Court of Pakistan has observed as under:
"...We are conscious of the fact that the learned high Court in exercise of Constitutional jurisdiction cannot sit as a Court of appeal but where order passed by Court, suffers from any jurisdictional defect or violates any provision of law, invocation of Constitutional jurisdiction would be justified and if the error is so glaring and patent that it may not be acceptable that in such an eventuality the High Courts have interfered when finding is based on insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous assumption of fact, patent errors of law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of power and where
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unreasonable view on evidence has been taken..."
In Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa and 5 others (2001 SCMR 338), it was held by the Hon'ble Supreme Court to the following effect:
"4.There is no cavil with the proposition that ordinarily the High Court in its Constitutional jurisdiction would not undertake to reappraise the evidence in rent matters to disturb the finding of facts but it would certainly interfere if such findings are found to be based on non-reading or misreading of evidence, erroneous assumptions of facts, misapplication of law, excess of abuse of jurisdiction and arbitrary exercise of powers. In appropriate cases of special jurisdiction, where the District Court is the final Appellate Court, if it reverses the finding of the trial Court on the grounds not supported by material on record, the High Court can interfere with it by issuing writ of certiorari to correct the wrong committed by the Appellate Authority. Reference can be made to Rahim Shah v. Chief Election Commissioner (PLD 1973 SC 24), Lal Din Masih v. Sakina Jan (1985 SCMR 1972), Muhammad Hayat v. Sh. Bashir Ahmad and others (1988 SCMR 193), Abdul Hamid v. Ghulam Rasul (1988 SCMR 401) and Assistant Collector v. Al-Razak Synthetic (Pvt.) Ltd. (1998 SCMR 2514)."
9.This case belongs to the class of cases which are rampant in the rent matters. It is admitted on all hands that the transactions of the kind involved (to a large degree) are traditionally undocumented and trust and belief in the other forms the basis. Giving form and structure to mutual covenants is the last thing on the mind of the parties. This cultural predilection to remain informal gives rise to disputes of complex and varying nature. It was a known jerk reaction to an ejectment petition therefore to deny the relationship of landlord and tenant on the part of a tenant (or person against whom the petition was filed). The Punjab Rented Premises Act, 2009 (Act of 2009) intends to lend formalism to all such relationships and would, it is hoped, lessen substantially the defence of denial of relationship to be an instinctive one on the occupant's/ tenant's part.
10.Courts in such matters are therefore obligated to look beyond the forms of proof recognized by law of evidence: the testimony of witnesses, documentary evidence and so-called real evidence. Apart from these, a person's physical appearance may have probative value and the demeanor of a witness has been traditionally regarded as relevant to the witness's credibility. As was stated in the Law of Evidence by I.H.Dennis:
"Acceptance of these points suggests that all that fact finders can do, and all that we can reasonably expect them to do, is to reach the best decision that they can in conditions of uncertainty. The best decision for this purpose is the one that gets closest to "what happened" in the world "out there", but accuracy cannot be guaranteed. It is because "truth" can only ever be a matter of probability that the rationalist model of adjudication pays so much attention to procedures which are intended to reduce the possibility of error."
11.It is evident from the resume of facts which have been brought forth above that this litigation has seen many rounds of original as well as appellate determinations. In some of them, the courts below determined in favour of the petitioner and upon a remand by this Court, a concurrent findings of fact have now been made against the petitioner which is under challenge in the instant petition. The impugned judgments are primarily premised on the specimen signatures present on the written reply filed by Muhammad Bashir, the predecessor in interest of the respondents No.1 (Nos.i to viii) who was the purported tenant of the petitioner in the premises on the basis of the alleged agreement of tenancy dated 31.5.1992. The findings of Special Judge (Rent), Gujranwala in this regard are pertinent and are reproduced as under:
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"...Proceeding further in this ejectment petition, the alleged signature of Muhammad Bashir, present on Ex.A1 were comparisoned from the Forensic Science Laboratory, Punjab Lahore. The report of that laboratory is present on file as Ex.C1, in which, there has been categorically mentioned that signature of Muhammad Bashir, present on Ex.A1 are different from other specimen signature present on written reply and other documents provided. Regarding this report, the petitioner raised objections which were turned down by my learned predecessor. The Director, Forensic Science Laboratory, who prepared a report Ex.C1, has appeared in the witness-box as CE-1 and he has verified his report. During cross-examination, no exception to his report could be brought out by the petitioner. So, one thing is established that alleged signature of Muhammad Bashir, present on Ex.A1 is not the signature of respondent No.1..."
12.The Addl. District Judge, Gujranwala has confirmed the findings of Special Judge (Rent) with regard to the signatures of Muhammad Bashir and the report of the Forensic Science Laboratory vide the impugned judgment dated 23.9.2011. In this regard, it is important to bear in mind that the comparison of the signatures of Muhammad Bashir was with regard to two sets of documents; one set comprised the rent deed and stamp papers dated 31.5.92 which was relied upon by the petitioner as having been executed between the parties and the compared set was his signatures on the written reply dated 31.5.96 to the ejectment petition and Vakalatnama dated 26.2.96 filed by Muhammad Bashir. In my opinion, it was a fallacy to compare the two signatures since Muhammad Bashir while affixing his signatures on the written reply to the ejectment petition (and the Vakalatnama) had in contemplation the signatures on the tenancy agreement and could well have conveniently changed the signatures to suit his purpose. It was important, therefore, for the comparison to be made of signatures affixed by Muhammad Bashir contemporaneously with the execution of the tenancy agreement and on a document which was executed during or prior to the same period. In this regard, the signatures on various documents which have been brought on record would clearly demonstrate that Muhammad Bashir conveniently molded his signatures to suit the occasion. As an illustration, the signatures on the Vakalatnama in favour of his counsel in the ejectment petition would show that the signatures of Muhammad Bashir on the said document do not correspond with the signatures affixed on the reply to the ejectment petition. They are materially different from each other. Similarly, another document which has been brought on record to demonstrate the varying signatures of Muhammad Bashir is a mortgage deed executed between Muhammad Munir, his brother and Trust Leasing Corporation Limited on which Muhammad Bashir has affixed his signatures as a witness. Once again, the signatures on that document do not match with his signatures on the reply to the ejectment petition. In fact, the signatures on the said document are closer in form to the signatures on the tenancy agreement between the parties. Once again a perusal of Ex.A.5, which is the written statement filed in a suit titled Shaukat Ali v. Muhammad Munir, which was a suit for declaration, the signatures of Muhammad Bashir do not match and are not compatible with the signatures affixed on the written reply to the ejectment petition. The entire purpose of bring forth the comparison of these documents which were on record of the Special Judge (Rent) and had been duly exhibited in evidence, is that the Special Judge (Rent) as well as the appellate court did not consider these documents nor did they make an attempt to travel beyond the report of Forensic Science Laboratory which was merely limited to signatures on two set of documents only. The opinion of the Forensic Science Laboratory is relevant and is reproduced as under:
"The questioned English signature as Bashir encircled on Rent deed 3 stamp papers dated 31.5.92 is examined and compared with the signatures of Muhammad Bashir on written Reply 12.3.96, on Wakalat Nama dt. 26.2.96, on two photostat forms Aalaf. It is found that the questioned English signatures encircled on Rent deed 3 stamp papers dated 31.5.92 bear different characteristics line quality, Alignment, Alignment of component parts, structure, connections, slope or slant, ovals, slanting and ending strokes etc compared with the present sets of specimen routine signatures on
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written reply, Wakalat Nama, photostat forms Aalf. Photo chart will be submitted at evidence."
13.It is evident from the said report that the examiner compared the signatures of two sets of documents only. It is clear, therefore, that the second set of signatures related to a period when Muhammad Bashir had signed the documents filed with the ejectment petition and, therefore, could conveniently mould his signatures since he had chosen to deny the relationship of landlord and tenant. It was, therefore, inevitable that a report of the examiner would merely conclude that the two sets of signatures did not match. However, the examiner had not at all adverted to the difference in the signatures on the two sets of documents inter se, too, which is pretty much evident to this Court while analysing them that even those signatures do not match. Moreover, it was obligatory upon the Special Judge (Rent) and Addl. District Judge to have compared these signatures with other documents which had been produced in evidence for arriving at a just conclusion. The courts below have erred by not taking into consideration the vital documents in this regard and merely relying upon the report of Forensic Science Laboratory dated 18.3.2010. With regard to opinion of handwriting expert, suffice to refer to two judgments of Supreme Court of Pakistan. In Anwar Ahmad v. Mst. Nafis Bano through Legal Heirs (2005 SCMR 152) it was held as under:
"Art. 61---Handwriting Expert---Opinion---Scope---Evidence of Handwriting Expert is always considered to be a weak type of evidence---In presence of overwhelming evidence, oral, documentary as well as circumstantial, it would be futile to examine the Expert---Even if examined, it would not outweigh the available evidence."
And in Sqn. Ldr. (R) Umeed Ali Khan v. Dr. (Mrs.) Sultana Ibrahim and others) (2007 SCMR 1692), the following observations are pertinent:--
"Opinion of handwriting expert was relevant but it did not amount to conclusive proof and it would be rebutted by overwhelming independent evidence."
14.In this regard, the provisions of section 34 of the Act of 2009 should have been kept in view by the courts below. Section 34 reads as under:
"Provisions of Qanun-e-Shahadat Order and Code of Civil Procedure not to apply.---Save as otherwise expressly provided under this Act, the provisions of the Qanun-e-Shahadat Order, 1984 (P.O. No.10 of 1984), and the Code of Civil Procedure, 1908 (Act V of 1908) shall not apply to the proceedings under this Act before a Rent Tribunal, District Judge or Additional District Judge."
15.It is clear from the reproduction of section 34 that the provisions of Qanun-e-Shahadat Order, 1984 do not apply to the proceedings under the Act of 2009 before a Rent Tribunal and, therefore, the Rent Tribunals should not be entangled by the strict rules provided by the Qanun-e-Shahadat Order, 1984 and while adjudicating upon an ejectment petition should take a liberal and pragmatic approach by looking at the entire facts and circumstances of the case and in particular in cases where the objection to the relationship of landlord and tenant is taken. Had the courts below kept in view the rule as regards expert opinion settled by the Supreme Court of Pakistan, and the scepticism with which Superior Courts treat the defence of denial of relationship of landlord and tenant, they would inevitably have arrived at a different conclusion. The key is to weigh on the basis of preponderance of evidence. The respondent in such cases is not entirely absolved of his obligation to deny the relationship without more. He must be heard to urge the basis of his occupation of the disputed premises in order to demonstrate the good faith in which it was taken.
16.In the instant case, a rent deed has been brought in evidence and though the witness Shaukat Butt to the rent deed could not be produced in order to prove the said deed by the petitioner, yet it was brought on
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record that the said witness had proceeded abroad and was not available. However, there is evidence to suggest that the rent was in fact paid for a certain period of time by the respondent Muhammad Bashir and in this regard the evidence of Basharat Ali Chowkidar can also be referred. It was also not denied by Muhammad Bashir, the purported tenant, that the title of the premises vested in the petitioner and sufficient evidence had been brought forth in this regard whereby a suit for declaration had been filed by the petitioner and which had been decided in his favour, thus, entitling him to the ownership of the premises. This was not in dispute between the parties. It is not in dispute also and no rebuttal was forthcoming that the stamp papers for the tenancy agreement was purchased during the year 1992 and the stamp vendor was also produced as a witness as AW.5. Further the witnesses produced as AW.1 and AW.2 did depose regarding the sending of money order but this aspect was brushed aside by the Special Judge (Rent) on the flimsy pretext that this was not an assertion made in the ejectment petition. It is incredulous, therefore, that the respondent Muhammad Bashir, having not denied the title of the petitioner, was denying the relationship of landlord and tenant whereas he had nothing to say regarding his status as an occupant of the said premises. There was no attempt on his part to claim the ownership to the said premises nor did he allege that there was suit pending for the purpose of claiming any right to the said premises. A bald assertion on his part merely denying a relationship of landlord and tenant and denying the signatures on the tenancy agreement would only lead to an inference that the entire defence was set up in order to prolong the agony of the petitioner/landlord in which he has been successful, in that, the ejectment petition is pending since 1996 and he continues to occupy the premises (through his legal heirs now) without asserting or establishing any right to the said premises. The observation of the Hon'ble Supreme Court of Pakistan in Shajar Islam v. Muhammad Siddique and 2 others (PLD 2007 Supreme Court 45) can be referred to as follows:
"In normal circumstances, in absence of any evidence to the contrary, owner of property by virtue of his title would be presumed to be landlord and person in possession of premises would be considered as tenant under the law---Tenancy would not be necessarily created by a written instrument in express terms, rather might also be oral and implied---High Court in exercise of its Constitutional jurisdiction was not supposed to interfere in findings on controversial question of fact based on evidence, even if such finding was erroneous..."
17.In a case of the nature in which the relationship of landlord and tenant is denied (yet the title or ownership is not seriously disputed) the courts cannot permit the tenant to raise the issue and sit back and watch the burden to be discharged by the landlord. As I have stated above, ours is not a society with a penchant to document all transactions. We live in a social milieu of informal and loose set of rules. There were no legal underpinnings for such commercial transactions until the Act of 2009 brought a sea change and heralded a legal requirement to register and formalize such matters.
18.It is broadly true that he who asserts must prove, meaning that a party bears a burden of proof of every matter which is an essential part of the parties' cause of action. "Generally, although there are exceptions, a plaintiff or applicant must establish the existence of all the pre-conditions and other facts entitling him to the order he seeks:" per Lord Nicholls in Re. H. (Minors) [1996) A.C. 563 at 586, HL. It is also true that the allocation of both legal and evidential burdens is a question of law. Once the burdens have been determined they do not shift during the course of a trial. Yet when this defence is set up by the tenant, he must also bear a burden of adducing evidence in order to bring home his good faith and the cogency of his defence. It must take on the flavour of a dialogue between the landlord and tenant, a dialogue in which the tenant is being obliged to participate. As a rule, there is an estoppel against the tenants in such matters. "The underlying principle of estoppel in that a tenant who might not have got possession but for the tenancy admitting the right of landlord, must not be permitted to put his landlord in an inequitable situation by taking undue advantage of the possession that he got and the probable defect in the title of his landlord". (Halsbury's
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Laws of India, Vol. 3, at 200.023.). There is a positive obligation on the tenant to spell out clearly the contours of his defence, the basis for it and the circumstances underlying it. A mere denial will not do. There is a corresponding duty on the rent tribunals to see to it that the denial is not based on frivolity and is not a contraption.
19.Another important factor which would have a gravitational pull on the instant case is that Muhammad Bashir has since died and his legal heirs have been made a party to this petition. Therefore, it would be even more unreasonable for the legal heirs to continue to occupy the premises without any right vested in them.
20.Having analysed the entire facts and circumstances of the case, I am convinced that the denial of relationship was a sham and a subterfuge. To deny this fact would lead to unconscionable results and the owner of the premises shall be left staring into the prospect of another long-drawn litigation process in order to reclaim possession of his own property.
In view of the findings above, this petition is accepted and consequently, the ejectment petition also stands accepted with the result that the respondents shall vacate the premises within a period of two months from this order.
HBT/S-33/LPetition accepted.
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