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Second Rent Appeal No. 402 of 1971, decided on 5th November 1976.

‑‑ S. 49 [as amended by Registration (Amendment) Ordinance (XLV of 1962), S. 13]‑Unregistered document‑Examination for collateral purpose‑Contention that proviso clause in original S. 49 having been omitted by amending Ordinance, no room left for examination of contents of an unregistered document even for a collateral purpose Held, squarely answered in negative in Division Bench cases.

Moosa v. Muhammad Yaqoob P L D 1966 Kar. 376 and P. E. C. H. Society v. Mst. Anwar Sultana P L D 1969 Kar. 474 ref.

‑‑ Document‑Admissibility‑Document once admitted in evidence without objection‑No objection could be raised to its admissibility at a later stage.‑[Document]

Suraj Bhan v. Hafiz Abdul A I R 1944 Lah. 1 ; Muhanmad Yusuf v. Hafiz Abdul Khaliq A I R 1944 Lah. 9 and Muhammad Yusuf Khan Khatak v. S. M. Ayub P L D 1973 S C 160 ref.

S. 13‑Tenant, eviction of‑Rent of tenement fixed at Rs. 115 p.m. but landlord demanding it at the rate of Rs. 250 p.m. Tenant always ready to pay rent @ Rs. 100 p.m.‑Tenant claiming deduction of Re. 15 p.m. towards adjustment of Rs. 3,000 deposited with previous landlord‑Case at worse one of bona fide dispute regarding deduction of Rs. 15 p.m., tenant not likely to have invited his eviction by withholding . Rs. 15 unless under a bona fide impression of being justified to do so‑Courts below, held, not wrong in denying eviction of tenant on ground of default in payment of rent in circumstances.

‑‑ S. 15‑‑Eviction on ground of personal use‑Landlord's first notice to tenant not stating requirement of tenement for personal use‑Landlord getting his B. Coin. degree in 1961, and registered as Income‑tax Practitioner in 1962, but eviction application not filed till May 1966‑Requirement for personal use appearing to have been added as an after thought by addition of a paragraph‑Original application appearing to have been drafted in March 1966 and such new para. added in margin at time of filing of application in May 1966 Rent of Re. 250 as demanded being obviously not warranted landlord appearing to have thought it convenient to add ground of personal use‑Fact of premises having been purchased with landlord's father's funds and though adjoining shop belonging to his father fell vacant in 1968, yet was rented out instead of meeting allegedly genuine need of landlord to start his income‑tax practice, in circumstances, assumes significance‑Landlord, held, failed to make out case of reasonable requirement of premises for his personal use.

Akhtar Mahmood for Appellant.

All Ahmad Fazeel for Respondent.

Dates of hearing : 10th and 14th September 1976.

The appellant‑landlord sought the eviction of the respondent‑tenant on two grounds, namely, default in payment of rent and personal use. More particularly it was alleged that the landlord purchased the subject shop premises under a registered sale deed dated 21st October 1965 following which a demand for rent at the rate of Rs. 250 was made which was not acceded to resulting in default in payment of rent from 21st October 1965. As regards personal use it was alleged that the landlord had passed B. Coin. examination from the University of Sind and required the premises for his personal use as office.

2. In the written statement the tenant took up the defence that the rent was Rs. 115 per month under a written agreement dated 14th May 1964 with one Muhammad Ahmad from whom the landlord had purchased the shop and in terms of, this agreement, rupees three thousand deposited with the landlord, was to be adjusted at Re. 15 per month, requiring the tenant to pay Rs. 100 as monthly rent, which rent the landlord refused to accept and accordingly, there was no default. The bona fide need was denied and it was alleged that the application was filed to harass the tenant with a view to pressurise him to enhance the rent.

3. In his evidence the landlord admitted that the tenant used to pay Rs. 115 per month as rent to his predecessor Muhammad Ahmad and that he had demanded Rs. 250 as rent from the tenant. He produced his 1961 B. Coin. degree and his certificate of registration as an Income‑tax Practitioner dated 10‑1‑1962. He deposed that he intended to start income‑tax practice with which view in mind he had purchased the shop in dispute and had no other property in Hyderabad. In his cross examination he admitted that he did not make any enquiry from the said Muhammad Ahmad as to what were the terms and conditions of the tenancy between him and the tenant and all he was told was that rent was Re. 115 per month. He admitted that a shop adjacent to the disputed shop belongs to his father and the same bad been rented out by the latter about 8 or 9 months ago to one Muhammad Hanif on rent. He further stated that when the shop was purchased he was a student having no source of income and his father had given him money to purchase the property and that he was the only son of his father. He denied that the tenant had offered to pay rent at the rate of Rs. 100 per month and he did not know if the tenant had sent rent by money orders.

4. The tenant in his evidence produced copy of the agreement between him and Muhammad Ahmad. He admitted the receipt of notice from the landlord demanding Rs. 250 per month as rent to which the reply given was that the rent was Re. 115 per month out of which Re. 15 was to be adjusted against Re. 3,000 deposited with the previous landlord, which deposit had stood reduced by Rs. 300, leaving a balance sum of Rs. 2,700 for further adjustment. He produced five money order coupens remitting rent at Rs. 100 per month which were not accepted by the landlord. He admitted that the shop was in a business centre and could not say if the landlord had any shop of his own to start his income‑tax practice.

5. The Rent Controller hold that the tenant failed to prove existence of any agreement between him and said Muhammad Ahmad ; that the rent of the premises was Rs. 115 per month, the landlord was justified in refusing to accept the money orders for it did not represent the full amount of the rent at the rate of. Rs. 115 per month and the tenant was, therefore. defaulter in payment of rent. As to personal use it was contended that the same was not seriously disputed by the tenant who had on the contrary suggested that the landlord could start his practice in the hall of his house. As to the availability of the adjoining shop, the Rent Controller came to the conclusion that the same was occupied and the landlord "cannot be forced to get one of the shops vacated for his office for it might cause financial loss to the leather business of the father of the landlord or may into the leather business of the landlord" and concluded that the landlord was the beat judge of his interest and he knew the best locality which was suitable for his income‑tax practice. Before parting with the matter, the Rent Controller was pleased to observe that in the peculiar circumstances of the case be might not have allowed the application in favour of the landlord on the question of default but since he had arrived at the conclusion that the landlord needed the shop premises for his personal bona fide need he had granted the eviction.

6. In appeal the appellate Court held that the agreement dated 14th May 1964 between the tenant and said Muhammad Ahmad was admissible for collateral purposes, namely, to show the rate of rent, which was Rs. 115 per month, out of which Rs. 100 was to be paid as rent and Rs. 15 was to be ad justed against the sum of Rs. 3,000 which rent was tendered by the tenant and wrongly refused by the landlord. On the question of personal need he found that the disputed shop was purchased by the father in the name of the son in order to get the shop vacated on the ground of requirement of the son and even otherwise the landlord and his father had several other shops and also a big residential house in their possession where the ground floor hall was vacant in which the landlord could easily start his practice. Accordingly, he allowed the appeal.

7. Now it is obvious that both the Courts below were not prepared to make an order of eviction on the ground of non‑payment of rent. Mr. Akhtar Mahmood the learned counsel for the landlord challenged the finding that there was no default on the ground that the First Appellate Court was not entitled to look into the agreement dated 14‑5‑1964, even for a collateral purpose and if that be so, the rent, was Rs. 115 per month and that though the landlord wrongly demanded Rs. 250 as rent, the tenant was obliged to remit at Rs. 115 per month and he having not done so was clearly in default. That the aforesaid agreement which purported to be a lease of five years was not admissible in evidence being unregistered was conceded by Mr. Fazeel, the learned counsel for the tenant but the question is whether it could not be looked into for a collateral purpose. Mr. Akhtar Mahmud contended that the First Appellate Court has held it to be so by looking at the unamended section 49 of the Registration Act prior to Ordinance XLV of 1962.

Section 49 before amendment read as follows :

"Section 49.‑No document required by section 17 or by any provision of the Transfer of Property Act, 1882, to be registered shall‑

(a) affect any immovable property comprised therein, or

(b) confer any power to adopt, or

(c) be received as evidence of any transaction affecting such property on conferring such power,

unless it has been registered :

document affecting, immovable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or as evidence of part performance of a contract for the purposes of section 53‑A of the Transfer of Property Act, 1882, or as evidence of any collateral transaction not required to be effected by registered instrument."

The amended section 49 of the Registration Act, reads as follows :

"Section 49. Effect of non‑registration of documents required to be registered.‑No document required to be registered under this Act on under any earlier law providing for or relating to registration of documents shall‑

(a) operate to create, declare, assign limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, to or in immovable property, or

(b) confer any power to adopt, unless it has been registered."

8. The argument of Mr. Akhtar Mahmud was that with the omission of the proviso there was no room for examining the contents of an unregistered document even for a collateral purpose. The contention raised has, however, been squarely answered in the negative in the two Division Bench decisions of this Court reported in Moosa v. Muhammad Yaqub (P L D 1966 Kar. 376) and P. E. C. H. Society v. Mst. Anwar Sultana (P L D 1969 Kar. 474).

9. It was next contended on behalf of the landlord that only a copy of the said agreement was produced and it was inadmissible under section 64 of the Evidence Act. Admittedly, the copy of the agreement, which inci dentally bears the signatures of the previous landlord as well as the tenant, was exhibited without any objection on the part of the landlord. The settled law is that once a document is admitted without any objection, no objection can be raised to its admissibility at any later stage of the case.

(See A I R 1934 Cal. 1059 (sic), A I R 1944 Lah. 1 and A I R 1944 Lah. 9). Mr. Akhtar Mahmud invited my attention to a Supreme Court decision reported in Muhammad Yusuf Khan Khatak v. S. M.. Ayub (PLD1973SC160). In this case the question did not relate to admissibility of a copy of a document but as to proof of the signature under section 67 of the Evidence Act. The majority view was that even if a document is brought on record and exhibited without any objection, it remains on the record as exhibit and faithful copy of the contents of the original, but it cannot be treated as evidence of the original having been signed and written by the person who purports to have written or signed it unless the written or the signature of that person is proved in terms of the mandatory provision of section 67 of the Evidence Act. In the present case the signature of said Muhammad Ahmad, who was incidentally dead by the time the matter came up for evidence, was identified by witness Abdul Hakim who according to his deposition was conversant with his signature. The tenant also identified the signature of Muhammad Ahmad which was not challenged in his cross‑examination.

10. On merits it cannot be over‑looked that the landlord demanded sum of Rs. 250 while the rent was Rs. 115 per month, the tenant was always ready and willing to pay rent at Rs. 100 per month. At its worst there was a bona fide dispute as regards the deduction of Rs. 15 per month for the C tenant would not have invited upon himself an eviction application by with holding Rs. 15 unless he was under a bona fide impression that he had justification for the same. It cannot, therefore, be said that the Courts below were wrong in denying eviction of the tenant on the ground of default in payment of rent.

11. As regards personal use, Mr. A. A. Fazeel, the learned counsel for the tenant contended that the evidence on record did not establish that the landlord requited the shop premises in dispute reasonably for his personal use. He firstly referred me to the landlord's notice dated 3‑1‑1966, under section 13‑A of the Rent Ordinance in which there was no mention that the disputed premises was required by the landlord for his personal use though in his evidence he has stated that he had purchased the shop premises for his personal use. Again, the landlord get his B. Com. degree in the year 1961 and was registered as income‑tax practitioner in January 1962 but did not file the eviction application until May 1966. In this eviction application the ground for personal use appears to have been added as an after though, by addition of paragraph 7. It appears that when the original application was drafted it was in March 1966 but paragraph 7 was added in the margin when the application came to be filed in May 1966. The landlord demanded rent at Rs. 250 per month which be was obviously not entitled to and having so realized it, appears to have thought it convenient to add the ground of personal use. In these circumstances the fact that the shop premises was purchased with the father's funds and though the adjoining shop belonging to the father fell vacant in 1958 but was rented out instead of meeting the allegedly genuine need of the landlord to start his income‑tax practice assumes significance. For reasons aforesaid I am of the view that the landlord failed to make out the case that he reasonably required the shop premises for his personal use.

12. This appeal is, therefore, dismissed with cost.

S. A. H. Appeal dismissed.

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