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(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑

‑‑‑Ss. 13 & 15‑‑Civil Procedure Code (V of 1908), 0. XIII, Rr. 4 e 5‑‑Strict observance of provisions of 0. XIII, Rr. 4 & 5, C.P.C. in respect of documents admitted and exhibited in evidence before Rent Controller is not required and non‑observance of such provisions would not vitiate his order‑‑Appellate Authority in appeal against order of Rent Controller remanding case to Rent Controller on mere ground that documents admitted in evidence were not duly endorsed‑ Held: remand in case was on hyper-technical ground tending to delay disposal of rent cases requiring expeditious disposal‑‑Order of Appellate Authority set aside and appeal directed to be disposed of expeditiously by Appellate Authority seized of appeal.

(b) Civil Procedure Code (V of 1908)‑‑

‑‑‑0. XIII, Rr. 4 & 5‑‑Admissibility of documents‑‑Failure to object to‑‑Objection to formal proof of document not taken at earliest stage cannot be taken subsequently and certainly not at appellate stage.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑

‑‑‑Ss. 13 & 15‑‑Civil Procedure Code (V of 1908)‑‑Procedure‑‑Civil Procedure Code is not strictly applicable to proceedings under the Rent Restriction Ordinance, 1959.

Malik Muhammad Nawaz for Petitioner. Amir Alam Khan for Respondent No. 1. Date of hearing: 31st May, 1987.

By this order I propose to dispose of Writ Petition Nos. 4919, 5310, 5311, 5312, 5313 and 5314 of 19.84 as common questions of law and facts are involved therein.

2. Muhammad Sultan petitioner herein filed petitions under section 13 of the Rent Restriction Ordinance, 1959 seeking ejectment of the contesting respondents (herein after referred to as respondents) from the disputed property on various grounds, including default in payment of rent. The ejectment petitions were contested. The relationship of landlord and tenant between the parties was denied. The learned Rent Controller framed preliminary issue to determine the question as to whether there existed relationship of landlord and tenant between the parties. He recorded evidence led by the parties and vide order dated 9‑10‑1983 directed ejectment of the respondents from the disputed premises.

On appeals preferred by the respondents the learned Additional District Judge, Lahore vide impugned orders dated 2‑10‑1984 set aside the ejectment orders and remanded the cases to the learned Rent Controller for fresh decision.

Aggrieved by the afore‑said orders Muhammad Sultan petitioner by means of these Constitutional petitions has challenged the validity of the impugned orders.

3. Learned counsel for the petitioners contended that strict non‑observance of the provisions of Order XII I , Rules 4 and 5 C . P . C . in respect of the documents admitted and exhibited in evidence, by the learned Rent Controrller, could not vitiate his orders because Civil Procedure Code is not strictly applicable to the proceedings before the Rent Controller. It was further contended that the learned Additional District Judge wrongly relied on Malik Murid Ahmad v. Faiz Muhammad 1982 C L C 1949 (Lahore), and remanded the cases to learned Rent Controller because the above cited case is distinguishable and not applicable to proceedings under the Rent Restriction Ordinance, 1959.

4. Learned counsel appearing on behalf of the contesting respondents on the contrary maintained that the procedure laid down under Order XIII, Rule 4, C.P.C. is exhaustive and could not be overlooked. It was also submitted that if the procedure prescribed is not followed then there is no necessity of enacting the procedure for doing anything. It was next argued that these Constitutional petitions are directed against orders of remand as such are not maintainable.

5. The learned Additional District Judge remanded the cases to the Rent Controller, only because the documents admitted into evidence were not duly endorsed as required under Order XIII Rule 4, C.P.C., otherwise, the documents were specifically numbered and signed by the Presiding Officer and created no confusion as to which of them or portions thereof were relied upon by the Rent Controller.

Undoubtedly Civil Procedure Code is not strictly applicable to) proceedings under the Rent Restriction Ordinance, 1959. The learned C Additional District Judge acting as an appellate authority and harbouring under misconception or erroneous assumption of jurisdiction, remanded the cases to Rent Controller on hyper‑technical grounds tending to delay the disposal of rent cases sought to be decided expeditiously.

Malik Murid Ahmad's case relied upon by the learned Additional District Judge arose out of suit in which documents admitted into evidence were not endorsed by the trial Court. Relying on Sadiq Hussain Khan v. Hashim Ali Khan and others A I R 1916 PC 27 and Imam‑ud‑Din and another v. Sri Ram Perbhu Dial A I R 1928 Lah. 142, it was held that as the evidence occupies main position in a case, therefore, the manner of receiving it, contrary to the procedure laid down under Order XIII Rules 4 and 5, C.P.C. could not be overlooked.

It appears that Hakim Khan v. Aurangzeb and another PL D 1975 Lah. 1170 decided by this Court wherein distinction drawn in respect of the afore‑said cases, was not brought to the notice of the learned Judge.

In Hakim Khan's case it was held:

"Even otherwise, according to law the mere non‑endorsement by the Judge concerned, of the documents, does not render it inadmissible. Reliance in this respect can be made on Sultan Ahmad Chaudhry v. Mustafiz‑ur‑Rehman P L D 1967 Dacca 216. The points, which the appellant wanted to bring home by the production of his documents have been discussed in detail by the learned trial Court while deciding issues 1 and 7. The main purport of the document was to prove that since the possession was not delivered to the respondents, therefore, the gift made by the appellant was not valid. This aspect of the case has been discussed and adjudicated upon by the learned trial Court under the said issues. If the documents in question had not even been initialled or the provision as contained in Order XIII, Rule 4, C.P.C. had not been followed so strictly it would never have advanced the cause of the appellant so far as the admissibility or otherwise of the documents in evidence or the adjudication of the points involved by the trial Court are concerned, as such an omission would not have caused any prejudice against his interest. The learned counsel while arguing this objection has relied upon Sadik Hussain Khan v. Hasham Ali Khan and others A I R 1916 PC 27 and Imamuddin and another v. Sri Ram Perbhu Dial A I R 1928 Lah. 142. In the former case their Lordships of the Privy Council, no doubt, deprecated the practice of not making endorsement on the document brought on record and made adverse remarks against the Court concerned in not following the relevant provision of law but they did not set aside the judgment in question on that ground. However, they observed that in case such practice was found to have not been followed in future then their Lordships would refuse to read or permit to be used any document not endorsed in the manner, required by law. It means that the Privy Council gave a sort of warning to the trial Courts for observing the procedure as laid down in the provision of law as referred to above. The circumstances of the case as discussed in AIR 1928 Lah. 142 do not exist in the present case. It was found impossible by the High Court as to which of the documents or portions thereof had been relied upon by the trial Court and for that reason the case was remanded. In the present case this is not the position. As mentioned above, the points which were likely to be brought to the notice of the Court by the production of the documents have been discussed in detail by the trial Court in its judgment. According to law in spite of an omission on the part of the tiral Court in strictly following the procedure as laid down in Order XIII,. Rule 4, C.P.C. the documents placed on record can be looked into and considered while deciding the case. Moreover if any such omission has been committed by the Court then it is not due to the fault of the party concerned. In the circumstances there is no reason as to why such party should be penalized for the omission of the Court. Reliance in this respect can be placed upon Mohammed Yousuf Khan Khattak v. S.M. Ayub P L D 1972 Pesh. 175.

It is also settled law that if objection to the formal proof of the documents has not been taken at the earliest time, it cannot be taken subsequently and certainly not at the appellate stage. The impunged judgment before this Court does not show that any such objection was raised by the appellant before the trial Court during the arguments, nor the same was raised even in the memorandum of appeal before this Court. As such it can be deemed under the law that the documents were duly admitted in evidence. There is nothing in law to prevent this Court from looking into and considering the documents even if they are not exhibited provided they have been placed on record by the parties concerned."

The documents in question which were admitted into evidence without objection, those were duly numbered and signed by the Presiding Officer, and there was no ambiguity regarding their identity. It is significant to mention that the respondents neither before the Rent Controller nor before the learned Additional District Judge raised objection in writing regarding the admissibility of the documents into evidence. As observed hereinbefore the Civil Procedure Code being not stricto senso applicable to proceedings under the Rent Restriction) Ordinance, 1959, the learned Additional District Judge erroneously assumed strict applicability thereof and acted contrary to law. Such B an action of Ch. Masood Akhtar Khan the learned Additional District Judge, Lahore in remanding the cases to the Rent Controller, on irrelevant technical ground, if approved would not only delay the disposal of such cases but frustrate the very object of speedy disposal of rent cases.

6. For the foregoing reasons the impugned orders passed by the learned Additional District Judge, Lahore are delcared to have been C passed without lawful authority and of no legal consequence. The learned Additional District Judge seized of the appeals shall decide the same expeditiously.

7. The upshot of the above discussion is that

these petitions are allowed with costs.

K . B . A . / M‑274/ L ‑‑‑ Petition accepted.

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