Case law on inadmissible evidence under council statement .
The fault with the rent receipt (Exhibit-P2) was that it was introduced into evidence through the statement of counsel without the counsel being sworn in as a witness. This procedural lapse made the receipt inadmissible under the Qanun-e-Shahadat Order, 1984, which requires documentary evidence to be supported by a witness who can testify to its authenticity under oath.
A unique point decided in the judgment is the careful scrutiny of the admissibility of evidence, particularly the rent receipt (Exhibit-P2). The court emphasized that the rent receipt was crucial for the case but ruled it inadmissible because it wasn't proven according to the Qanun-e-Shahadat Order, 1984. This highlights the importance of following procedural rules in presenting evidence, which can greatly influence legal outcomes.
HCJDA 38.
Judgment Sheet
LAHORE HIGH COURT
RAWALPINDI BENCH RAWALPINDI
JUDICIAL DEPARTMENT
….
F.A.O. NO.49 of 2017
GHULAM DASTGIR SIDDIQUI and others
Versus
Mst. ELIZBETH and another
JUDGMENT
Date of hearing:
03.06.2024
Appellants by:
Mr. Muhammad Abdul Muqeet
Sh, Advocate.
Respondent No.1 by:
Sh. Usman Ullah Waleem,
Advocate.
Respondent No.2 by:
Nemo.
MIRZA VIQAS RAUF, J. This appeal under Section 24 of
the Cantonments Rent Restriction Act, 1963 (hereinafter referred to
as “Act, 1963”) arises out of order dated 20th September, 2016,
whereby the Additional Rent Controller, Chaklala Cantonment
proceeded to dismiss the ejectment petition, filed by the appellants
seeking eviction of the respondents.
2.
Facts in brief forming background of this appeal are that the
appellants claiming themselves to be the landlords of house
No.342/6, Rafi Road, Tariqabad, Rawalpindi (hereinafter referred to
as “rented premises”) moved a petition under Section 17 of the “Act,
1963” seeking eviction of the respondents on the grounds of personal
bona-fide need, default in payment of rent and damage to the “rented
premises”. The ejectment petition was resisted by the respondents,
who submitted their reply, controverting not only rate of rent but the
grounds of eviction agitated by the appellants. On receipt of reply
from the respondents, the Additional Rent Controller, Chaklala
F.A.O. No.49 of 2017
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Cantonment proceeded to frame necessary issues to the following
effect:
1.
What is the rate of rent? O.P.Parties
2.
Whether the suit property is required by the petitioners in
good faith for their personal requirement? O.P.P.
3.
Whether the respondents are rent defaulters? O.P.P.
4.
Whether the respondents have damaged the suit property
and have impaired its look, utility and have decreased its
market value? O.P.P.
5.
Whether the ejectment petition is not maintainable in view
of preliminary objections raised by the respondents? O.P.R.
6.
Relief.
3.
After framing of above referred issues, Additional Rent
Controller proceeded to record evidence of both the sides and then
dismissed the ejectment petition through impugned order.
4.
Learned counsel for the appellants contended that the
appellants are the landlords of the “rented premises”, and have every
right to get it vacated from the respondents on the grounds
mentioned in the ejectment petition. Learned counsel submitted that
though overwhelming evidence was produced by the appellants in
support of the grounds of eviction but it has been discarded without
assigning any lawful reasoning. Learned counsel argued with
vehemence that the ejectment petition has been dismissed in an
illegal and unlawful manner.
5.
Conversely, learned counsel for respondent No.1 submitted
that the appellants badly failed to prove the grounds of eviction in
the ejectment petition. It is argued with vehemence that the
ejectment petition was rightly dismissed. Needless to mention here
that though due intimation was conveyed to respondent No.2 but she
did not turn up.
6.
Heard. Record perused.
7.
The appellants being the landlords of the rented premises
moved a petition under Section 17 of the “Act, 1963” seeking
eviction of the respondents on three-fold grounds. Firstly; that the
F.A.O. No.49 of 2017
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respondents have committed default in payment of rent w.e.f.
January, 2013, secondly; “rented premises” are required by the
appellants for their personal bona-fide need and thirdly; that the
respondents have caused damage to the “rented premises”. It would
not be out of context to mention here that the rate of rent was
claimed by the appellants as Rs.6000/- per month, which was
seriously controverted by the respondents, while submitting their
written reply wherein they asserted that in fact the rate of rent was
Rs.1,200/- per month, and they have already paid all the due rent. As
already noted hereinabove that from the divergent pleadings of the
parties, multiple issues were framed. It is noticed that the Additional
Rent Controller in the first instance decided issue relating to the rate
of rent and held that the rate of rent is Rs.1,200/- per month. I have
examined the evidence produced by both the sides to this effect and
found no material whatsoever to differ with the findings of the
Additional Rent Controller to this effect.
8.
Issue No.2 relates to personal bona-fide need of the appellants.
To this effect, appellant No.1 appeared as PW.1, however, during his
cross examination he deposed as under:-F.A.O. No.49 of 2017
-3-
respondents have committed default in payment of rent w.e.f.
January, 2013, secondly; “rented premises” are required by the
appellants for their personal bona-fide need and thirdly; that the
respondents have caused damage to the “rented premises”. It would
not be out of context to mention here that the rate of rent was
claimed by the appellants as Rs.6000/- per month, which was
seriously controverted by the respondents, while submitting their
written reply wherein they asserted that in fact the rate of rent was
Rs.1,200/- per month, and they have already paid all the due rent. As
already noted hereinabove that from the divergent pleadings of the
parties, multiple issues were framed. It is noticed that the Additional
Rent Controller in the first instance decided issue relating to the rate
of rent and held that the rate of rent is Rs.1,200/- per month. I have
examined the evidence produced by both the sides to this effect and
found no material whatsoever to differ with the findings of the
Additional Rent Controller to this effect.
8.
Issue No.2 relates to personal bona-fide need of the appellants.
To this effect, appellant No.1 appeared as PW.1, however, during his
cross examination he deposed as under:-
F.A.O. No.49 of 2017
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It is thus an admitted position on the record that previously, the
appellants filed various ejectment petitions against their tenants on
the same ground and obtained possession in terms of the eviction
order.
9.
There is no cavil that it is prerogative of the landlord(s) to
choose any of his/their property who in his/their estimation would
meet his/their requirements but at the same time, ground of personal
bona-fide need cannot be made basis for eviction of the tenant(s)
when it is established on the record that the landlord(s) has/have
already got vacated the other properties from his/their tenant(s) on
the same ground in the near future. It is also established on the
record that appellants have shifted their residence from Laal Kurti to
Tulsa Chowk Lalazar just before filing of ejectment petition and they
did not plead that the accommodation where they are residing is
insufficient for their need. The appellants thus failed to prove that the
“rented promises” is required for their personal bona-fide need.
10. Adverting to the ground of default in payment of rent, it is
noticed that to this effect, issue No.3 was framed by the Additional
Rent Controller. While appearing as PW.1, the appellant No.1
categorically asserted that the respondents have defaulted in payment
of rent w.e.f. January, 2013. Though this assertion is refuted by the
respondents in their reply but they have failed to discharge the onus.
It is trite law that when the landlord(s) seek(s) eviction of his/their
tenant(s) on the ground of default in payment of rent, he/they
has/have to only assert the factum of default supported by affidavit
and the onus then would shift upon the tenant(s) to prove that
he/they has/have not defaulted in payment of rent. It is noticed that
in order to rebut the stance of the appellants, respondent No1
appeared as R.W.1 as sole witness in support thereof. In addition rent
receipt (Exhibit-P2) was made part of record.
11. Adverting to the validity and authenticity of receipt of rent
(Exhibit-P2) it is noticed that same was brought on record through
the statement of counsel and it is heavily relied by the Additional
F.A.O. No.49 of 2017
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Rent Controller, while deciding the issue against the appellants. In
the case of Mst. AKHTAR SULTANA versus Major Retd. MUZAFFAR KHAN
MALIK through his legal heirs and others (PLD 2021 Supreme Court 715) the
Supreme Court of Pakistan outlined the true import of the relevant
provisions of the Qanun-e-Shahadat Order, 1984 dealing with the
relevancy and admissibility of the documentary evidence. The
relevant extract from the same is reproduced below : -
“(i) Relevant and admissible evidence
10. The Qanun-e-Shahadat, 1984 ("Qanun-e-Shahadat")
governs the law of evidence in our country. The expression
"relevancy" and "admissibility" have their own distinct legal
implications under the Qanun-e-Shahadat as, more often than
not, facts which are relevant may not be admissible. On the one
hand, a fact is "relevant" if it is logically probative or
disprobative of the fact-in-issue, which requires proof. On the
other hand, a fact is "admissible" if it is relevant and not
excluded by any exclusionary provision, express or implied.
What is to be understood is that unlike "relevance", which is
factual and determined solely by reference to the logical
relationship between the fact claimed to be relevant and the
fact-in-issue, "admissibility" is a matter of law. Thus, a
"relevant" fact would be "admissible" unless it is excluded
from being admitted, or is required to be proved in a particular
mode(s) before it can be admitted as evidence, by the
provisions of the Qanun-e-Shahadat. As far as the latter is
concerned, and that too relating to documents, admissibility is
of two types: (i) admissible subject to proof, and (ii) admissible
per se, that is, when the document is admitted in evidence
without requiring proof.
(ii) Mode of proof
11. Mode of proof is the procedure by which the "relevant" and
"admissible" facts have to be proved, the manner whereof has
been prescribed in Articles 70-89 of the Qanun-e-Shahadat. In
other words, a "relevant" and "admissible" fact is admitted as a
piece of evidence, only when the same has been proved by the
party asserting the same. In this regard, the foundational
principle governing proof of contents of documents is that the
same are to be proved by producing "primary evidence" or
"secondary evidence". The latter is only permissible in certain
prescribed circumstances, which have been expressly provided
in the Qanun-e-Shahadat.
12. What is important to note is that, as a general principle, an
objection as to inadmissibility of a document can be raised at
any stage of the case, even if it had not been taken when the
document was tendered in evidence. However, the objection as
to the mode of proving contents of a document or its execution
is to be taken, when a particular mode is adopted by the party
at the evidence-recording stage during trial. The latter kind of
objection cannot be allowed to be raised, for the first time, at
any subsequent stage. This principle is based on the rule of fair
play. As if the objection regarding the mode of proof adopted
has been taken at the appropriate stage, it would have enabled
the party tendering the evidence to cure the defect and resort to
other mode of proof. The omission to object at the appropriate
stage becomes fatal because, by his failure, the party entitled to
F.A.O. No.49 of 2017
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object allows the party tendering the evidence to act on
assumption that he has no objection about the mode of proof
adopted.
13. It is also important to note that the objection as to "mode of
proof" should not be confused with the objection of "absence
of proof". Absence of proof goes to the very root of
admissibility of the document as a piece of evidence; therefore,
this objection can be raised at any stage, as the first proviso to
Article 161 of the Qanun-e-Shahadat commands that "the
judgment must be based upon facts declared by this Order to be
relevant, and duly proved". In other words, when the Qanun-eShahadat provides several modes of proving a relevant fact and
a party adopts a particular mode that is permissible only in
certain circumstances, the failure to take objection when that
mode is adopted, estops the opposing party to raise, at a
subsequent stage, the objection to the mode of proof adopted.
However, when the Qanun-e-Shahadat provides only one mode
of proving a relevant fact and that mode is not adopted, or
when it provides several modes of proving a relevant fact and
none of them is adopted, such a case falls within the purview of
"absence of proof", and not "mode of proof"; therefore, the
objection thereto can be taken at any stage, even if it has not
earlier been taken.
(iii) Evidentiary value
14. Once a fact crosses the threshold of "relevancy",
"admissibility" and "proof", as mandated under the provisions
of the Qanun-e-Shahadat, would it be said to be admitted, for
its evidentiary value to be adjudged by the trial court. The
evidentiary value or in other words, weight of evidence, is
actually a qualitative assessment made by the trial judge of the
probative value of the proved fact. Unlike "admissibility", the
evidentiary value of a piece of evidence cannot be determined
by fixed rules, since it depends mainly on common sense, logic
and experience and is determined by the trial judge, keeping in
view the peculiarities of each case.”
12. To the above effect guidance can also be sought from
MANZOOR HUSSAIN (deceased) through L.Rs. versus MISRI KHAN (PLD
2020 Supreme Court 749) wherein the Supreme Court of Pakistan held
as under :-
“4.
Before parting with this case we would like to
comment on a related matter. Copies of the
acknowledgement receipt (exhibit P4), aks shajarah kishtwar
(exhibit P2), registered post receipt (exhibit P3), mutation
(exhibit P5) and jamabandi for the year 2000-2001 (exhibit
P6) were produced and exhibited by the pre-emptor's
counsel, but without him testifying. We have noted that
copies of documents, having no concern with counsel, are
often tendered in evidence through a simple statement of
counsel but without administering an oath to him and
without him testifying, especially in the province of Punjab.
Ordinarily, documents are produced through a witness who
testifies on oath and who may be cross-examined by the
other side. However, there are exceptions with regard to
facts which need not be proved; these are those which the
Court will take judicial notice of under Article 111 of the
Qanun-e-Shahadat Order, 1984 and are mentioned in Article
F.A.O. No.49 of 2017
-7-
112, and facts which are admitted (Article 113, Qanun-eShahadat Order, 1984).
5.
The acknowledgement receipt was stated to have
been signed when the envelope said to contain the Talb-iIshhad notice was purportedly received by the respondent.
However, the respondent had not admitted receipt of the said
notice, therefore, the acknowledgement receipt (exhibit P4)
could not be stated to be an admitted document and did not
constitute an admitted fact. Therefore, delivery to and/or
receipt by the respondent of the notice had to be established.
We also note that in this case the said counsel had furnished
copies of all five documents (exhibits P2 to P6), which were
produced by him. The Qanun-e-Shahadat Order, 1984
explicitly sets out the documents which must be produced in
original, which in the present case would be the registered
post receipt (exhibit P3) and acknowledgment receipt
(exhibit P4), and photo copies, that is secondary evidence,
could only be produced as permitted; and as regards extracts
of official records, that is, the aks shajarah kishtwar (exhibit
P2), mutation (exhibit P5) and jamabandi (exhibit P6),
certified copies thereof had to be tendered in evidence. In
not observing the rules of evidence unnecessary
complications for litigants are created, which may result in
avoidable adverse orders or in the case being remanded on
such score, which would be avoided by abiding by the
Qanun-e-Shahadat Order, 1984.”
The above principles were even reiterated by this Court in the case of
NATIONAL COMMAND AUTHORITY through D.G. SPD, Rawalpindi and
others versus ZAHOOR AZAM and others (2024 CLC 1).
13. Though rigors of the Qanun-e-Shahadat Order, 1984 cannot be
pressed into service with full force in the proceedings before the
Rent Controller but cardinal principles regulating the procedure for
recording of evidence cannot be kept aside totally.
14. The Additional Rent Controller founded his conclusion
exclusively relying upon rent receipt (Exhibit-P2) which was not
admissible at all and was only an anecdotal piece of evidence.
15. From the discussion made hereinabove, I am of the considered
view that the appellants remained successful in proving that the
respondents committed default in payment of rent. It is an oft
repeated principle of law that if the landlord(s) plead(s) multiple
grounds for eviction of the tenant(s) and if he/they fail(s) to prove
one or more of such ground, the eviction order can be rested on any
one of the recognized grounds which the landlord(s) ultimately
succeeded to establish.
F.A.O. No.49 of 2017
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16. For the foregoing reasons, this appeal is allowed and while
setting aside the impugned order dated 20
th September, 2016 the
ejectment petition is accepted. The respondents are directed to hand
over the vacant possession of the “rented premises” to the appellants
within thirty (30) days from today with no order as to costs. Record
of the Additional Rent Controller, Chaklala Cantonment be remitted
back.
(MIRZA VIQAS RAUF)
JUDGE
APPROVED FOR REPORTING
JUDGE
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