' SYED HASAN AZHAR RIZVI, J.--- This first rent appeal is directed against the judgment dated 29-11- 2011 passed by the learned Additional Controller of Rents, Karachi-Cantonment, allowing Rent Case No,4/2010 filed by the present respondent/landlady (hereinafter referred as respondent) seeking ejectment of Lt. Col. (Retd.) Muhammad Younus (hereinafter referred as appellant) from the first floor of the premises/building bearing No,37-D, Askari-III, School Road, Karachi Cantonment, Karachi, (hereinafter referred as demised premises) on the ground of her personal use and occupation.
2. The learned Additional Controller of Rents issued notice to the appellant who filed his written statement denying the Claim of personal need of the respondent/landlady in respect of the demised premises. However, he admitted that the demised premises was let out to him by the respondent on 1st April, 2009. It was denied that the tenancy was for 11 months only. The rate of rent being Rs,38,000/- per month was not disputed. However, it was further stated that a substantial amount as "Security Deposit" was also paid to the respondent.
3. Respondent/landlady filed her affidavit-in-evidence and her examination-in-chief and cross- examination was recorded on 30-11-2010. Appellant also filed his affidavit-in-evidence and his cross-examination was recorded on 21-6-2011. Thereafter the learned Additional Controller of Rents framed the following points for determination:--- "(1) Whether the case premise is required by the applicant in good faith for her personal use and occupation?
(2) Whether the tenancy in question does continue under the tenancy agreement dated 1-4-2009 or the same has been expired? .
(3) Whether the above ejectment application filed by the applicant is maintainable, has not been filed with mala fide intention and the applicant has not come to this Court with unclean hands?
(3-A) Whether the agreement of 04 years has been signed by the applicant?
(4) Whether the tenancy agreement dated 1-4-2009 executed by the applicant with the opponent cannot be extended, renewed for another period?"
4. After hearing the learned counsel for .The parties, the learned Additional Controller of Rents allowed the rent case vide judgment dated 29-11-2011 and directed the opponent/appellant to vacate and hand over the demised premises to the applicant/respondent within a period of 30 days of the passing of the order. It is against the said order that the appellant has filed this appeal.
5. I have heard the learned counsel for the parties and gone through the material available on record with their assistance.
6. Mr. Muhammad Sadiq Hidayatullah, learned counsel for the appellant 'has contended that the learned Additional Controller of Rents has not only erred in law, but misread the evidence while deciding the issues against the appellant, as the respondent in her cross-examination had admitted the execution of agreement dated 1-4-2009 which was for a period of four years. He contended that even the period of eleven months have not yet been expired as, the respondent filed the ejectment case against the appellant on 25-2-2010 itself sufficient to negate the assertion of the respondent/landlady and as such the observation of the trial Court that the said agreement was not acted upon is incorrect. He, therefore, vehemently urged that it is a clear case of misreading and non-reading of the evidence by the learned trial Court.
7. The learned counsel for the appellant has also contended that the finding of the learned Rent Controller that the rent agreement was not admissible in evidence because it was not registered is not based on proper appreciation of law as under the Stamp Act document can be impounded but further terms and penalty shall be imposed and the terms of contract are to be acted upon. He has further argued that the learned Controller of Rents has failed to consider that the affidavit-in- evidence filed by the respondent/landlady is not maintainable, because the same was not verified on oath in the Court before the officer authorized by Court to administer oath. Therefore, the judgment passed by the learned trial Court is liable to be set aside. Learned counsel for the appellant in support of his submissions has placed reliance upon the cases of ADAM LIMITED, KARACHI v. ARIF (1998 CLC 989), OBAIDULLAH KHAN v. UMER HAYAT KHAN AND ANOTHER (2011 YLR 1731), JAFFAR ALI v. MUHAMMAD TUFAIL (1991 MLD 48), NAZIR AHMED v. DISTRICT COUNCIL (2003 YLR 2052) and MRS. ZARINA "KHAWAJA v. AGHA MAHBOOB SHAH (PLD 1988 SC 190).
8. Conversely, Mr. Waqar Muhammad Khan Lodhi, learned counsel for the respondent strongly supported the view taken by the learned Additional Controller of Rents in his impugned order.
Making reference to the impugned order he contended that the learned trial Court has carefully examined all the relevant facts stated in the application and its supporting affidavit so also the relevant law on the point and has rightly recorded his conclusion for ejectment of the appellant from the demised premises:
9. The learned counsel for the respondent while refuting the arguments of the learned counsel for the appellant has stated that there exists no agreement for four years between the landlady and tenant as deposed by the respondent in his evidence, however, she admitted the tenancy of 11 months and as such, the burden of proof was upon the appellant/tenant to prove the same but there is nothing in the evidence to show that the tenancy agreement was for four years. He further contended that the affidavit-in-evidence filed by landlady/respondent is duly on oath and is fully in accordance with the requirements of law. Lastly, he argued that there is nothing wrong with the findings of the learned trial Court so far allowing the ejectment application is concerned. Learned counsel for the respondent in support of his case has relied upon the cases of ISLAMUDDIN AND OTHERS v. GHULAM MUHAMMAD AND OTHERS (PLD 2004 SC 633), MUHAMMAD MUJIBUR RAHMAN SIDDIQUI v. ABDUL BARI AND 3 OTHERS (PLD 1981 Karachi 537), Messrs F.K. IRANI & CO. v. BEGUM FEROZE (1996 SCMR 1178), MEHDI NASIR RIZVI v. MUHAMMAD USMAN SIDDIQUI (2000 SCMR 1613), MUHAMMAD MOHSIN MALIK v. MST. QAMAR JEHAN AND 2 OTHERS (2009 YLR 289), MRS. TAHIRA DILAWAR ALI KHAN v.
MST. SYEDA KANEEZ SUGHRA and 2 OTHERS (PLD 2007 Karachi 50), HABIB BANK LIMITED v. DR. MUNAWAR ALI SIDDIQUI (1991 SCMR 1185), M.K. MUHAMMAD AND ANOTHER v. MUHAMMAD ABU BAKAR (1993 SCMR 200) and MST. SALAMAN v. BASHIR AHMED (2007 YLR 2440).
10. I have considered the arguments of both the learned counsel for the parties and has gone through the case-law cited at the bar.
11. Admittedly there is no dispute regarding relationship between the landlady and tenant. There is also no dispute regarding payment of rent and/or default therein. The crux of the arguments of the learned, counsel for the .Appellant was that the affidavit-in-evidence filed by the landlady was not sworn in the Court or before the authorized officer of the Court. To elaborate his submissions on the above point learned counsel has relied upon the case-law referred to above.
12. In the first case of Adam Limited, Karachi (Supra), the learned Single Judge of this Court held that "the examination-in-chief of the parties through their affidavit-in-evidence were signed before Oath Commissioner. Normally, the affidavits for immediate use in Court are to be sworn in either in the Court or before the officer authorized by Court to administer oath. The deposition/cross-examination was recorded without administration of Oath. The record reveals that the parties were not recalled nor reaffirmed, as such legal evidence was not recorded."
' In the second case of Obaidullah Khan (Supra), the learned Single Judge of Peshawar High Court held that "Omission to administer oath to a witness, would amount to an illegality which could not be cured."
' In the third case of Jaffar Ali (Supra), the Hon'ble High Court of Lahore held that "record showed that judgment and decree of Appellate Court was based on the statement of a person recorded by the Court on solemn affirmation. Amendment having already been made in the relevant provision of Oaths Act and oath having been prescribed by the High Court, Appellate Court could not have recorded statement of witness on solemn affirmation was thus inadmissible and could not have been made basis of judgment and decree. Judgment and decree of Court below was set aside and case was remanded for decision of appeal in accordance with law."
' In the last case of Nazir Ahmed (Supra), the learned Single Judge of Lahore High Court held that "evidence recorded by the trial Court without oath is irrelevant and is not admissible in evidence."
13. I have carefully gone through the above cited cases and have no hesitation to hold that the same have no relevance to the case in hand and have altogether on different footings. The only case which has similarity is the case of Adam Limited, Karachi, wherein the affidavit-in-evidence was signed before the Oath Commissioner and cross-examination was recorded without administration of Oath. But in the present case the landlady signed her affidavit-in-evidence before the Oath Commissioner and also appeared in the witness-box for recording of her examination-in-chief, which was certainly recorded after taking Oath and thereafter on the same day cross-examination was recorded. Therefore, the submission of the learned counsel for the appellant that the evidence recorded is not admissible and an illegality on the face of record is devoid of truth because mere omission to take oath would not invalidate any proceeding or render the evidence inadmissible and at the most it can be treated as technical irregularity, which is always curable. Section 13 of the Oaths Act, 1873 is only one of the many instances indicating the settled policy of the Legislature to prevent justice being defeated by a A technical irregularity. It maintains that the legal obligation of a witness to speak the truth, while at the same time it provides against the possible failure of justice through a technical irregularity. For ready reference section 13 of the Oaths Act is reproduced below:--- "(13) Proceedings and evidence not invalidated by omission of oath or irregularity. No omission to take any oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever in the form in which anyone of them is administered, shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth."
' Indeed, certain assertions made by appellant in his affidavit-in-evidence filed before the trial Court that respondent apart from the demised premises have other properties, but has failed to produce any document to show that the landlady is owner of other properties. The landlady in her cross-examination has categorically stated that she has no other property in her name except the demised premises, which is required by her for her personal bona fide requirement. It is settled principle of law that even if the respondent owned certain other properties at other locations, she was not required to decide the suitability of her use and occupation at the dictates of appellant or anybody else, as it was her absolute choice and prerogative.
' Under the circumstances, I am of the view that on an overall assessment of evidence the trial Court was justified in ordering the eviction of the appellant from the demised premises and its findings are not open to interfere through this appeal. Resultantly, the appeal is dismissed with no order as to cost along with listed application. Interim order passed on 21-3-2012 is hereby vacated.