' This second appeal from Order is directed against the judgment dated 3rd May, 1979 passed by the learned Additional District Judge, Lahore. The facts necessary for the purposes of this appeal briefly stated are that the respondent Mrs. Parveen Anwar Afridi (legal guardian of Jamil Ahmad her son) instituted a petition for ejectment of the respondent from the premises bearing No, 6-K (annexure) Gulberg, II, Lahore, under section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959, on the ground of requirement of the premises in dispute bona fide for personal use and occupation and damage to the property in dispute. It was asserted in the ejectment petition that the aforementioned premises belong to Jamil Ahmad, a minor son of the respondent and as such the petition was instituted through the legal guardian, that initially the premises was rented out to the appellant in 1971 and thereafter he continued to remain tenant on the basis of rent deed dated 12th January, 1974 ; that the appellant violated the conditions of the tenancy by making alterations on a massive scale and thereby caused damage to the property and changed its complexion ; that he also got standing trees cut thereby diminishing the value of the property ; that the respondent needed the premises bona fide for residence of her minor son, the owner of the property and, therefore, served a notice upon the appellant to vacate the premises and on his failure to do so the petition for ejectment was filed.
2. The appellant contested this petition on merits and also raised certain preliminary objections inter alia that the petition has been filed mala fide with the intention to increase rent and that the premises having not been used for residential purposes cannot be claimed for personal use as residence. On merits the appellant denied the requirement of the premises for residence of the minor and asserted that he was in England.
3. On the divergent pleadings of the parties following 8 issues were framed :-
(1) Whether the replication is irregular, if so, its effect ? AOR
(2) Whether the petitioner requires the premises bona fide for personal use ? OPA
(3) Whether the respondent has damaged the property in dispute, if so, its affect ? OPA
(4) Whether the Agreement dated 12th January, 1974 is void ? OPR
(5) Whether the disputed premises cannot be used for residential purposes ? OPR
(6) Whether the petitioner has no cause of action ? OPR
(7) Whether the Agreement dated 12th January, 1972 was void ? OPA
(8) Relief.
' However, by order dated 5th January, 1978, issues Nos. I, 4, 6 and 7 were struck off as unnecessary.
This order was passed with the consent of both the learned counsel for the parties. The only issues, therefore, that were left in the field were Nos. 2, 3, 5 and 8 i. e. Relating to bona fide requirement of the premises for personal use of the respondent ; damage to the property in dispute ; as to whether disputed premises could be got vacated for residential purposes and the relief.
4. The learned Rent Controller by his order dated 14th December, 1978 found issues Nos. 2 and 5 in favour of the respondent whilst issue No, 3 was found in favour of the appellant. As a result of his finding on issues No, 2 and 5 the Rent Controller accepted the petition for ejectment filed by the respondent and ordered ejectment of the appellant and directed that the order shall take effect after one month from the date of passing of the same leaving the parties to bear their own costs.
6. Feeling dissatisfied with this order of the Rent Controller, the appellant preferred an appeal before the learned Additional District Judge, Lahore who upheld the findings of the Rent Controller on issues Nos. 2 and 3, but reversed the findings on issue No, 3 and decided this issue also in favour of the respondent. Resultantly he dismissed the appeal by his judgment dated 3rd May, 1979 with no order as to costs and directed the appellant to vacate the premises on or before the 1st of June, 1979.
6. Still dissatisfied the appellant has come up in this second appeal.
7. The learned counsel for the respondent raised a preliminary objection that the appeal is not competent because the grounds taken in the Memo of appeal do not specifically question the findings of fact on account of misreading or non-reading of the record and that no point of law is involved otherwise also. He elaborating his contention submitted that issues Nos. 2, 3 and 5 which remained in field, all relate to question of fact and there being concurrent findings thereon, the same could not be called in question in second in appeal.
8. He further submitted that the only grounds taken in the Memo. Of Appeal are (a) that the building had been converted to a non-residential premises and as such could not be got vacated for personal use of respondent (b); that Jamil Ahmed the owner of the property has not been produced as a witness and as such bona fide requirement not established; (c) that the discretion should have been exercised by the Rent Controller in favour of the tenant ; and (d), that the evidence has not been property appreciated. All the above grounds the learned counsel for the respondent argued cannot be made a ground of attack in second appeal, as those being relateable to questions of fact stood conclusively d decided by the Courts below. He relied on Abdul Majid and others v. Khalil (I), Sheikh Muhammad Akhlas and others v. Muhammad Ismail (2), Haji Peer Bakhsh v. Mst. Almas Begi (3) and Mr. Athar Salim v. Muhammad Noor Khan (4) to contend that findings of fact howsoever erroneous those might be cannot be questioned in a second appeal. The learned counsel also argued that since the second appeal in a rent case has also to be governed as an appeal before this Court under section 100 of the Code of Civil Procedure, the appellant cannot be allowed to urge anything which he has not set up in the Memo of Appeal as provided by Order XLI, rule 2, C. P. C. He contended that the appellant having not taken the ground of misreading or non-reading in the memo. Cannot now be allowed to urge in this regard even if there be a misreading or non-reading.
' On the other hand, the learned counsel for the appellant submitted that the preliminary objection raised is fallacious. He submitted that the findings on issue No, 5 have been directly challenged and this issue being about the user of the disputed property could be called in question if the findings were based on misreading and the ground in regard thereto can be spelt out from grounds 8 (a), (b) (c) (d) and (e) of the Memo. Of Appeal. He further submitted that from grounds ( f )(i) (v) (vi) and (viii) it can be clearly seen that finding on issue No, 2 has been challenged on the basis of misreading.
9. It was next argued by the learned counsel for the appellant that even if ground of misreading or non-reading as to the findings of the Courts below, is not specifically set forth, but the same floats on the record and can be detected by just a glance, the High Court can scrutinize the findings in a second appeal. He also argued that permission can be granted for urging any point not taken up in the grounds of appeal even during the hearing on which point Order XLI, rule 2 itself is clear. He relied on Mst. Bibi Jan v. Habib Khan and another (5) to submit that cases should not be allowed to be defeated merely on technicalities. It was also urged by the learned counsel for the appellant that the ground of misreading was specifically urged at the time of admission of the appeal in the presence of the respondent and no objection was raised, there against. He relied on Tilya Ram Khushhal Ram v. Ginsham Das and others (6) to contend that even if it be assumed that point has not been taken in the memo, but it having been raised at the preliminary hearing can now be considered.
(1) PLD 1955 FC 380 (2) PLD 1963 SC 466
(3) PLD 1967 Pesh. 49 (4) 1974 SCMR 484
(5) PLD 1975 SC 298 (6) AIR 1934 Pesh. 3
10. The learned counsel for the appellant also argued that as a matter of abundant precaution the appellant has filed an application (C. M. No, 6859-C/79), for permission to be allowed to raise the ground of misreading/non-reading specifically and as such the appellant should otherwise be allowed to urge this ground.
11. Having considered the controversy involved on the point 1 am of the view that the preliminary objection raised cannot be sustained. Apart from the position that the grounds set forth in the Memo of Appeal impliedly indicate the challenge to the orders of the Courts below inter alia on the ground of misreading and non-reading of record, the appeal having been admitted on this contention and a specific application also having been made to allow the ground to be taken, it appears in the interest of justice that the appellant be allowed to take the same and argue thereon. It has been correctly pointed out that the respondent was present at the time of admission of the appeal and raised no objection to the admission of appeal on the ground of misreading. I respectfully agree with the principle laid down in AIR 1934 Pesh. 3 and hold that respondent cannot now be allowed to raise the objection even if ground, may not have been specifically set forth. Otherwise also Order XLI., rule 2, C. P. C. Empowers the Court to allow to urge any ground which has not been set forth in the memo. The policy of law has been and should always be that the causes should not be allowed to be defeated only on technicalities of this nature. It may be pointed out that in the grounds of appeal more emphasis appears to have been laid on the beautifying of language and in this process the requirement of Order XL, rule 2, C. P. C.
Appears to have been ignored. But then such an omission should not be hurdle in the way of a party so as to defeat his cause.
12. As regards the contention of the learned counsel for the respondent that a second appeal is not competent so as to challenge concurrent findings of fact, I do not think there can be any cajole with B this proposition, but then this by itself would not be a preliminary objection, and of necessity the case will have to be decided after decision on the merits of the case. The preliminary objection, therefore, is not sustainable and is overruled. This also disposes of C. M. No, 6859-C 1979.
13. On the merits of the case the learned counsel for the appellant contended, firstly, that the findings of the learned Additional District Judge, as also of the learned Rent Controller on issue No, 5 that the property had been leased out inter alia for residential purposes are erroneous. Referring to the document marked 'A' the learned counsel submitted that the premises was given for business purposes and that there is no evidence on record to show that initially when the appellant had become a tenant, it was being used as residential premises. He referred to evidence of R. W. 1, R. W. 5, R. W. 7 and of the respondent as R. W. 11 to submit that the same proved the non-residential character of the disputed premises. The learned counsel submitted that the inference drawn by the two Courts below that the premises was also used for residential purposes is merely conjectural in that it has neither been admitted nor otherwise established on record.
14. The learned counsel also argued that the withholding of production of original document marked 'A' by the respondent, would amount to proving of the copy as correct which shows that the property was let out for commercial purposes only. It was next submitted by him that the respondent herself, did not state that the premises was being used as residence which fact has also not been considered by the Courts below. Relying on Gui Afzal Khan v. Muhammad Hanif Arif (1), the learned counsel argued that the landlord requiring non-residential building for residential purposes cannot obtain ejectment thereof on the ground of personal need. Reliance was also placed on Jamil Ahmad v. Mst. Sultana Jahan Begum (2) to support the above contention.
15. As regards issue No, 2 the learned counsel for the appellant submitted that the findings of the Rent Controller are based on no evidence and that the premises of modesty on which this issue has been found in favour of the respondent could not be a ground for ordering the ejectment for personal requirement and that even if it may be assumed to be a ground, there was nothing on record to show that modesty was involved.
16. The learned counsel also urged that the essential ingredients of insufficincy of accommodation already in occupation of the respondent was not proved on record. He referred to preliminary objection No, 6 of the written statement to show that it was asserted therein that only the respondent and her minor son, the ward were living in the already occupied premises which position was not refuted in the replication and thus established that there was sufficient accommodation available to them.
17. In respect of the requirement of Jamil Ahmad (the minor son of the respondent) owner of the property it was urged that this is no one's case that he is going to be married and that a boy of 17 years does not live separately in our society. It was urged that the requirement for the purposes of the minor has not been established especially when Jamil Ahmad who is a minor is not married.
Referring to Ghulam Mohyud Din v. Muhammad Ishaq and 3 others (3) the learned counsel contended that it was necessary to have produced the person for whom the premises was required to prove bona fides, which has not been done.
18. The learned counsel argued in this connection that by the statements of R. W. 2, R. W. 9 and R. W.
11, it has been established that the ground of bona fide requirement was not valid and in fact it shows that the respondent wanted to evict the appellant at all costs and for that purpose even resorted to have the premises requisitioned by the Government.
19. On issue No, 2 the learned counsel finally urged that the approach of the learned Additional District Judge, that mala fides of landlords were not proved, was erroneous in law in that the landlord had to prove the bona fides affirmatively and further that the mere statement of the landlady was not sufficient to establish bona fide requirements. Reference was made to Barkat Ali v. Sughra Bibi and others (4) in support of this contention.
20. The learned counsel next challenged the findings of the learned Additional District Judge, on issue No, 3 and submitted that all the alterations/additions etc. Were made before 1974 as admitted by the
(1) PLD 1979 Lah. 398 (2) PLD 1974 Kar. 319
(3) 1980 CLC 211 (4) PLD 1980 Kar. 223 ' respondent appearing as A. W. 2 and it was wrong to bold that the appellant had caused damage to the property.
21. The learned counsel for the respondent on the other hand submitted :- ' Firstly, that bana fide requirement of the premises in dispute has been established on record by the evidence adduced. He submitted that the premises is required for the use of the minor/owner who is going to attain majority in 1981 and' as at present also is grown up boy with International reputation as Tennis Star and his status warrants independent accommodation for him ; ' Secondly, the properly in dispute has all along been a residential premises which is evident from the documents Exhs. A. W. 2 and A. W. 3 to which no objection has been raised at any time ; ' Thirdly, the document marked 'A' was a fictitious document and it was not even put to the respondent when she appeared as A. W.
2. He submitted that this document, therefore, cannot be given any recognition and as of necessity has to be omitted from consideration. He referred to Khan Muhammad Yousaf Khan Khattak v. S. M. Ayub and 2 others PLD 1973 SC 160 to contend that documents which are not copies of judicial record should not be examined in evidence without proof of signatures of persons alleged to have signed, even if such documents are brought on record and exhibited without objection. In view of the above position he submitted that document Exh. R. W. 11/1 which had been produced by the appellant was the only document on record as to the terms of tenancy and shows that the property had been rented out both for residential and commercial purpose. He urged that a document produced by a party itself cannot be objected to buy it later on after it has been exhibited as held in Muhammad Hussain v. Ghulam All PLD 1977 Kar. 285.
' Fourthly, that it has been specifically urged in the ejectment petition in paras. 5 and 6 (b) that the property was needed for the use of minor and as such the evidence of A. W. 2 was sufficient to establish the bona fide requirement ; she being the guardian of the properties and person of the minor, her evidence has to be taken as that of the minor himself.
22. In the context of the above arguments it was urged on behalf of the respondent that bona fide requirement of the premises stood established and this being a point of fact on which, concurrent findings have been given by both the Courts below, this Court shall not interfere therewith in second appeal.
23. On issue No, 5 it was also urged by the learned counsel for respondent that the appellant having himself produced Exh. R. W. 11/1 cannot now say that the premises was not residential in nature.
24. As regards issue No, 3 the learned counsel for the respondent submitted that the finding of the learned Additional District Judge cannot be objected to on any valid ground. The removing of wall and the breaking of kitchen having been admitted, the only thing left to be seen was whether this was done before 1974, thereafter, A. W. 2's statement according to the learned counsel shows that breaking of kitchen was in 1974 and 1976 and the removal of wall was done in 1975. There is no suggestion even to the respondent that her above statement was incorrect. The appellant did not produce the receipts of expenses incurred as alleged by him which by itself shows that these were withheld because those would have established that alterations and additions were made after January, 1974. In view of the above submissions the learned counsel contended that the reversal of finding on issue No, 3 by the learned District Judge was wholly justified.
25. The learned counsel for the appellant in reply submitted that the mention in clause 2 of Exh. R.
W. 11/1 that T. V. Service Station was to be run in the premises shows that the premises was commercial in nature. As regards the date of alleged damage to the property, the learned counsel for the appellant submitted that the dates as pleaded in the pleadings of the respondent are different from the dates given in evidence and as such the alterations after 1974 were not established.
26. I have given consideration to the controversy involved and also carefully gone through the record. Since the arguments have been addressed by both the parties issue wise, I would also deal with them accordingly.
Issue No, 2.
27. This issue is regarding the bona fide requirement of the premises in dispute by the respondent.
The petition for ejectment as regards this ground avers as under :- "6. (b) That the premises are required in good faith for the residence of the owner himself and there cannot be any hitch for the same as the law is established that the desire of landlord in this regard may be sufficient for the vacation of premises. In view of the specific protective provision contained in clause (4) of section 13, whereby in case of the premises not vacated under this head, if relet to any person, the tenant can apply for the restoration of the possession."
' Again in the replication it has been contended in para 3 "that the minor having attained 17 years and being a grown up boy requires independent premises for his living......"
' It, therefore, follows that the basis for seeking eviction was the requirement of the premises for the use of the minor/owner. With this basis in mind, let us now examine whether the bona fide requirement had been proved on record. The most material evidence on this point is that of A. W. 2.
She has categorically stated that Jamil Ahmad the minor would become a major in January, 1981 that it was requested to the appellant that on expiry of lease he should vacate the premises as it would be needed by Jamil Ahmad and that a letter Exh. A. W. 2/5 was written to him.
' She has further on stated that Jamil Ahmad has now become about 18th years of age and he is not in possession of any independent bedroom or bath or study room and on account of this he is suffering in education.
28. It has also been specifically asserted that the premises in dispute is needed exclusively for the residence of Jamil Ahmad. Nothing has been put to her in cross-examination so as to contradict her aforementioned categorical statement. It may be very pertinently pointed out here that no suggestion even bad been made to A. W. 2 that the above statement is only a concocted story and in fact she wanted to enhance the rent as has been alleged in the written statement.
29. Now this plea cannot be said to be an afterthought even because as far back as February, 1975 the appellant was asked by the respondent vide Exh. A. W. 2/5 to vacate the premises at the expiry of the period stipulated in Exh. R. W. 11/1 viz. 11th January, 1977 as it was proposed to reserve this portion of the property for the residence of the minor who has to live independently at Lahore. This document which has been duly exhibited and to which no objection whatsoever has been raised proves beyond any shadow of doubt that the personal requirement of the premises in dispute for the minor asasserted in the petition for ejectment was bona fide and consistent.
30. It may also be observed in this regard that the Guardianship certificate Exh. A. W. 2/1 also provides that the property could not be leased by the Guardian for any term extending more than 1 year beyond the date on which the ward will cease to the minor. This by itself shows that it is envisaged that when a minor was/is about to attain majority he would have the entitlement and right to have the property for his own personal occupation. The filing of the petition for eviction of the E appellant on the basis of personal requirement, therefore, cannot be held to be except bona fide.
31. Yet another aspect of the matter is that all the ingredients required in law for seeking eviction on the basis of bona fide requirement stand fulfilled. As already observed above, the requirement for bona fide use and occupation of the property by the minor ward who is the owner not only stood established, but was consistent right from 1975. It is also borne on record that the said minor does not own any other residential premises in the city of Lahore. It may also be pertinently mentioned here that A. W. 2 categorically stated that she did not try to have the premises in dispute requisitioned, but opposed it as it was required for the minor.
32. Apart from the above discussion that the bona fide requirement of the premises by the minor ward stands fully established on record, it may be observed that the two Courts below have given concurrent findings on this issue, which cannot be interfered with otherwise also in second appeal, especially when the appellant has not been able to show that the findings were such as could not be arrived at on the basis of the record and the attendant circumstances of the case and that those were capricious or based on conjectures and surmises. Before parting with the discussion on this issue, it may be pointed out that the contention raised on behalf of the appellant that the assertion made in the written statement (para. 6 of preliminary objections) was not denied in the replication, is not factually correct. A perusal of para. 6 of the replication under the heading "Preliminary Objections" clearly shows that rot only the para. Has been denied, but specific reiteration has been made that the accommodation presently available with the respondent is not sufficient to meet her requirement and the requirement of Jamil Ahmad, her minor son.
33. The contentions of the learned counsel for the appellant on issue No, 2, therefore, fail.
Issue No, 3-
34. It is in evidence (refer statement of A. W. 2) that the wall between the drawing and dining rooms was constructed by the appellant in the absence of the respondent and that another room was constructed behind the kitchen and further that in both the bedrooms windows were removed so as to install the Air-conditioner. A. W. 2 has stated that she left for Mexico in 1974. Again in the cross-examination she stated that the wall was constructed by the appellant in 1975 which damaged the floor as well. No suggestion has been made to this witness on behalf of the appellant that her above statement was incorrect. It has also been rightly pointed out by the learned counsel for the respondent that no receipt for the alleged huge expenses of Rs, 1,36,000 has been produced by the appellant to show that he made the alterations, additions before 1974. In the face of this evidence it cannot be said that the finding of the learned Additional District Judge on this issue was such as could not be reasonably arrived at. The learned Additional District Judge has while giving his finding on issue No,. 3 also referred to the documentary evidence Exh. A. W. 2/R. I, and pointed out the discrepancy in dates. He has also considered Exh. R.W. 11/1 which lays an embargo on the right of the appellant to make alterations/additions. In view of the discussion made by him it cannot be said that the finding has been given without appreciation of the evidence. The question being again one of fact, any finding thereon by the first Appellate Court even though, at variance with that of the trial Court unless shown to be based on misreading or non-reading cannot be interfered with in second appeal. This finding, therefore, has also to be upheld and contention of the learned counsel, for the appellant in regard thereto is repelled.
Issue No, 5.
35. On this issue which also is one of fact there is verbal evidence of the appellant through production of R. W. 5, R. W. 6 and appellant himself as R. W. 11 to show that the premises was being put to commercial use.
' As against this there is not only oral evidence of A. W. 2 on this point, but documentary evidence as well as e.g. Exh. A. W. 2/2 which shows main Bungalow 6-K as residential, Exh. A. W. 2/3 which shows the premises in dispute as 6-K Annexe and Exh. A. W. 2/4 which shows 6-K Annexe Commercial, Exh. A. W 2/3 gives the description of the property as two bedrooms, one drawing, one dinning, one kitchen and 2 baths. This obviously is a description of a residential premises. There is no dispute that this copy of the assessment pertains to the year 1966-67, but then there is nothing on record to show that subsequently the nature of the property was changed to commercial in the Excise and Taxation record. Again Exh. R. W. 11/1, the Rent Deed produced by the appellant himself clinches the matter. In this document in clause 2 it has been specifically mentioned that the premises was leased out for residential purposes and for T. V. Service Station. The residential character of the property, therefore, remains intact and alive throughout and has been so admitted by the appellant himself. He has not even given any explanation as regards this stipulation while appearing as R. W.
11. The requisition notice Exh. R. W. 9/1 also shows the property as Annexe of house in occupation of Mr. M. A. Rizvi and Messrs T. V. Service Station.
' From the above evidence on record what can at best be said about the property in dispute is that it was being partly used for commercial purposes. It has however, to be held that it never lost the character of residential nature. This being so, the premises could be claimed by the landlord/owner for residential purposes as a building not solely used for non-residential purpose is a residential building. Refer Soba v. Siraj Din (I), Nasir-ud-Din Khan v. Abdul Majid (2).
36. The above discussion, clearly shows that the property in dispute had not lost the residential characteristics and could be claimed by the landlord for bona fide personal use and occupation for residence. The findings on Issue No, 5 as arrived at by the two Courts below concurrently cannot thus be objected to on any valid ground and the submissions made by the learned counsel for the appellant against the same also, therefore, fail.
37. Before parting with the case I would like to deal with an application filed by the appellant (C. M.
No, 5801-C/1979) seeking the production of additional evidence. Arguments on this application had been heard at the time of hearing of the main appeal. This application under Order XLI, rule 27 and section 151, C. P. C. Sought the permission to produce additional evidence which consist of the following documents :-
(i) Copies of the two sale deeds of 2 plots of land with the structure thereon sold by respondent Mrs. Parveen Anwar Afridi in her personal capacity respectively dated 14th March, 1979 and 28th May, 1979.
(ii) Copies of two ejectment petitions filed by the respondent Mrs. Parveen Anwar Afridi and her minor son Jamil Ahmad, the ward against Danish International (Regd..) through its Managing Director Mr. Danishmand Khan and Mr. Lec Ying Chiang. Mrs. Lienu Yan and Mr. Yep Hong Fat.
Partners of Mrs. Kouchi Restaurant seeking eviction of the aforesaid two parties from the premises in their respective occupation in Property No, SXXA-6--K, Commercial (Annexe) on the basis inter alia of requirement of the premises in question bona fide and in good faith for personal use and occupation ; and
(iii) Cutting from Pakistan Times dated 24th September, 1979 and 27th September, 1979.
38. This application was resisted by the respondent, who has put in a detailed reply asserting that the application had been filed to delay the decision in the appeal that there is no occasion for additional evidence at this late stage ; that the documents are not relevant to the controversy involved in the appeal, that the same had never been referred in the proceedings before the lower Courts and that an application for additional evidence was also filed before the learned lower Appellate Court which was rejected.
39. The learned counsel for the appellant had contended that since the eviction had been sought for in the case in hand on the basis of personal need and occupation by production of the sale- deed it was intended to show that there was no bona fide requirement of the premises in dispute in the appeal, inasmuch as, had there been any, the respondent
(1) PLD 1977 Lab. 1263 (2) NLR 1979 Civil (Lab.) 551 ' could not have sold her property. As regards the copies of the eviction applications, it was asserted that these were intended to show that the respondent created false grounds of eviction for personal need of properties rented by her. In respect of the newspaper cuttings, the learned counsel for the appellant conceded that they were not relevant to the controversy involved in this appeal.
40. The learned counsel for the respondent on the other hand contended that this cannot be inferred that if a landlord sells a property, he would not be in need of any of her properties for personal occupation. In so far as copies of eviction applications were concerned, it was submitted that those relate to commercial premises and not to the residential premises.
41. The documents now sought to be produced as additional evidence do not appear to be relevant to the controversy involved in the appeal. The sale-deeds in question relate to personal properties of Mrs. Parveen Anwar Afridi and not of Jamil Ahmad, her ward for whose benefit the property in dispute in this appeal has been claimed for use and occupation. Otherwise also even if Mrs. Parveen Anwar Afridi had sued in her personal capacity for eviction of the appellant, the sale of her other properties or any part thereof, could not detract from the availability of the remedy for eviction of a tenant on the ground of personal use and occupation quo another property. In fact the sale of the other properties would aggravate the need or personal requirement as the existing accommodation must then still fall short. It may also be observed that no embargo can be placed upon a landlord not to sell other properties merely because he has sued for eviction of a tenant from some other property.
42. As regards the copies of the eviction application, suffice it to say that the eviction in these two applications has been sought for from commercial premises which again would have no relevance to the controversy involved in the appeal under discussion in which the ejectment of respondent has been sought from the premises in dispute for residential purposes of the landlord.
43. From the foregoing discussion it is apparent that documents now sought to be produced as additional evidence have no relevance to the controversy involved in the appeal.
44. Apart altogether from the above position the application has been made at a very belated stage on 23rd October, 1979 i,e, about 5/Months after the institution of the appeal although the first of the two documents in question are of dates prior to the institution of appeal and later two of dates immediately after the institution of the appeal.
45. For the reasons given above, I do not feel, inclined to allow the application and reject the same.
In view of the foregoing discussion this appeal also fails and is/N dismissed with costs.