' These are two separate First Rent Appeals filed by the tenant and alleged sub-tenant of respondent Muhammad Ismail and directed against a common order of ejectment passed in Rent Case No,19/85 by the learned VIth Senior Civil Judge and Controller Karachi (West).
2. Briefly, Rent Case bearing No, 19/85 was filed by Mohammad Ismail, respondent, against Muhammad Mehtab and Muhammad Aqil, allegedly tenant and sub-tenant on the ground and first floors, respectively, of a commercial building situated at Plot No,7/55, Commercial Area, Block- 7, Liquatabad, Karachi. Pleas in such Rent case were that Mohammad Mehtab, who was a tenant at a monthly rent of Rs,300 had sublet the first floor tenement of the premises to Mohammad Aqil, without the consent of the landlord, had defaulted in the payment of rent and, in addition, the tenant-hold was required by the landlord for the use of his sons who were jobless and required to be settled in life.
3. A joint written statement was submitted by the two appellants and it was claimed that they were independent tenants of the ground and first floors of the building, Mohammad Mehtab running the business of an Auto Electrician on the ground floor and Mohammad Aqil that of a Goldsmith on the first floor, separate monthly rents of the two premises being Rs,150. It was maintained that for each tenement, the landlord wanted to enhance the rent to Rs,600 per month, which being declined, tendered rental payments were refused, and, therefore, money orders were sent, which also were refused. Hence, the two appellants started depositing rents in Misc. Rent Cases Nos. 66 and 67 of 1985. Personal need for the landlord's sons was also denied. The points in controversy, therefore, included creation of sub-tenancy, default in payment of rent and personal requirement, in good faith, for the landlord's sons.
4. The landlord submitted his own affidavit-in-evidence as also that of two other deponents namely, Iqbal s/o Mohammad Din and Abdul Wahab s/o Ismail. The Controller, however, examined only the landlord but declined to allow the other two deponents to go in the witness box, as at the time the landlord was being cross-examined such witnesses were found present in Court, though they were directed to go out. At the foot of both these affidavits, it was observed that on the foregoing basis their evidence could not be considered. On the other hand, the two appellants submitted their own affidavits-in-evidence. They also, in addition, submitted the affidavits-in- evidence of one Saleem s/o Abdul Aziz and Mohammad Zaheer Alam s/o Noor Mohammad, the latter, elsewhere, suggested to be a common attesting witness to the two separate agreements of tenancy claimed to be in subsistence by the appellants.
5. The landlord, in his affidavit-in-evidence, for, the most part, reiterated what he had stated in the application for ejectment. He was cross-examined at length. In such cross-examination he produced the agreement of tenancy dated 7-6-1972 in favour of appellant Mohammad Mehtab. He admitted that such agreement pertained only to the ground floor, as at that time first floor was in the tenancy of another person, who vacated the same after five years whereafter such portion also was let out, but no separate rent was fixed for each floor. He said that he did not know appellant Mohammad Aqil and maintained that he had filed the rent case against Mohammad Mehtab only.
He denied that in January, 1978 he rented out the first floor to Mohammad Aqil. He acknowledged that the two appellants tendered separate money orders of Rs,150 each for the month of November 1985 and that he refused to accept the same. He had already acknowledged in the affidavit that he was withdrawing the rent deposited in the Misc. Rent Cases under protest and subject to adjustment. He admitted that he had Shop No,5/78, Commercial area, near Pilli Bheet Oil Depot, Liquatabad, which he had given on rent at Rs, 300 per month and also on Pugri of Rs,3,00,000. He denied that any talks were going on between him and appellant Mehtab for the sale of the shop in question or that he had sent Abdul Wahab and Iqbal, (Deponents of the two rejected affidavits) to tenant Mehtab asking him to purchase the shop in question on market value. The landlord further stated that he did not want to sell the shop in question for Rs,1,00,000. He denied that there was no personal need for seeking ejectment or that he wanted to give the shop on Pugri. He also denied that he was not on good terms with his sons.
6. Appellant Muhammad Mehtab, in his Affidavit-in-evidence reiterated what was stated in the written statement. He said that the agreement dated 7-6-1972 pertained only to the shop in question and that he was depositinhg the rent in circumstances already detailed in the written statement. There was no sub-tenancy. He categorically stated that the landlord also owned shop premises No, 5/78. Commercial Area, 'Liaquatabad, Karachi which was let out by him on heavy Pugri, such position having been admitted in cross-examination. He further stated that such shop premises was let out on Pugri after the institution of the rent case. It was pointed out that the landlord had failed to examine his sons, for whose requirements the premises were allegedly claimed. He asserted that the landlord was not on good terms with his sons. In cross-examination appellant-Mohammad Mehtab admitted that the landlord asked him to vacate, as he required the premises. The tenant expressed lack of knowledge as to whether the landlord's sons were doing business or service. He denied that the landlord was on good terms with his sons. He also denied that no shop was rented out by the landlord, during the pendency of the Rent Case nor could he give details or other proof for the same. He denied that the landlord had no other shop except the disputed premises but stated that he had no proof that the landlord had other shops or houses.
7. Appellant Mohammad Aqil in his affidavit-in-evidence maintained that he was inducted into the premises on the basis of a separate agreement of tenancy dated 29-1-1978. The two witnesses to such agreement were stated to be Israr All Khan and Mohammad Zaheer Alam, the former of whom had died and affidavit of Mohammad Zaheer Alam was submitted. The original of the agreement was said to be in possession of the landlord. He maintained that he was a regular tenant and, on refusal to pay enhanced rent, was depositing the same in Court. In cross- examination appellant Muhammad Aqil admitted that there were no signatures of the landlord on the tenancy agreement nor was such agreement attested by any official. He denied that the landlord's sons were jobless and maintained that they had their shops in Liaquuatabad but numbers thereof he could not give.
8. Appellants' witness Saleem s/o Abdul Aziz maintained that the landlord had demanded enchanted rent and Pugri from both the appellants in his presence, albeit appellants themselves not alleging any demand for Pugri. In cross-examination such witness admitted that no agreement was concluded no any rent was given in his presence. He denied that he had deposed falsely.
9. As regal* the affidavit-in-evidence of Mohammad Zaheer Alam, he does not seem to have been put in the witness box for cross-examination and the appellants chose to close their side on 7-1- 1987, on which date appellant Mohammad Aqil and witness Saleem were examined as the last witnesses in the case.
10. The learned Controller, on the above evidence, has found in the affirmative on all the three questions of subletting, default and personal requirement.
11. In the first place, it falls to be pointed out that it is a healthy practice not to allow witnesses to be present in Court, when evidence of the same side by which such witnesses are tendered is going on. It is not comprehensible as to how the two witnesses referred above, could have remained in the court-room, even though required to leave and go out, when evidence of their side was being recorded. Short of contumacious disregard of Court's order, if any witness had unwittingly remained in Court, the Controller could, at best, draw inferences of his own but could not shut out relevant evidence. Here, it is to be observed that while, normally, witnesses may be examined on the same date or from day to day, in practice this does not happen and indeed on account of pressure of work in judicial forums cannot happen. Thus the witnesses who remain to be examined in a case can, obviously, have advantage of the evidence of those, who have been examined earlier, through readily available copies of depositions. The point to be made is that unless essential, in the interests of justice and supportable by rules of law, precedent or practice of an unshakeable nature, evidence is not to be shut out, merely on technical grounds.
12. Coming to the merits of the controversy, on examining the entire record, including the evidence in the case, I have come to the conclusion that the landlord appears to be a simple man. He, admittedly, entered into an agreement with appellant Muhammad Mehtab, which is in the form of "Iqrar Nama" from Muhammad Mehtab only and is signed by the tenant and attested by two witnesses. The landlord has also admitted that he did not issue rent receipts to his tenant. In so far as the alleged sub-tenancy or tenancy of appellant Muhammad Aqil is concerned, that appellant has relied upon a similarly styled "Iqrar Nama" as that of Mohammad Mehtab, which is purportedly dated 29-1-1978. The landlord in cross-examination, was questioned and replied that he did not know that Israr and Zaheer Alain were "witnesses of both the tenancies". In the same breath he naively admitted that it was a fact that "both witnesses are of rent agreement" (sic). I have examined the two agreements of tenancy and have also seen the singnatures of Zaheer Alam on the affidavit-in-evidence affirmed by him. The "Iqrar Nama" dated 7-6-1972, pertaining to appellant Muhammad Mehtab is attested by one Zaheer Alam and one Hameed in Urdu whereas the "Iqrar Nama" dated 29-1-1978, allegedly, concerning appellant Huhammad Aqil, is signed by one Zaheer Alam in English and by one Israr Ali Khan in Urdu but 'such signatures of the said Zaheer Alam do not tally with the signatures in English, of the deponent in the affidavit-in-evidence of Mohammad Zaheer Alam s/o Noor Mohammad, who as observed above, was not apparently offered for cross- examination. This attesting witness, therefore, has not been proved to be common to the two Iqrar Namas under reference. Nor are the two witnesses to such Iqrar Namas identical, as claimed by the appellants in relation to the cross-examination of the landlord. Added to this is the fact that appellant Muhammad Aqil is deemed not to have examined any attesting witness whatever. This must be so, as deponent Zaheer Alam, whoever such Zaheer Alam may have been did not choose to step into the witness box for due cross-examination and his affidavit-in-evidence, accordingly has to be discarded from consideration.
Besides, as observed by the learned Controller only a photostat copy of the alleged "Iqrar Nama", dated 29-1-1978, was filed on a plea that the original was with the landlord and such "Iqrar Nama", admittedly, does not bear any official attestation; As is the case with the "Iqrarnama" dated 7-6- 1972. This document even though it does not bear the signature of the landlord was not even confronted to him, as was done in the case of the admitted "Iqrar Nama" dated 7-6-1972, between Mohammad Mehtab appellant and the landlord. The learned Controller has found the alleged "Iqrar Nama" dated 29-1-1978, to be furadulent and has declined to act on it. In the totality of evidence in this case, I see no reason to differ with that finding. As to the alleged sub-tenancy there are several other factors, which need to be taken note of. It is admitted in the written statement filed by the two appellants that they are related to each other. They chose to file a common written statement. Because of a common advocate, there was a common cross-examination. They, also, have a common witness in whose presence, allegedly, not only enhanced rent but even pugri was claimed by the landlord, a case not supported by the appellants themselves. The money orders sent by each of these appellants, originals whereof have been produced, appear to be in identical hand-writing. The Misc. Rent Cases, died for deposits in Court, as their serial order would suggest, also appear to have been filed simultaneously. All these cirumstances, would suggest a degree of unison on the part of the two appellants, which may be in accord with the landlord's allegation of an unauthorised sub-tenancy between the two. In addition the alleged agreement of tenancy between the landlord and appellant Muhammad Aqil was not produced in original and no effort was made to summon the original from the landlord, in whose allged possession the same was stated to be. The landlord was not confronted even with the photostat copy of such agreement.
Even otherwise, as pointed out above, such agreement was not proved. In these circumstances, tenancy in favour of appellant Muhammad Aqil was not established. The findings of the Controller, therefore, on the question of sub-tenancy are unexceptionable.
13. On the question of default, much has been said about the landlord withdrawing the deposited rent but on that score the landlord categorically stated that he withdrew the same under protest and subject to adjustment. Since, admittedly, the total rent of the premises was Rs,300 per month and no independent tenancy favouring appellant Muhammad Aqil having been established, deposit by the acknowledged tenant being at the rate of only Rs, 150 per month, the finding of default had a reasonable basis and need not deviated from.
14. The most important aspect of the case is of personal requirement. The landlord had clearly averred an evolved case of personal requirement for his sons as, ultimately, that stood at the time his affidavit-in-evidence was submitted. He had categorically maintained that his sons were jobless and were not gainfully' employed anywhere. It emerged for the appellants to show (even if both are assumed to be tenants) that, that was not so. They made categorical assertions and one of them even stated that the sons had shops in Liaquatabad but such assertions remained unsubstantiated as neither the numbers of such shops were given nor other details if any were provided. Thus on the basis of landlord's evidence, the burden, which had shifted on the appellants did not come to be discharged. Something has been said about the landlord not examining his sons. It is not an essential requirement of law that a particular witness or witnesses should be examined to prove a case of personal requirement. Depending upon the circumstances of each individual case, the landlord or his children or both may be examined. Want of examination of one or the others would be fatal only if some established rule or principle stands transgressed or vital evidence is, dishonestly, withheld. Such conclusion does not seem to arise in this case.
15. Much emphasis in the context of the landlord's good faith, has been laid on the landlord letting out another premises and in this context his admission is relied upon. However, in that admission the time of renting out such premises is neither indicated nor put to the landlord. A contrary assertion in affidavits of the appellants has been questioned in cross-examination but, despite that, has not been supported by any other cogent evidence. It cannot, therefore, be said, even if it were relevant, that any commercial premises was let out by the landlord at any material time, so as to disentitle hiin to seek eviction for the benefit of his sons.
16. There are, it must be conceded, some variations and even inconsistencies in the evidence of the landlord, but, for one thing, the same are not material and, for another, as observed earlier, the landlord in this case appears to be a simple person and may be entitled to some allowance on that score. On the other hand, there are some shifting pleas in the defence as well. All in all, a case of personal requirement is, also, proved.
' For the foregoing reasons, no case for interference with the order of the Controller is made out and these appeals stand dismissed. However, since the appellants are doing business in the disputed premises, which may come to an abrupt halt, I would allow eight months' time for them to vacate, provided that appellant Muhammad Mehtab alone deposits the accruing rental dues at the rate of Rs,300 per month.