1. ' The appellant has impugned the judgment dated 27-5-1990 passed by the 1st Senior Civil Judge and Rent Controller, Central, Karachi in Rent Case No,290 of 1988, ordering eviction of the appellant from Ground Floor of House No,III-F, 13/3, Nazimabad, Karachi.
2. ' Among others the respondent/landlord had sought eviction of the appellant/tenant on the ground of default in payment of rent for the months of July, August and September, 1987 on which ground the learned Controller ordered eviction of the appellant.
3. ' According to the appellant he had made payment of rent for the said three months at the agreed rent of Rs,2,000 per month to the father of the respondent, who had failed to issue receipt thereof.
4. Upon his refusal to issue receipt, the appellant started depositing rent w.e.f, October, 1987 in S.M.A.
5. No, 115 of 1987 in the Court of Rent Controller. Further it is averred that the appellant had made additions and alterations in the premises with the permission of the respondent and had incurred Rs,10,000 which in terms of clause 8 of the agreement dated 20-4-1987 was available for adjustment against rent for 11 months. Clause 8 reads as follows:-- "8. For the time being the first party (landlord) permits the second party (tenant) to get one of the two main sates extended at his cost for convenience of transporting his goods in and out of the premises. But the first party reserves the right of shifting the position of the gate with the same dimensions for the planned additions and alterations in the front of his building Jjusting the expension expenses in the rent in eleven months."
6. ' In his written statement, although reference is made to the said expenditure, no plea for adjustment of this amount towards arrears of rent was made by the appellant. In Ali Hassan v.
7. Abdul Qadeer 1980 CLC 912, a learned Judge of this Court had held that where a plea has not been set up either in pleadings nor adverted to in evidence, the same cannot be taken up in arguments.
8. In the present case the appellant cannot be permitted to raise this plea at the stage of appeal.
9. Besides, learned counsel has misinterpreted the said clause (8) of the agreement under which the adjustment of rent for eleven months was possible only after reshifting of the gate by the respondent which admittedly has not been carried out as yet.
10. ' It was next contended by the learned counsel for the appellant that with the coming in force of Ordinance XXVII of 1981, Section 6 of Oaths Act, 1873 stands amended and it is now incumbent upon a person who is a Muslim to give evidence on oath alone as the provision relating to solemn affirmation has been taken away. The respondent by first filing ejectment application and then affidavit-in-evidence on the basis of solemn affirmation in fact has adduced no evidence at all and the various averments made by him have no evidentiary value. Reference was made to Abdur Rehman v. The State reported in 1988 ? Cr. L J 2347 in which it was held that "the charge under section 193, P.P.C. Cannot be established against the petitioner because the affidavit filed by him is not sworn on oath".
11. ' Here it will be advantageous to refer to section 19 of the Sindh Rented Premises Ordinance, 1979 which runs as follows:--
(3) Where the respondent had field the written reply, the Controller shall proceed to receive evidence first of the applicant and his witnesses and then of the respondent and his witnesses.
(4) A party to a case under the Ordinance shall prove the evidence of his witness by producing the affidavit of such witness a copy of which shall simultaneously be supplied to the other party and such other party shall have the right to cross-examine the witness on such affidavit and if the witness has been cross-examined the party producing the witness may re-examine him.
12. ' In Ballentines' Dictionary Third Edition, the following definitions of affidavit and affirmation are found:-- "Affidavit: Any voluntary or ex parte statement recorded to writing or sworn to or affirmed before some person legally authorised to administer an oath or affirmation.
13. ' Affirmation: A solemn statement or declaration made as substitute for a sworn statement by a person whose conscience will not permit him to swear."
14. ' According to Chamber's (20th Century) Dictionary, "an affidavit is written declaration on oath".
15. Under Rule 9(vii) of Chapter 12-B of High Court Rules and Orders (Lahore) Volume IV "when the declarant in any affidavit speaks to any fact within his knowledge, he must do so directly and positively, using the word "I affirm" or "I make oath and say". Rules 53, 62, 63, 69 and 70, of the Rules and forms of the Chief Court of Sindh on the original side also speak of an affidavit on oath or affirmation. In practice also an affidavit in India and Pakistan is either made on oath or solemn affirmation. Section 6(i) of Oaths Act as amended speaks of oath only and not of affidavit which is either on oath or solemn affirmation. No doubt ocular evidence of a Muslim witness is required to be administered on oath but it will be a fallacy to depart from the legal concept attached to an affidavit containing both Oath and Solemn affirmation and bring it down from its popular and historical usage to a much narrower context. Being a special Jaw requiring the parties to prove their respective evidence by production of affidavits by witnesses leaves no doubt in my mind that affidavits-in-&idence filed by the parties in pursuance of section 19 of the Sindh Rented Premises Ordinance, 1979 are clearly saved from the operation of section 6(i) of Oaths Act. But there is nothing to suggest that the witness will not be required to take oath when confronted with cross- examination by the adversaries. In the present case also it is an admitted position that these witnesses were cross-examined on oath as required under section 6(i) of the Oaths Act. For these reasons the objection raised by the learned counsel for the appellant is not tenable.
16. ' Now adverting to the question of default in the payment of rent, the version of the appellant is that he had made payment of rent for the months of July, August and September, 1987 to the respondent's father who failed to issue receipts for the same. It is alleged by the appellant that rent for the month of June, 1987 was also paid by the appellant to the respondent's father who had issued receipt to him. Mir Afzal, father of the respondent in para.4 of his written statement states that he never received any rent from the appellant nor he ever issued any receipt to the appellant but in his cross-examination he admits that some time he used to receive rent and some time his son. In his affidavit of evidence, the respondent specifically states that the appellant never paid rent for the said period to his father and such an allegation is absolutely false and afterthought but he too in his cross-examination repudiates his stand by saying that he did not know whether his father had received the rent for the months of July, August and September, 1987. The evidence adduced by the respondent does not inspire confidence and is full of contradictions. I am also of the view that default, if any, committed by the appellant was no wilful and therefore I am not inclined to exercise my discretion in favour of the respondent.
17. ' As a result, I set aside the judgment dated 27-5-1990 passed by the learned 1st Senior Civil Judge and Rent Controller (Central) Karachi in Rent Case No,290 of 1988 but with no order as to costs.