' By this judgment I propose to dispose of F.R.As. Nos.411/88 to 417/88 as common question of law is involved therein.
2. The respondent in each of these appeals is the appellant's tenant in the building situated on Plot No,SB-7/14. Zaibunnisa Street, Sadar Karachi. The appellant initiated ejectment proceedings against each of the respondents under section 15 of the Sindh Rented Premises Ordinance, 1979 inter alia on the ground that the premises were required by it for its own personal bona fide use.
The ejectment applications were contested by each of the respondents and the following issus were framed by the learned Controller:- Whether the application is not maintainable?
Whether the applicant requires the premises for its personal bona fide use?
What should the order be?
3. It may be pointed out that evidence in the case was permitted to be filed by affidavits and the appellant filed the affidavits of its witnesses Suleman and Khalid. However, it transpired during the cross-examination that the said witnesses had failed to swear the affidavits before the same were filed in the Court. The learned Controller has consequently held that the affidavits sworn by the witnesses could not be treated as evidence by him and as there was no evidence on record to prove the allegations made in the ejectment applications, the said applications were not maintainable. In view of such findings the applications were dismissed by the learned Controller vide his order dated 1-3-1988.
4. Mr. Inamul Haque, learned counsel for the appellant has assailed the above findings mainly on the ground that even if the affidavits filed on behalf of the appellant had not been sworn by the witnesses the defect, if any, would not invalidate the entire proceedings but the same was curable by virtue of section 13 of the Oaths Act, 1873. Reliance has been placed by the learned counsel on a number of cases including the case of Messrs Leather Goods International v. Mst. Asiya Khatoon Sherwani (1986 CLC 333) decided by this Court and Dr. Fazalur Rahman and 3 others v. Malik Ghulam Muhammad and others (1986 CLC 518) decided by a Division Bench of the Balochistan High Court. In the first case the case had been filed by the landlord as the premises were required by him for his personal bona fide use. It transpired during the cross-examination that the affidavit had not been sworn by the deponent before the Oath Commissioner. An objection raised in this regard was overruled by the Court in view of Section 13 of the Oaths Act which provides that no omission to take any oath or make any affirmation, no substitution of anyone 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 whatsoever 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. The next case referred to by Mr. Inamul Hague was decided by a Division Bench of the Balochistan High Court consisting of Ajmal Mian, Acting Chief Justice and Mir Hazar Khan Khoso, J.
(as they then were). A similar question arose before them and once again section 13 of the Oaths Act was invoked by them. Mr. Inamul Hague has also placed reliance upon the case of The Commerce Bank Ltd. Karachi v. Habib Bakhsh and another (PLD 1978 Quetta 45) and Bank of Credit and Commerce International (Overseas) Ltd. v. Karachi Tank Terminal Limited and 3 others (PLD 1988 Kar. 261) which also support the learned counsel's contention, if not directly, at least obliquely.
5. Mr. Ismail Padhiar, learned counsel for the respondent has, however, invited my attention to the case of Habib Bux v. Zahoor-ul-Hasan (1986 CLC 1119). In this case a learned Single Judge of this Court while dealing with a similar objection observed as follows:- "At the very outset, it would be observed that the contents of the affidavits-in-evidence filed by the landlord and his two witnesses and also that by the tenant, verified as they are as true to the knowledge and belief of the deponents without clearly stating how much of the statements are true to the knowledge of the deponents and how much statements have been made on the information or belief and further without stating source of the information or belief with sufficient particularity, being in violation of Order XIX, rule 3, C.P.C. And Sindh Chief Court Rules, make the said affidavits meaningless and valueless and therefore to be ignored. For the sake of reference Order XIX, rule 3(1), C.P.C. Is reproduced below:-
3. Matters to which affidavits shall be confined.--(1) Affidavits shall be confined to such facts as the dependent is able to his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted: provided that the grounds thereof are stated."
' I may next refer here to rules 50(1) (2), 51 and 62 of the Sindh Chief Courts Rules which provide:-
50. (1) every affidavit shall express clearly how much is a statement of the depondent's own knowledge and how much is a statement made on his information or belief and shall also state the source or grounds of the information or belief with sufficient particularity.
(2) When a particular fact is not within the deponent's own knowledge but is stated from information obtained from others, the deponent must use the expression: 'I am informed' and should add 'and verily believe it to be true' if such be the case. He must also state the name and address of and sufficiently describe for the purpose of identification, the person or persons from whom he received such information. When the statement rests on facts disclosed in documents or copies of documents, procured from any Court of justice or other source, the depondent shall state what is the source from which they were procured and his information or belief as to the truth of the facts disclosed in such documents.'
(3) ..................................................................
51. Every affidavit stating any matter of opinion shall show the qualifications of the deponent to express such opinion by reference to the length of experience, acquintance with the person or matter as to which the opinion is expressed or other means of the knowledge of the deponent
62. An affidavit not sworn or affirmed in the manner hereinbefore provided shall not be used in evidence.'
The view taken as above by me in the light of the statutory rules reproduced above finds support from the cases reported as Padmabati v. Rask Lal Dhar I L R 37 Ca1.259, Chandrika Prashad Singh v.
Hiralal AIR 1924 Pat. 312, Federal India Assurance Co. Ltd. v. Anandrao Pandurangrao Dixit AIR 1944 Nag. 161, Babu Lal v. Moti Lal AIR 1953 Mad. 82, Bisakhi Rani Ghose v. Satish Ghandra Roy AIR 1956 Cal. 496, Difendara Nath v. State of Bihar and others AIR 1962 Pat.
1101. The affidavits of the landlord and his two witnesses being not in accordance with the rules are liable to be ignored. Thus, there remains no admissible or reliable evidence in support of the plea of the landlord that the tenant had committed default in payment of the rent."
6. No doubt in the case relied upon by the learned counsel for the respondent it was held that a defective affidavit could not be relied upon as evidence as is evident from the observations just reproduced by me above but in this case the learned Judge was also impressed by the fact that even otherwise the case of the appellant was weak on merits. The question which requires determination in the present appeals is whether the learned Controller was justified in dismissing the eviction applications purely on this technical ground. No doubt, the learned Controller has referred to Rule 62 of Sindh Chief Court Rules which states that "an affidavit not sworn or affirmed in the manner hereinbefore provided shall not be used in evidence," but it is pertinent to mark that Rule 62 does not state that the entire proceedings would be rendered invalid for such reasons. The answer, in my opinion, is provided by section 13 of the Oaths Act reference to which has earlier been made by me in this judgment. The two cases mainly relied upon by Mr. Inamul Haque reported in 1986 CLC 333 and 1986 CLC 518 also lend full support to the contention put forth by Mr. Inamul Haque. Mr. Inamul Haque has further pointed out that this objection was raised after cross- examination of the witnesses had nearly concluded by the learned counsel for the respondents.
Consequently, according to the learned counsel there was at least evidence before the learned Controller which was recorded by him in the Court.
7. The upshot of the discussion therefore is that I accept these appeals and set aside the order passed by learned Controller and remand the case to him for fresh disposal in accordance with law. It is further ordered by consent that both C the parties would be at liberty to lead fresh evidence before the learned Controller. The learned Controller shall try and decide the case as expeditiously as possible. There will be no order as to costs in view of the questions raised.