' This F.R.A. Is directed against the Judgment of IIIrd Senior Civil Judge and Rent Controller (East), Karachi, dated 19th May, 1990, whereby he allowed the ejectment application filed by the Respondents and directed the appellant to vacate shop in question within 90 days therefrom.
2. Briefly stated the respondents' case is that they are the landlords of a building situated on Plot No,7/67, Dehli Mercantile Muslim Cooperative Housing Society Ltd., Karachi, having acquired the same by inheritance. The appellant is the tenant in respect of a shop in the said -building at a monthly. Rent of Rs, 325. Respondents Nos.3 and 4, Khalil-ur-Rahman -and Jamil-urRahman have grown up and are. Without job and want to establish their business. Hence they require the shop in question for their personal bona fide need: Accordingly the appellant was requested by the Respondents to vacate the said shop iii the month of July, 1988. The appellant refused to vacate the shop. Hence the ejectment application was filed.
3. The appellant resisted the ejectment .Application and filed written statement wherein he admitted the relationship of landlord and tenant between the parties as well as the rate of rent. :He, however, alleged that he had acquired the tenancy of the shop from the then owner of the building on payment of pugree on the understanding that the owner of the building shall. Not get the premises vacated from him. He denied the allegation that the Respondents Nos.3 and 4 were jobless or that they require the shop in question for their bona fide personal use to establish the business. He alleged that the ejectment application was filed on account of greed and was mala fide.
4. The learned Controller took up the. Issue as to requirement of the shop for bona fide personal use for decision. He took into consideration the evidence of Zafar Iqbal applicant No,2, Khalil-ur- Rahman applicant No,3 and Jamil-ur-Rahman applicant No,4. Who had filed their Affidavits and were cross-examined on the same. On behalf of the appellant Manzoor Elahi filed his. Own Affidavit and that of Mohammad Salcem and Abdul Malik and all the three were cross-examined. After taking into consideration the evidence. So adduced, the learned Controller found the issue in favour of the Respondents and allowed the ejectment application as shown above. The Respondents in their Affidavits of evidence have stated that the shop in question was bona fide required by them for their use and occupation as Respondents Nos.3 and 4 had grown up and wanted to establish a business. They were cross-examined by the appellant's counsel, but their evidence could not be shaken. Mr. Shamshad Lari, learned counsel for the appellant, has first contended that the shop was taken on pugree, and therefore, the appellant was not liable to ejectment. The contention of Mr. Shamshad Lari is not acceptable. There is no receipt for the amount of pugree and the -amount of rent also is not so small as an inference for there being Pugree. Could be drawn especially when the shop is situated in a residential area.
5. Mr. Rahmat Elahi, learned counsel for the Respondents, has also placed reliance on the case of Shaikh Muhammad Yousuf v. District Judge, Rawalpindi and 2 others reported in 1987 SCM R 307, where the hon'ble Supreme Court referred to the question of Pugree and observed as under:- "However, that being mutual arrangement between the parties, would not debar the respondent- landlord from instituting eviction _' proceedings on the ground of bona fide personal need."
6. The next contention of Mr. Shamshad Alam Lari, learned counsel for the appellant, was that the evidence of the Respondents, which was filed in the shape of Affidavits, was not sworn in accordance with law. He referred to section 6 of the Oaths Act and placed reliance on a decision of this Court reported in 1988 P.Cr.L.J. 2347 (Abdur Rahman v. The State) where it was held that a Muslim at the time of filing an Affidavit or giving an evidence, has to affirm or swear an oath and not on solemn affirmation, as was the case before the amendment of Oaths Act. To this contention Mr. Rahmat Elahi replied that the cross-examination of the applicants was recorded in the Court and they were recalled and reaffirmed and that usual oath prescribed under the law was administered to them by the Rent Controller. Reliance was placed in the case of Leather Goods International v. Asia Khatoon Sherwani (1986 CLC 333), where it was held that when a deponent of an Affidavit submitted himself to cross-examination, on the contents of such Affidavit, it would make his evidence worth consideration, if his Affidavit was excluded from consideration for technical irregularity in swearing it. In their cross-examination also the applicants have stated that they require the shop for their bona fide personal use as they want to carry on their business in the said shop. Such evidence of the applicants coupled with the fact they have successfully stood with the cross-examination, would entitle them to the relief prayed for by them as was held in the decision reported in PLD 1982 Kar. 790 (Fakhruddin v. Syed Asadullah Shah). Besides, section 13 of Oaths Act, 1873 saves the proceedings and evidence from being rendered invalid on account of omission to take oath or B make affirmation or any irregularity in its form. Section 13 thereof reads as under:- "13. 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 form in which any one 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."
' Case of Abdur Rahman v. The State (supra) was my own decision in which it was held that, inter alia, the omission to take oath was a ground on account of which a charge under section 193, P.P.C.
Could not be established against the so-called deponent. Hence it is distinguishable from the present case.
7. Mr. Shamshad Lari finally submitted that the appellant was a poor shopkeeper. If he is ejected from the shop, he would suffer heavy loss and his entire business will be shattered, while the applicants have got sufficient funds to get some other shop and start their own business.
8. After taking into consideration the contentions raised from both the sides and the evidence led in this case, I do not find any justification whatsoever to interfere with the finding of the learned Controller. I, therefore, uphold the judgment dismissing the F.RA. However, I allow nine months' time to the appellant to vacate the shop on condition that he continues to pay the monthly rent regularly before 10th of every month. On expiry of period of nine months, the learned Controller will issue ejectment warrant without notice, if any execution application is filed.