1. This second appeal under section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as Ordinance) has arisen out of the following facts.
2. Tenement No. 3 in Tikamdas Building (now known as Aulia Building) situated on Plot No. RB 8/5 Bunder Road, Karachi was rented out by respondent Muhammad Habib since long before the said building was purchased by the appellants. The appellant entered into a sale agreement on 27th November 1962 with Tikamdas Wadhumal, Barrister-at-Law, the previous owner of Tikamdas Building, for the purchase of the entire Mansion. Earlier, on 5th November 1962 earnest money had been paid to the previous owner. On 28th February 1963 the property was registered in the name of the new purchasers. Some time later the building seems to have been named "Aulia Building".
3. The appellants brought an application for eviction of the present respon--dents on the ground that respondent No. 1, who was the original tenant of the tenement in dispute, had made material additions and alterations in the building without the permission of the landlord and had thereby also damaged the property. Second allegation was that he bad sublet part of the tenement to respondents 2 and 3 and thereby violated the terms of the lease in his favour. Respondent No. 1 denied both the allegations but in further pleas it was contended that the previous landlord had permitted the tenant both to carry out certain alterations and to sublet the premises. Respondents 2 and 3, however, stated in their written state--ments that they were working as servants of respondent No. 1 on daily wages and that the property or part thereof had not been sublet to them.
4. On these pleadings of the parties two issues regarding damage to the property and subletting it to respondents 2 and 3 were framed. The learned Rent Controller found both the issues against the appellant-landlord and the first appellate Court confirmed such findings. Hence present appeal.
5. The learned counsel for the appellant has stated that both these findings of fact are concurrent by both the Courts below but because they are based on misreading of fact, therefore, the review of such findings could be made at the stage of second appeal. The grounds taken in this regard are the averments made in the written statement of respondent No. 1 himself. In paras. 2 and 3 of the further pleas taken in the written statement respondent No. 1 has stated that the previous landlord Mr. Tikamdas Wadhumal had in writing allowed the respondent to sublet the disputed premises or any portion thereof and that he had further permitted him in writing to convert, alter or construct stall and cabins in the premises at the cost of the respondent and to sublet the same. These pleadings are further substantiated by relying upon Exh. D/5, the document purported to be executed by Tikamdas. This document being a short one is reproduc--ed for facility sake; "I, Tikamdas Wadbumal, Barrister-at-Law, landlord of building bearing M1p. Plot No. R. B. 8/5, situated on Robson Road, Kazim Raza Market, Karachi do hereby permit and grant the licence for the following to my tenant Mr. Muhammad Habeeb of tenement No. 3 of the above said building:
(1) to convert and alter the premises i.e. Tenement No. 3 of the said building which is in his occupation into business premises
(2) to construct the stall and cabins in the above said premises at his cost and risk, and
(3) to sublet those stalls and other portions of the above said premises.
(4) He is also authorised to utilize such open space belonging to me in front and adjacent to the premises as I have not already directly given on rent to others in whatever manner he likes.
(5) That the alteration and conversion work shall be done in a way as not to endanger or damage the property and the tenant shall obtain the permission of authorities if any required.
(6) The rent shall be Rs. 100 per month.
6. (Sd.) Tikamdas Wadhumal Barrister-at-Law Karachi, dated 5th November 1962. Robson Road, Karachi."
7. The learned counsel for the appellant contented that this piece ofevidence has not been taken into consideration by both the Courts below. This contention is correct as is evident from the judgments of the learned Rent Controller as well as the Additional District Judge, Karachi. This document which was executed on 5th November 1962, i.e. The day the appellant had paid the earnest money for Tikamdas Building. This docu--ment also indicates that on the day of its execution the premises in dispute was not a commercial premises, as is evident from para. 1 of this document, because in this para. Mr. Tikamdas had permitted Habib to convert the premises into business premises.
8. The second point about this document is regarding accommodation of the premises in dispute.
9. The evidence coming on record from both the sides is that the premises now consists of a hall and two cabins. This document indicates that the cabins did not exist on the day it was written because in para. 2 there is permission to construct stall and cabins in the premises in dispute. So, on both the points this document had material facts to disclose and not having been examined by the Courts below it can always be looked into at the stage of second appeal. The important thing about this document is that it has come from the possession of respondent No. 1 himself. He had taken alternate pleas also in his written statement and the document was filed in support of those pleas. The facts which are indicated by this document are quite material and cannot be brushed aside lightly.The statement of Rashiduddin, one of the appellants, read along with this document, supports the contention of the appellants. Rashiduddin had stated that he visited the premises in dispute on 27th February 1963, when he found two windows and a door in the premises. He did not find any cabin therein on that day. But subsequently, when he again visited the premises in the first week of March he found that the windows and doors bad been removed and three cabins had been erected instead. The statement of Rashiduddin that the cabins did not exist on 27th February 1963, is amply proved by Exh. D/5. Here I must also refer to the observations of the first appellate Court that "there is no oral or docu--mentary support in favour of the appellant's allegation on this issue" i.e. The issue regarding the alterations. The evidence of Rashiduddin, quoted above, clearly indicates that the alterations in the premises in dispute were asserted by him therefore, it has been rightly contended by the learned counsel for the appellant that the conclusion arrived at by the Courts below is because of misreading of evidence.
10. In view of the above facts it is quite evident that the statements of Zaki Sadiq, Rafiquddin and Ikblaque are obliging statements when they say that for the previous 10 to 12 years no alterations had taken place. There is no doubt that the certificate (Exh. P. 3) given by Riaz Sons is couched in very general terms when it says that there are substantial changes in the shape of additions and alterations in the building, because this certificate does not indicate as to when such changes may have been brought about. Two facts prominently come out even from this certificate. Firstly, the building, as it was constructed originally, has been substantially changed and, secondly, that such change has resulted in a number of cracks in the upper floor of the building. This evidence read with the statement of Rashiduddin would indicate that such changes have been brought about after 27th February 1963 and have resulted in the damage to the property.
11. On the issue of subletting I must say that the first appellate Court has misread the evidence. The observations in para. 5 of the judgment are that the appellants 'has not done as much as to depose in his statement that the opponents 2 and 3 are the sub-tenants of opponent No. 1. Without his (landlord) written consent'. These observations, unfortunately, are not substantiated by the evidence brought by the appellant on record. There is no doubt that in examination-in-chief the landlord has said only this much that he had warned the opponent not to keep any sub-tenant nor damage the property, but in cross-examination his statement on this point is in very clear terms which is to the following effect; "It is not correct that opponents 2 and 3 are the workers of opponent No. 1 on daily wages -they are sub-tenants."
12. In view of these averments of Rashiduddin it is clear that the learned appellate Court had confined itself only to the examination-in-chief part of his statement. The statement made in cross- examination had skipped his notice. In any case the fact remains that there is a specific allegation not only in the application but in the statement of appellant Rashiduddin that respondents 2 and 3 were sub-tenants of respondent No. 1.
13. During the pendency of the present appeal there were separate proceed--ings of criminal nature going on before the Additional City Magistrate No. 16, Karachi, in which the present appellant was, along with Shamimuddin and Rafiuddin, an accused person in a case under section 448/34, P. P. C.
14. In that proceeding Sadikali respondent No. 3 had appeared as a witness against the appellant. The deposition made by Sadik Ali in that case as well as copy of the judgment was sought to be brought on record of this appeal under Order XLI, rule 27 as additional piece of evidence. This was done because the recording of the statement of Sadik Ali as well as the delivery of judgment of that case took place after the institution of the present appeal. This application under Order XLI, rule 27 was allowed by an order of this Court on 29th September 1975. Relevant part of the order reads as under; "The statement which prima facie appears to be relatable to issue No. 2, shall be a material consideration in deciding the same. This applica--tion is, therefore, allowed subject to any legal objection that may be raised at the final hearing about admissibility."
15. In his statement before the Additional City Magistrate respondent Sadik Ali who appeared as a witness for the prosecution, had stated 'I pay rent to one Sharif who is tenant of the accused. Half of the rent of the shop I pay it to Sharif'. Sharif was the father of respondent Habib, since deceased.
16. This being the part of the record of the present appeal as additional evidence plus observations in the judgment of the Additional City Magistrate which are to the following effect; "In cross-examination, this witness admits to have a shop in Aulia Building, which belongs to the accused persons. He also admits not paying the rent of his shop to the accused, but to one Sharif who is tenant of the accused."
17. The primary objection taken is against the admissibility of statement of Sadik Ali made in this criminal proceeding. This objection is based on the provisions of section 145 of the Evidence Act.
18. Section 145 reads as under; "A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the' writing, his attention must, before the writing can be proved, be called to these parts of it which are to be used for the purpose of contradicting him."
19. The learned counsel, while relying upon Ghulam Mohammad v. Shah Jira Khanum (PLD 1959 Lah.
20. 1014) and Sikander Hayat v. Master Fazal Karim (PLD 1971 SC 370) alleges that any previous statement cannot be brought on record without complying with the procedure laid down in section 145 i.e. The witness making such a previous statement could be confronted with such admissions in order that such witness may have an opportunity to explain away the ambiguities or contradictions contained in the previous statement. But the learned counsel for the appellant contends that the statement of Sadik Ali intended to be brought on record now is not a previous statement because it was recorded after his statement before the learned Rent Controller had been recorded in this case wherein Sadik Ali had asserted that he was a daily-- wage worker of respondent No. 1 and not a sub-tenant. The second point taken by the learned counsel for the appellant is that the provisions of section 145 of the Evidence Act are primarily meant for impeaching the character of a witness. This section is provided only in cases where the object is to impeach the character of a witness. The statement made therein would fall under admission as contemplated by section 21 of the Evidence Act. In this connection the learned counsel relied upon Raheem Bux v. Nathu Bibi (PLD 1951 Pesh. 61). The relevant observations of this judgment are as under; "A former deposition made by a person can be used subsequently either in order to contradict him with a view to impeach his credit, or if he has made therein any statement of fact, as an admission under section 21 of the Evidence Act. In the former case section 145 of the Evidence Act would apply, and the credit of the witness will not be considered to have been effectively impeached until and unless the former deposition is confronted to him and he is given an opportunity to explain it, but if that deposition is to be prove as an admission one fails to see why should it be considered necessary to confront the witness with it in order to make it a legal evidence in the case. Section 145 would not apply in the latter case, as is clear from the very wording of the section itself. An admission is asubstantive piece of evidence and it is not used for the purpose of impeaching the credit of the witness, or in order to contradict him, and once it is proved, it is a well-established rule of law that it is for the party making it to affirmatively establish that the admission made by him was false or untrue and should, therefore, not be acted upon. There is no condition attached to section 21 of the Evidence Act that an admission would be relevant only if it is confronted to the person making it, otherwise it would be irrelevant and inadmis--sible in evidence. Normally if a person has made an admission admitting the existence of a certain fact against his own interest it shall be presumed to be correct until the contrary is established."
21. I am in respectful agreement with the observations made and, therefore, hold that the statement of respondent Sadik Ali, made by him in criminal proceeding, in which he was not a party, are admissible in the present proceedings. Additionally, his deposition as well as the judgment being a public document within the meaning of section 74 of the Evidence Act need not be proved by calling the witness and their certified copies, if filed, would be enough.
22. This statement of Sadik Ali made before the Additional City Magistrate, Karachi, coupled with the statement of Rashiduddin and the averments made in Exh. D/5, all taken together, clearly support the contention of the appellants that the respondent No. 1 bad sublet the premises to respon-- dents 2 and 3. I have, therefore, no hesitation in coming to the conclusion that these allegations of the appellants are correct.
23. In view of the fact that respondent No. 1, had made additions and alterations without the permission of the landlord and because such additions and alterations had damaged the property, and secondly because respondent No. 1 had without the permission of the landlord sublet the premises to respondents 2 and 3, therefore, he is liable to be ejected. The appeal, therefore, stands accepted with costs and the tenants shall put the landlord in possession within a period of two months.