1. ' This is an appeal against the order of the learned First Senior Civil Judge and Rent Controller, South Karachi.
2. Facts leading to this appeal are that the appellants filed ejectment application, against the respondent on the ground of bona fide personal requirement and impairing utility of the premises by the opponent due to addition and alteration. This application was rejected. Hence this appeal.
3. ' According to ejectment application the shop in question was rented out to the respondent about 25 years back at the monthly rent of Rs,35. Appellant Muhammad Hussain who is co-owner of the shop wanted to start business of Painting and Repairing of Fans in the premises. He does not own any other shop except this shop. Previous to this respondent filed Rent Case No,3330/79 against the appellants for carrying on necessary repair which was allowed to the extent of Rs,500 by the Rent Controller. The respondent carried on repairs in such a way that premises were altered for which appellants filed Suit No, 3239/88 against the appellant for injunction but which was dismissed as infructuous after inspection of site by the Rent Controller.
4. ' The respondent in his written statement has denied relationship of tenant and landlord with appellant Muhammad Hussain, but admitted that he is regularly paying rent to Nazar Hussain one of the appellant, and brother of Muhammad Hussain. He also denied that appellant Muhammad Hussain requires the premises for running business, but asserted that Muhammad Hussain is in business of running Suzuki, and that premises was not required for personal bona fide needs.
5. Appellant denied to have made addition and alteration in the shop which had impaired the utility and value of the shop.
6. ' Both appellants Nazar Hussain and Muhammad Hussain were examined. They have produced photo copy of extract of P.T.
1. Appellants also filed affidavit in evidence of one Mir Hassan but he was not cross-examined.
7. ' Respondent Ali Akbar was examined. He has produced a copy of earlier ejectment application No, 3944/88 filed by appellant Muhammad Hussain against the respondent, application of the advocate for the appellant for permission to withdraw the rent case, and order thereon, Ghani Akbar and Muhammad Sadiq were also examined from side of the respondent.
8. ' Learned Rent Controller set the following point for determination:
(1) Whether the opponent made any addition and alteration in the shop and he has impaired the utility of the same?
(2) Whether the applicant No, 2 required the premises in question for personal bona fide use?
(3) What should the order be?
9. ' Finding of the learned Rent Controller in respect of Points Nos. 1 and 2 is in negative as such application was rejected.
10. ' The learned advocate for the appellant has not pressed point of impairing the value and utility of property by addition and alteration in the shop. Moreover the appellant Nazar Hussain has himself produced a copy of inspection note in Suit No, 3239/88 by Civil Judge XIX Link Judge to XXI Civil Judge, Karachi. Report clearly shows there is no major damage caused due to this repair-cum- reconstruction. The premises has been renovated by repairs. This report clearly shows that by repair, the value and utility of premises is not impaired but has increased.
11. ' The learned advocate for the appellant has further argued that according to the evidence appellant Muhammad Hussain has only this shop. He has no other shop. Muhammad Hussain wants to carry on his business of Painting and Repairing of the Fans, as such he being the owner of the shop is entitled to get possession of the shop for personal bona fide need. He has further argued that learned Rent Controller in his order has given finding that affidavit in evidence filed by Muhammad Hussain could not be considered as he in his cross-examination has admitted that he has not affixed thumb-impression on affidavit. According to the learned advocate this view in the order of Rent Controller is not correct, as even if affidavit is not signed or thumb-impressed, then if the witness submits himself to cross-examination his evidence is to be considered. On this point he relied on PLD 1967 SC 62, 1986 CLC 333, 1986 CLC 518, for personal bona fide need he relies on 1986 CLC 395, PLD 1982 SC 218.
12. ' In Abdul Lateef Niazi v. Government of West Pakistan (PLD 1967 SC 62) it has been held "Departmental inquiry evidence not recorded on oath and saved by under section 13, Oaths Act."
13. ' In Leather Goods International v. Mst. Asiya Khatoon Sherwani (1986 CLC 333) it has been held "irregularity in swearing affidavit, held, was merely irregularity, which would not wipe but entire evidence, deponent submitting himself to cross-examination of contents of such affidavit would make his evidence worth consideration even if affidavit excluded from consideration for technical irregularity."
14. ' In Dr. Fazalur Rehman and 3 others v. Malik Ghulam Ahmed and another (1986 CLC 518) it has been held "proceedings before tribunal the omission to administer oath. Tribunal omitting to write word solemn affirmation while recording statements of respondent held irregularities and would not vitiate entire trial, as same was curable under section 13, Oaths Act."
15. ' In Fazal Azeem and others v. Tariq Mehmood (PLD 1982 SC 218) it has been held landlord seeking eviction on the ground of personal requirement cannot be expected to sit idle for periods of time during pendency of eviction proceedings.
16. ' In Bhale Dino v. Din Muhammad (1986 CLC 395) "personal bona fide requirement of the landlord statement made on oath by the landlord being in consonance with pleadings remaining unchallenged and unshaken, and supported by witnesses with no rebuttal, landlord held had succeeded in establishing his claim for bona fide use and occupation."
17. ' Learned advocate for the respondent has argued that the appellant Muhammad Hussain had filed an earlier Rent Case against the respondent Rent Case No, 3944/80 for the same ground for personal bona fide need for running business of Painting and Repairing of Fans but he had withdrawn the same fresh application on the same ground after one year is filed by the appellant.
18. If Muhammad Hussain need was bona fide then why he withdrew earlier application. He has further argued that the ejectment application shows that both appellants are owner of the shop in question, but in deposition they have taken a new plea that by the partition this shop alone has come in share of appellant Muhammad Hussain. This plea is raised with mala fide intention as there are 9 shops in the same plot and few shops were rented out after filing of the suit. He further states that P.T. 1 produced appellant show that whole plot, in which shop situated, is in the name of appellant Muhammad Hussain.
19. ' He has further argued that appellant Muhammad Hussain has clearly stated that he has not affixed his thumb-impression on this affidavit in evidence and that appellant Muhammad Hussain has stated that he has signed the affidavit in the office of advocate and left for home. He does not say that affidavit is sworn by him. These were irregularities which cannot be cared even if there are subjected to cross-examination by the Advocate of respondent.
20. ' He has further argued that need of the premises is not for bona fide use but with mala fide intention as there were already litigation of the parties. He has relied on 1989 MLD 3873, 1989 CLC 241, 1981 CLC 1223, 1990 CLC 703 and 1987 M LD 2110.
21. ' In Abdul Hayee Usmani v. Qamar khan 1987 M LD 2110 "held any misstatement, material to the controversy or suppression of fact whose disclosure prejudice the claim of landlord, would reflect against good faith and bona fide of landlord."
22. ' In Master Muhammad Bashir v. Moinuddin 1990 CLC 703 it has been held "non-appearance of the deponent before the Oath Commissioner or before any body for statement on oath makes the affidavit inadmissible in evidence as such affidavit was not attested in a proper way."
23. ' In Haji Abdul Ghaffar v. Lal Bux and others 1989 CLC 241 it has been held "landlord having not possession of premises vacated by another during ejectment proceedings and re-let same to some other, held if the need of landlord was bona fide he would not have relet the same, landlord, therefore failed to prove his bona fide personal requirement".
24. ' In Syed Farzan Rizvi v. Khalilur Rehman 1981 CLC 1223 it has been held "landlord making averment for desire to start business of manufacturing Katha. No evidence led to establish landlord's requirement in terms of area for business and obtain permission to start such business. Landlord letting out two premises. No averment made as to both premises or any one of them being not suitable for landlord's need, held disentitled to get eviction of tenant".
25. ' In Anwar Ahmed v. Ghulam Nabi 1989 MLD 3873 it has been held in case of requirement of premises for commercial purpose burden of proof is heavier on landlord".
26. ' Heard the Advocates of the both parties and perused R&P. It is admitted position that affidavit in evidence of appellant Muhammad Hussain for whom the premises is required has categorically stated in cross-examination that he has not affixed his LTI over this affidavit. Appellant Nazar Hussain has also stated in cross-examination that he had signed the same in the office of the Advocate and then left. Both of them have been subject to cross-examination. Question arises whether their evidence in affidavit in evidence be accepted or not. In view of (1986 CLC 333)
27. Leather Goods International v. Asiya Khatoon, evidence of Nazar Muhammad can only be considered but not of Muhammad Hussain. Nazar Hussain has not stated that he was sworn in, which is curable as he been subjected to cross-examination. In case Muhammad Hussain he has specifically denied to affix his thumb-impression on the affidavit in evidence, as such his affidavit in evidence cannot be considered. There remains only evidence of Nazar Hussain.
28. ' Ejectment application has been filed by both the appellants. They have not pleaded in the ejectment application that the shop in question, has come in the share of the appellant Muhammad Hussain. This plea was taken in the evidence in the Court. The P.T. 1 is in the name of the appellant Muhammad Hussain for whole plot, in which there are 9 shops. Some of them have been re-let after filing of this ejectment application. From circumstances it appears that it is joint property of both appellants. The appellant has tried to improve the case by stating that after partition the only shop in question has come in the share of Muhammad Hussain the appellant.
29. Both the appellants have admitted that the shops were let out during pendency of the application.
30. If the appellant Muhammad Hussain was sincere in establishing his business he could have taken a shop from Nazar Hussain even on starting his business. It appears the appellants are only interested in getting the shop vacated, which is in possession of the respondent since last 25 years, on the rent that was prevalent on that time.
31. ' Citations produced by the appellants are not applicable as plea of personal requirement has been challenged, even relationship of the landlord and tenant in respect of appellant Muhammad Hussain is challenged.
32. As regards the citation relied upon by the respondent in my opinion are relevant in this case. The appellants have suppressed the facts, re-let the vacate premises on rent during pendency of the ejectment application; and led no evidence on personal requirement except their own.
33. ' Appellants have not come in the clean hands. I see no reason to interfere in the order of the Rent Controller which is maintained.
34. ' In view of these findings, I dismissed this appeal with no order as to costs. These are reasons of my short order already announced.