1. ' This is an appeal under section 21 of the Sindh Rented Premises Ordinance (hereinafter called Rent Ordinance) directed against an order dated 6-1-1988 in Rent Case No,1053/85 Mrs. Nasim Bashir v.
2. Spectrum Communications Limited whereby eviction application filed by the respondent/landlady was allowed on the ground of personal bona fide need and the appellant/tenant was directed to vacate the premises within 60 days from the date of impugned judgment, hence the present appeal.
3. ' Brief facts of the case are that the respondent/landlady filed ejectment application against the appellant/tenant in respect of property bearing No,42/1- S/6, PECHS, Karachi, on the ground that appellant/tenant has carried out certain alterations in the tenement and thereby has damaged her property and that she required the said property for her use and for the use of her family in good faith as the contract of the respondent's husband in respect of his employment at Dubai has expired therefore the respondent with her family has shifted to Pakistan for permanent settlement.
4. It was also stated that the respondent with her family was temporary residing in the flat owned by the brother of respondent's husband where they have been provided only one room. The appellant/tenant filed written statement stating therein that the structural alterations were carried out in the premises with the valid permission of the respondent and that the respondent's husband has got other better houses to live and the requirement was not bona fide and the object of the ejectment application was to get enhancement of rent.
5. ' On the pleadings of parties the learned Rent Controller settled the following issues:--
(1) Whether the opponents have carried out structural changes which has impaired the value and utility of the disputed premises?
(2) Whether the applicant requires the premises in dispute for her personal bona fide use? And
(3) What should the order be?
6. ' The respondent/landlady filed her affidavit as Exh. 4 and produced in cross-examination the photostat copy of No-Objection Certificate as Exh. 4/A and photostat copy of tenancy agreement dated 20-8-1978 as Exh. A/1, photostat copy of certificate dated 1-7-1985 as Exh. A/2, Photostat copy of passport of applicant as Exh. A/3, photostat copy of passport of Shermeen as Exh. A/8, Photostat copy of passport of Sardar Salt= Bashir as Exh. A/13, photostat copy of passport of Rehan Bashir as Exh. A/18, photostat copy of passport of Sardar Bashir as Exh.A/22, photostat copy of notice dated 21-8-1984 sent by the Advocate of the respondent to the appellant/tenant as Exh.
7. A/28, photostat copy of letter dated 28th July 1984 in respect of contract of service as Exh. A/29, photostat copy of letter dated 3-8-1985 of the respondent's husband to the Chief Executive of the appellant/tenant as Exh. A/30. Respondent also filed affidavit-in-evidence of Sardar Bashir Ashraf as Exh. 5, affidavit-in-evidence of Mujtaba Ashraf as Exh.
6. The appellant/tenant filed affidavit-in-evidence of Shah Noor Ahmad, Director of appellant/tenant who produced photostat copy of agreement dated 21-8-1980, photostat copy of general power of attorney. All the witnesses who filed their affidavits-in-evidence were cross- examined by the respective learned counsel of the parties. After recording the abovesaid evidence and hearing the learned counsel, Rent. Controller passed the impugned judgment whereby the appellant/tenant was evicted on the ground of personal bona fide need of the respondent, hence the present appeal.
8. ' I have heard Mr. Khalid Anwar, learned counsel for the appellant/tenant, and Mr. Mumtaz Ahmad Shaikh, learned counsel for the respondent/landlady, and perused the R&P of the case and the case-law cited by the respective counsel for parties.
9. ' Learned counsel Mr. Khalid Anwar for the appellant has referred to para.4 of ejectment application which was filed on 14-9-1985 and para.4 of the affidavit-in-evidence of Sardar Bashir Ahmad and para.6 of the affidavit-in-evidence of Mst. Nasim Bashir and has taken me through the impugned judgment in order to show that the respondent/landlady has based her case for personal bona fide need on the ground that the contract of employment of her husband has expired in July, 1985 in Dubai therefore she has returned with her family to Pakistan to settle permanently hence needed the premises in dispute in good faith. He has further contended that in view of the negative finding on Issue No,1 the respondent/landlady's statement on that point has been found to incorrect and her testimony on another issue was false in view of the photostat copies of the documents proposed to be produced as additional evidence as the same would show that the husband of the respondent continued to serve at Dubai and lived there with his family therefore respondent's need was not based on good faith. He has contended that the respondent in the said circumstances cannot be believed as she has been found to have made false statement. Learned counsel for the appellant has referred to the affidavit of Shah Noor Ahmad, the Director appellant's Company and has also referred to documents proposed to be produced as additional evidence in this appeal and has also referred to para.3 of objection filed to the appellant's CMA No,731/89. He has argued that his C.M. Application No,731/89 moved under Order 41, Rule 27, C.P.C. Be read with sub-clause
(3) of section 21 of the Rent Ordinance for the purpose of admitting the documents as additional evidence. Learned counsel has placed reliance upon Syed Abdul Hakim and others v. Ghulam Mohiuddin (PLD 1994 SC 52), Fazal Hussain v. Mahmood Hussain (1993 MLD 1726), Punjab Province v.
10. Rent Controller and others (1988 MLD 641), Attiya Badar v. Haji Munshi Khan (1994 CLC 1875) and Muhammad Ikramullah and another v. M/s. Asian Packers (1987 MLD 3241) in support of his contentions. He has further argued that either this Court may record the additional evidence itself or after setting aside the impugned judgment, the case be remanded to the learned Rent Controller for conducting the further enquiry in the matter in view of the contentions raised by him.
11. Learned counsel for the appellant in the end urged that the respondent and her family be asked to produce their passports before this Court in order to confirm the fact that the respondent with her family was still residing in Dubai.
12. ' Learned counsel Mr. Mumtaz Ahmad Shaikh for respondent has argued that the respondent filed the ejectment application in the month of September, 1985 as she bona fide required the premises in good faith as she had come with her family from Dubai to Pakistan because the contract of employment of respondent's husband had expired in July 1985 and respondent's husband remained in Pakistan till 1988 but could not get any suitable job therefore he went back to Dubai where he got temporary employment therefore it could not be said that the respondent had falsely deposed in respect of her bona fide need. He has further argued that the application moved under Order 41, Rule 27, C.P.C. In the year 1989 is belated one as the photostat copies of documents proposed to be produced as additional evidence is made after the disposal of the ejectment case and the said copies were not necessary for the pronouncement of judgment by this Court. He has further argued that protection has been provided under section 15-A of the Rent Ordinance to the tenant where in case, the landlord has put the premises obtained under Clause (vii) of section 15 of the Rent Ordinance to a use other than personal use within one year of such possession landlord could be punished as provided in sub-clauses (i) and (ii) of section 15-A of the Rent Ordinance therefore there would no question of bad faith for seeking eviction of the appellant/tenant from the premises in question. He further contends that the respondent/landlady has no other house in Pakistan. He concluded his arguments saying that satisfactory evidence has been brought on record by the respondent/landlady whereby her requirement in good faith has been proved and the said evidence being consistent with the pleadings was rightly appreciated by the learned Rent Controller hence the impugned judgment was legal and proper-and called for no interference in this appeal. He has placed reliance upon Fazal Azim and another v. Tariq Mahmood and another (PLD 1982 SC 218) and Amanullah Khan v. Hafiz Abdul Ghaffar (PLD 1985 Karachi 7) in support of his contentions.
13. ' Contention of the learned counsel for appellant is that as the respondent in the first instance denied that the alterations and additions were carried out with her permission but when she was confronted to No-Objection Certificate Exh. 4/A of her husband she had to admit the signature of her husband on Exh. 4/A therefore she was unreliable and should not be believed so far her evidence on the point of personal bona fide need is concerned. Mere fact that the respondent/landlady denied to have given any permission for additions and alterations in the premises but when confronted to Exh. 4/A, the respondent admitted the signature of her husband on it would not make her entire evidence to be not reliable considering that Exh. 4/A was not signed by the respondent but it was signed by her husband. Mere admitting the signature of her husband on Exh. 4/A would not mean that she had consented to such permission. It is also possible that the respondent's husband might not have informed or intimated about the said No-Objection Certificate dated 30-9-1978 to the respondent considering also the fact that she was cross- examined on 27-7-1986 after about eight years from the date of Exh. 4/A. Learned counsel for appellant/tenant did not care to put any suggestion in the cross to gardar Bashir Ashraf husband of respondent the author of Exh. 4/A as to whether he had intimated or informed the respondent his wife about No-Objection Certificate given to the appellant, therefore, it could not be presumed that she had knowledge of this No-Objection Certificate and she had falsely denied the grant of such permission. Learned counsel for appellant did not say anything about the evidence already on record but his arguments were that in case his application for additional evidence is allowed and the evidence of the respondent is disbelieved in view of her denial of grant of permission then the personal bona fide requirement of the respondent/landlady would stand disproved.
14. ' Before I proceed to examine the evidence on record in respect of bona fide requirement it would be necessary to determine as to whether the application C.M.A. No,731/89 has any merit so as to allow the additional evidence to be admitted. Mr. Khalid Anwar, learned counsel for the appellants, has contended that the said application would fall under Rule 27, Order 41, C.P.C. Read with sub- clause (3) of section 21 of Rent Ordinance for Rule 27 of Order 41, C.P.C.
15. "27. Production of additional evidence in Appellate Court.--(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."
16. ' Sub-clause (3) of section 21 of the Rent Ordinance reads:-- "(3) The appellate authority shall, after perusing the record of the case and giving the parties an opportunity of being heard and, .1 necessary, after making such further enquiry either by himself or by the Controller, make an appropriate order, which shall be final."
17. ' In para. 8 of C.M.A. No,731/89 it has been stated that: "It is necessary in the interest of justice and since substantial cause has been adduced that additional evidence in terms of the above be brought on record. The additional evidence was originally not available."
18. ' In para. 3 of the abovesaid application it has been stated that: "The Managing Director of the appellant Mr. Shah Noor Ahmad has recently made a trip to Dubai on 23-4-1989. While there he had made enquiries at the office of a firm known as Fair Trade and was informed that the respondent's husband Mr. Ashraf was still working as General Manager at the said firm. Mr. Ashraf's telephone number also appears in the 1989 telephone directory of Dubai, UAE as well as in the earlier editions, photostat copies of which have already been filed. In this connection, a photostat copy of the name card of Mr. Ashraf and of the relevant page, namely, page 56 of the telephone directory are being attached herewith marked A-1 and A-2 respectively."
19. ' From the above averment, it would appear that the appellant/tenant's Managing Director made a trip to Dubai on 23-4-1989 after the disposal of the ejectment application on 6-1-1988 and there he made enquiries in respect of whereabouts of respondent's husband when he came to know that he was still working as General Manager at the said firm. There is no reason shown as to why appellant/tenant did not make such attempt prior to the filing of his affidavit-in-evidence when specifically the bona fide requirement of the respondent was denied. The said trip and discovery of new evidence after disposal of the ejectment case would not fall within the purview of substantial cause or would not be in the interest of justice as no one could be permitted to fill up the lacuna left by one party to the disadvantage of another party so as to enable one of the party to the litigation to fill in gaps in the evidence. Discovery of fresh evidence at the later stage is no ground for permitting the additional evidence at this appellate stage in the instant case as the additional evidence sought to be produced was not refused by the learned Rent Controller and no substantial cause has been made out as held by me above. Now there remains the ground whether the Appellate Court itself would require such additional evidence for the pronouncement of judgment.
20. This Court would not require the said photostat copies of documents to be brought as additional evidence for the pronouncement of judgment as the same would not come within the purview of Rule 27 of Order 41, C.P.C. I may also point out that all documents which are submitted to be admitted as additional evidence are photostat copies and not original. First document is the photostat copy of visiting card in the name of respondent's husband designated as General Manager. Second document is the photostat copy of front title page of telephone directory of UAE.
21. Third document is the photostat copy of page 75 of the telephone directory where telephone numbers of Fairtrade Box 6426 have been given. Fourth photostat copy is page 56 of the telephone directory where the name Bashir Ashraf Box, No,6426 is printed. Fifth is the photostat copy of letter dated 13-4-1989 addressed to Shahnoor Ahmad of the appellants fron Joint Secretary, Ministry of Labour, Manpower and Overseas Pakistanis, Manpower Division, wherein it has been stated that Sardar Bashir Ahmad Ashraf was living in Dubai alongwith his wife and children and working with local sponsor Mr. Yousaf Al Hamar, General Manager Fairtrade. Sixth is the photostat copy of telex message from PAREP to Manpower Division, Islamabad. The photostat copies of documents sought to be produced as additional evidence even on merits would not disprove the case of respondent about her bona fide requirement and also as the originals of the same have not been filed with the application considering that photostat copies would not be admissible in evidence unless the case is made out under Article 74 of Qanoon-e-Shahadat and such permission, to lead secondary evidence is granted. I may also state that after perusing the record and proceedings of the case and hearing the learned counsel for parties I do not deem it necessary to allow the said photostat of documents as additional evidence as well under sub-clause (3) of section 21 of the Rent Ordinance considering that the said documents are neither admissible in evidence nor necessary for the disposal of this appeal. I may also point out that no authenticity as to its genuineness could be attached to the said photostat copies filed with the application when the application under Order 41, Rule 27 is not even supported by an affidavit of Mr. Shah Noor Ahmad who is said to have made a trip to Dubai. These documents are of the dates after disposal, of the case, therefore, also irrelevant for the decision of case.
22. ' Reference is made to Dr. M. Murtaza Hussain v. Muhammad Mustafa (1988 SCMR 741) wherein it was observed:-- "The provisions of Order XLI, Rule 27, C.P.C. With regard to production of additional evidence in the Appellate Court are substantially worded differently from subsection (3) of section 21 of the Ordinance of 1979. Consequently the limitations provided in the former provisions cannot be technically and literally imported in the latter provisions. Section 21(3) of the Ordinance vests a discretionary power in the Appellate Authority wherever found necessary to make a further inquiry.
23. Of course the discretion must be exercised judicially and not arbitrarily. There is no limitation to the exercise of the power, namely, that such further inquiry cannot be made to permit evidence or circumstances to come on record which have come into existence after the decision of the Rent Controller. Subsequent events may have such a bearing on the dispute of the parties as to go to its very root and change the very course of litigation or the ends of justice require it to examine the same. Therefore, it would be wrong to say that in no case the Appellate Authority would be competent to hold further inquiry in the light of the subsequent events or facts which have come into existence after the decision of the case in the Court of first instance.
24. ' The only limitation on the power of the Appellate Authority to make a further inquiry at the appellate stage is that after perusing the record of the case and hearing the parties, such further inquiry should be deemed to be necessary.
25. ' In order to make up his mind whether further inquiry is necessary or not, the Appellate Authority has to see the nature of the evidence proposed to be produced by the applicant. If such evidence, whether oral or documentary, is upon a matter irrelevant to the controversy before the Court, it cannot be deemed necessary to reopen the case for additional evidence under section 21(3).
26. ' View that the application for additional evidence was not maintainable and was liable to be rejected on the ground that the evidence sought to be produced had come into existence subsequent to the decision of the case by the Rent Controller cannot be subscribed.
27. ' To allow the roving inquiry into the far-fetched suggestions that, the attempt made to rent out other parts of the building is indicative of the mala fide of the landlord would be wholly unjustified and improper exercise of the power available to the Appellate Authority under section 21(3) of the Ordinance."
28. ' I may also state that the said documents are not relevant as the respondent's husband could not be made to remain in Karachi for indefinite period till decision of ejectment application filed by his wife as everybody would like to have some job to earn his livelihood and in the instant case if husband of the respondent left for Dubai after remaining here in Karachi from 1985 till 1988 as stated by learned counsel for respondent it would not negate the bona fide requirement of the respondent. Reference is made to Fazal Azim and another v. Tariq Mahmood and another (PLD 1982 SC 218) wherein it was observed:-- "The admitted fact that respondent No,1 went abroad cannot by itself be considered as showing lack of bona fides. It has been observed in a number of cases that the landlord seeking eviction on the ground of personal requirement would not sit idle for period of time during the pendency of eviction proceedings. If during such a period he employs himself in a gainful occupation that as a general proposition, would not negate the assertion of bona fide on his part."
29. ' In the circumstances in view of the reasons discussed above and the case-law perused the application under Order 41, Rule 27 read with sub-clause (3) of section 21 of the Rent Act has no merits and is hereby dismissed.
30. ' Now reverting to the main appeal, the respondent in paras. 4 to 7 of ejectment application has stated about her bona fide requirement and same was reiterated by her in her affidavit-in- evidence Exh. 4 and her testimony could not be shaken in the cross-examination. I have already discussed about the contention of the learned counsel for appellants that the respondent should not be believed in view of her evidence where she denied to have granted permission to the appellants but when confronted to Exh. 4/A she had to admit it bore the signature of her husband therefore it would not necessary to reproduce the reasonings given above for believing her evidence. She has produced the relevant documents showing that her husband was no longer working in the company of Fairtrade. In response to that, she also served the appellant with a notice about her requirement in Exh. A/28. Respondent is supported by her husband Sardar Bashir Ahmad in his affidavit-in-evidence and his testimony also could not be shaken so far the requirement of the respondent is concerned. Respondent is also supported by Mujtaba Ashraf and his testimony was also not shattered in the cross-examination. There is only denial on behalf of the appellant/tenant's Managing Director Shah Noor Ahmad about the bona fide need of the respondent/landlady. Nothing has been brought in the cross-examination, which could disentitle the respondent from getting possession of the premises under the law. There is even no suggestion from the appellants that the respondent alongwith her husband and children were still in Dubai.
31. Mere fact that the respondent's husband got temporary employment in Dubai would not, itself, disentitle the respondent from seeking eviction of the appellant under the law though there is no such evidence on record except the photostat copies of D documents which have not been admitted in evidence. The respondent/landlady cannot be deprived of her own property when she has proved her bona fide need in the instant case. In case the respondent/landlady uses the said premises other than for her personal bona fide need the appellants could resort to the remedy provided under section 15(a) of the Rent Ordinance. Accordingly, I do not find substance in the contentions of the learned counsel for appellant. In Syed Abdul Hakim and others v. Ghulam Mohiuddin (PLD 1994 SC 52) case, the appellants filed Ejectment Case No,822/88 against the respondent seeking ejectment on the ground of personal requirement and default, whereas Ejectment Case No,824/88 was filed against Mst. Amatul Qayyum in respect of Shop No,5 on the ground of personal requirement of the appellants Nos.4 and 5 and the both cases were resisted by the tenants and the cases proceeded separately and in Case No,822/88 the appellants and Mst.
32. Amatul Qayyum tenant of Shop No,5 entered into compromise on 11-12-1989 whereby possession of Shop No,5 was given by her to the appellants. Before the respondent could bring the above fact to the notice of Rent Controller, order in the rent case was announced on 18-12-1989 granting ejectment of personal requirement on the ground of personal requirement alone thereafter respondent filed FRA which was allowed by this Court by the learned Single Judge of this Court against which the appeal was preferred to the Hon'ble Supreme Court wherein it was contended by the learned counsel for appellant that personal requirement of the appellant No,1 for Shop No,4 was distinct and independent of the bona fide requirement of appellants Nos.4 and 5 in respect of Shop No,5 and the learned Judge in Chambers was not justified in setting aside the order of the learned Rent Controller and remanding the case and in any case it could not be remanded for decision on the said point to the learned Rent Controller, but either it should have recorded the further evidence itself or it should have remitted the case to the learned Rent Controller for recording evidence and thereafter resubmitting the same to the High Court for decision. Whereupon the Hon'ble Supreme Court held that: "The words ' make an appropriate order' employed in subsection (3) of section 21 of the Ordinance are of significant, they empower the Appellate Court to pass a remand order. However, we may also observe that the Appellate Authority under section 21 of the Ordinance should not remand the case as a matter of course but should address itself to the question, whether the remand of the case in particular case is warranted by the facts thereof."
33. ' In the instant case no such point is involved and there is no cavil to the proposition that appellate authority under section 21 can pass an order of remand if warranted by facts thereof. In the instant case I have already held that further enquiry is not necessary in the instant case considering that the application for producing additional evidence in view of reasons above has no merits on the basis of which remand of case was prayed for. Next case relied upon is Dr. M. Murtaza Hussain v.
34. Muhammad Mustafa (1988 SCMR 741). I have reproduced the case, above and there is no cavil about the proposition that Appellate Authority cannot make further enquiry at the appellate stage after perusing the record of the case and hearing the parties in case further enquiry is deemed to be necessary but in the instant case I have already held that no further enquiry is necessary. In Fazal Hussain v. Mahmood Hussain (1993 MLD 1726) case, this Court allowed the application of landlord for additional evidence observing: "Now, appellate powers are exercisable under section 21 of the Sindh Rented Premises Ordinance, 1979, by this Court without any express restrictions or limitations. There is no room for technicalities in the exercise of such jurisdiction except the rule that where without saying more jurisdiction is conferred on an already established Court, particularly when jurisdiction is so conferred on a superior Court, such Court may take recourse to the procedure it normally follows provided that the larger principle of advancing the remedy and suppressing the mischief is not lost sight of and if justice of cause so desired."
35. ' I have held above that it was not neither in the interest of justice nor there was any substantial cause to allow the appellant/tenant to produce photostat copies of documents as additional evidence and the principle laid down in 1988 SCMR 741 have been followed in the instant case. In Punjab Province v. Rent Controller and others (1988 MLD 641) case, permission to produce lease deed and sanctioned plan of the premises to establish absence of relationship of landlord and tenant was sought to be produced by the tenant which documents were considered though not relevant but essential for just decision of point in controversy between the parties and were not within his knowledge during proceedings before the Rent Controller. The facts of the instant case are distinguishable to the facts of the case cited. In the said reported case documents sought to be produced there was no question of doubt about the authenticity of the same and the same were considered to be essential for just decision of the case whereas in the instant case it has been held by me above that production of the said photostat copies of documents was not necessary for the just decision of the case. In Attiya Badar v. Haji Munshi Khan (1994 CLC 1975) case, learned Judge in Chambers held that: "Mere statement of landlord that he required premises in question in good faith for his use, was not sufficient to establish his requirement, but it must be supported by valid reasons as to how his requirement was genuine."
36. ' There is no dispute about the above proposition laid down in the cited case. In the instant case, the respondent/landlady is supported by her husband Sardar Bashir Ashraf and Mujtaba Ashraf and by documents produced in respect of her bona fide need therefore it could not be said that there is only word or desire of the respondent/landlady in the instant case. In Muhammad Ikramullah and another v. M/s. Asian Packers (1987 MLD 3241) case learned Judge in Chambers held that: "The burden to establish the requirement of section 13(3)(a) of the West Pakistan Urban Rent Restriction Ordinance is squarely on the landlords to establish that he required the premises in good faith for his own occupation or use of his spouse or any of his children."
37. ' In the noted case the respondent/landlady has discharged the burden of proof by filing her own affidavit and subjecting herself to the cross-examination where her testimony could not be shaken so also she has been corroborated by her husband and Mujtaba Ashraf besides other documentary evidence therefore it could not be said that the respondent/landlady has not discharged the burden of proof in respect of her bona fide requirement. The last case cited is M/s. Paramount Hosiery Mills Ltd. v. Syed Mustafa Hyder (PLD 1984 Karachi 143) wherein learned Judge in Chamber observed: "The provision noted above envisages further enquiry by the Appellate Authority or by the Controller. In the instant case it would be more appropriate and in the interest of parties that both parties should be given equal opportunities to produce evidence for or against the proposition. I, therefore, set aside the impugned order and remand the case to the learned VIII-Rent Controller to record further evidence of the parties on the question whether the need is bona fide or mala fide."
38. ' In the instant case it is held by me that it would not be appropriate to allow the photostat copies as additional evidence under section 21, subsection (3) of Rent Ordinance in view of the reasons given above.
39. On appraisal of the evidence on record and the case-law cited by the respective counsel for parties it could be said that the respondent/landlady has proved bona fide requirement in respect of the premises in dispute and the same could not be rebutted by the appellant/tenant and in view of the case-law cited, the respondent/landlady would be entitled to the possession by evicting the appellant/tenant from the premises. Accordingly, in view of the reasons given above the appeal is dismissed and the appellant is directed to hand over the vacant possession of the premises within sixty days to the respondent/landlady.