MUHAMMAD MOOSA K. LAGHARI, J.--- This first Rent Appeal is directed against the order dated 8.9.2001 passed by learned Additional Controller of Rent, Clifton Cantonment, Karachi in Rent Case No. 41 of 2000.
2. Respondent/landlady filed rent case against the appellant /tenant under Section 17 of the Cantonment Rent Restriction Act, 1963, alleging therein that the appellant/tenant made addition and alteration in the demised premises without the consent of respondent, that the appellant/tenant defaulted in the payment of rent and that the respondent/landlady required the demised premises in good faith for her use and that of her family. It was averred that the respondent/landlady and her husband were in advanced age suffering from so many diseases, particularly the respondent/landlady was patient of Ostho Arthritis having pain and swelling in her both the knee joints presently she was residing in a flat situated on 2nd floor having no facility of lift and that she was unable to climb stairs that the flat where the respondent/landlady was residing was not suitable for her and her husband. She has a grown up son of marriageable age but his marriage was being delayed for want of suitable accommodation.
3. The rent case was contested by the appellant/tenant. In his written statement the categorically denied the allegations made against him. The plea of unauthorized 'addition and alteration and the part of the appellant/tenant was categorically denied. It was also denied tiat the appellant/tenant did commit defaulting payment of rent. It was controverted that the respondent/landlady and her husband were of old age and that she was suffering from any disease. It was further pleaded that the respondent/landlady was owner of other property and that, the flat in which she was residing was suitable for her and her family. It was denied that the respondent/landlady needed the property for bona fide use in good faith.
4. Learned Additional Controller of Rent however by consent framed the following issues for his determination:-
(1) Whether the applicant requires the demised premises and in good faith for her own use-and occupation and for the occupation of her family members?
(2) Whether the opponent has impaired the value, look, and utility of the demised premises and has damaged it?
(3) What should the order be?
5. In support the rent application Scellina Nawaz, daughter. And Attorney of the respondent/landlady appeared as witness. Apart from other documents she also placed on record medical certificate concerning Mrs. Nighat Nawaz Butt, the respondent/landlady in which it was stated that she was suffering from Ostho Arthritis which caused pain and swelling in her both knee joints. A. Birth certificate showing the date of birth of Omair Butt s/o Nawaz Butt to be 28.11.1971 was also placed on record.
6. The appellant/tenant himself appeared in evidence and reaffirmed his pleadings. Apart from repeating the averments made in the written-statement the appellant also cited certain past instances to plead that the element of good faith and bona fide requirement were desperately missing in so far as the ejectment of the appellant/tenant was concerned. It was pleaded that the ejectment plea was tainted with malice.
7. On appraisal of the evidence learned Additional Controller of Rent arrived at the conclusion that the applicant/landlord/respondent required the demised premises in good faith for her own use and occupation and for occupation of her family. Accordingly issue No. 1 was decided in affirmative, while issue No. 2 was replied in negative. However, on the basis of findings recorded on issue No. 1 ejectment of the appellant/tenant was ordered. Hence this appeal.
8. Learned counsel for the parties advanced their arguments far and against the impugned judgment.
9. The main contention raised by learned counsel for the appellant/tenant was that the findings recorded by the learned Additional Controller of Rent on issue No. 1 were against the evidence as the plea .Of bona fide requirement was not proved. Neither the respondent/landlady herself appeared in evidence to affirm the plea of her ailment nor the Doctor who issued medical certificate was tendered in evidence. It was argued that the daughter/attorney of the landlady who was tendered in evidence denied the suggestion that the landlady was old and/or was suffering from any disease. She also denied that the landlady could not climb the stairs.
Alternatively, it was vehemently contended that the cross-examination was not recorded in accordance with the principles of law/rules, as such the judgment based on such evidence was not sustainable. The same be set-aside and the matter be remanded to proceed afresh.
10. On the other hand learned counsel for the respondent/landlady supported the impugned judgment. He contended that it was not necessary that in all circumstances landlady herself should appear in the witness-box. He next contended that the landlady was entitled to use her property without any restraint. It was argued that the need/choice of the landlady was not to be judged by the tenant. It was further argued that the evidence with regard to the marriageable age of the son of landlady was not satisfactorily rebutted. Production of the Doctor in evidence was not necessary. It was lastly contended that the landlady was not required to prove her inability to climb stairs.
To support his contentions learned counsel for appellant/tenant also placed reliance on numerous citations.
11. Arguments advanced at the bar have been considered in juxtaposition of the case-law relied upon by the learned counsel for the parties. The R&Ps have been scrutinized, and the evidence available on record has been examined with the assistance of learned counsel for the parties.
12. In para. 9 of the rent application it has been specifically asserted that the applicant and her husband are of old age and suffering from many diseases, particularly applicant is patient of Ostho Arthritis having pain and swelling in her both knee joints, she could not climb stairs, she was presently residing in a flat which apart from being unsuitable for her use and that of her family was situated on 2nd floor of a building having no facility of lift and that she cannot climb stairs which was adversely affecting her health. In para. 11 of the rent application it was averred that the son of the applicant was grown up and was of marriageable age and that his marriage was being delayed for want of accommodation as he would need privacy which could not be made available to him in' the present accommodation. Alongwith rent application photocopy of medical certificate affirming the deficiency of Ostho Arthritis was also annexed.
Same pleadings have been affirmed in the affidavit in-evidence of PW Scellina Nawaz who is the daughter/attorney of the respondent/landlady and was tendered in evidence on her behalf.
13. But it was quite unappealing to note that in the type cross-examination of the daughter and attorney of the respondent/landlady it has been mentioned that, "it is learned Additional Controller of Rent on any page including the concluding page, though it consists of as many as 19 pages. The manner in which the cross-examination was recorded has rendered the same to be worthless.
Deciding the case merely relying upon such evidence would be highly unsafe, unjustified rather illegal as no sanctity could be attached to such type of cross -examination. Cross-examination of the petitioner/opponent/tenant was recorded in Urdu language. However, there are no cuttings and over writings and each page of the same is signed by the petitioner/tenant. To say the least learned Additional Controller of Rent proceeded with the case in highly irresponsible manner, so far as recording of cross-examination of applicant/landlady's witness was concerned.
14. It had been the consistent view of superior Courts that the causes should be decided on merits and that multiplicity of the litigation should be avoided. As far as practicable possibilities must be explored to minimize the litigation. The purpose is to reduce the miseries of litigant public. Keeping this in view, the legislature in it's own wisdom has made a provision in law for ordering further inquiry in the matter by the Appellate Court, if the facts and circumstances of the case so warrant.
15. In the circumstances, I have formed a view that in order to arrive at a just, fair and valid conclusion further inquiry is needed in the matter as contemplated under sub-section (3) of Section 21 of the Cantonment Rent Restriction Act, 1963. For this purpose evidence of respondent/landlady has to be recorded. It is so ordered.
Record and proceedings of the case shall immediately be remitted to the learned Additional Controller of Rents, Clifton Cantonment, Karachi, alongwith a copy of this order.
Learned Rent Controller/Additional Controller of Rent, shall record additional evidence viz. Evidence of the respondent/landlady and resulting the R&Ps of the case within a period of 20 days from the date of receipt of copy of this order for final adjudication of this appeal by this Court.
Needless to say that the evidence of the landlady can be not recorded on commission, if in case such application is preferred before the Rent Controller/Additional Controller of Rent on the ground of landlady inability to appear before him owing to her ailment, physical deficiency or infirmity.
Before parting with the judgment it must be stated that the case-law relied upon by both the parties was anxiously considered. Relevant case-law was kept in view while passing this judgment, however, detailed discussion thereof was not deemed prudent in the given circumstances, as, it may prejudice the case of either party at the final adjudication. .