IN THE HIGH COURT OF SINDH, KARACHI

Const. Petition No. S - 337 of 2012

Muhammad Yousuf….……..……………………..……………….….Petitioner

Versus

Mst. Rashida Begum and 02 others..………………………......Respondents

Date of Hearing:- 25.02.2017

Mr. Muhammad Sadiq Hidayatullah, advocate for the petitioner

Mr. Muhammad Arif Khan, advocate for the respondent No.1

J U D G M E N T

FAHIM AHMED SIDDIQUI, J: Through the instant petition, the petitioner assailed the impugned judgment dated 23-01-2012 passed by learned Additional District Judge-IV, Karachi West as well as the order dated 30-09-2011 passed by learned Rent Controller-II, Karachi West.

2. The facts of the case, in a nutshell, are that the respondent is the owner of a building known as Nazir Shopping Centre, Sector 5-G, Chandni Chowk, Saeedabad, Baldia Town, Karachi. The petitioner is her tenant in respect of Shop No. 16 situated in the same building on the monthly rent of Rs.400/-. As per pleadings of the respondent, the petitioner has paid rent to the respondent up to December 2005 under receipts issued to him. After that, the petitioner did not pay rent and committed willful default in the payment of rent with effect from January 2006. Resultantly, a substantial amount of Rs.12,400/- is accumulated and outstanding against the petitioner. The respondent also alleged that the petitioner had been utilizing electricity in the three shops bearing Nos. 9, 16 and 21 without payment of electricity dues since November 2006. As such, an amount of arrears of electricity charges i.e. about Rs. 6900/- is also payable by the petitioner and he also committed a willful default in the payment of electricity dues. She further pleaded that the petitioner also committed default in the payment of his share of water, sewerage, conservancy and fire charges @ Rs. 1080/- per annum since January 2006. In these circumstances, the respondent served a legal notice dated 29-10-2007 upon the petitioner intimating him about all the above said defaults. In his response to the said legal notice, the petitioner pleaded that the respondent had already received excess rent in respect of shop in question during his stay abroad. The respondent in her rent application asked for vacant and peaceful possession of the shop in question on the ground of default in the payment of rent and electricity charges etc.

3. The petitioner filed his written statement in which he denied all the allegations levelled against him. In his written statement, he also questioned the status of the respondent as the owner of demised premises as she failed to file the proof of ownership after the death of her husband. He also pleaded in written statement that the deceased husband of respondent rented out the shop in question to him on the goodwill basis for a fixed rent of Rs. 200/- per month which he had been paying to him in his lifetime. After his death, he is paying rent regularly to the respondent. The petitioner also alleged in written statement that the respondent received some excess rent of the said shop from his family member i.e. his brother Siraj Ahmed during his absence from Pakistan. The petitioner further alleged in written statement that after his return to Pakistan, he met with the respondent, who allowed him to adjust the excess rent in future rent; in this way, he had paid advance rent @ Rs. 200/- up to April 2009. Regarding electricity charges, the petitioner took a plea that there was no default as he had been paying bills directly to KESC. The contention of the petitioner about water charges is that he is not responsible for the same as there is no water connection in his shop.

4. After filing written statement, the parties filed their respective affidavits-in-evidence mainly based upon their pleadings. They have gone through the test of cross-examination. After recording of the evidence, the learned Rent Controller settled the issues for adjudication of the dispute between the parties and allowed the ejectment application.

5. The learned counsel for the petitioner preferred his submission at length. According to him, the learned Rent Controller recorded the evidence of the parties without oath which is a fatal mistake in this case. His contention is that evidence without oath is no evidence at all. He submitted that this error is not curable as such the matter is required to be remanded back to the learned Rent Controller. In this respect, he took reliance from 1988 PCrLJ 2347, 1990 MLD 538, 1991 MLD 48, PLD 2010 FSC 221 and 2011 YLR 1731. He also addressed the court regarding merits of the case. He submitted that the rent was Rs. 200/- but in the absence of the petitioner, the attorney of respondent charged exorbitant rent @ Rs. 400/- per month, but on the complaint of the petitioner, the landlady agreed to charge the actual rent and allowed to adjust the excessive amount in the monthly rent. He pointed out certain contradictions in the pleadings and submitted that the respondent could not deny the undertaking given by her husband. Per him, the attorney for the respondent is not the landlord and he is not a competent witness as the affairs are not in his personal knowledge and what he has deposed is a hearsay evidence. According to him, the attorney in witness box admitted that the petitioner entered in tenancy in 1990/1991, but he accepted that 'undertaking' and some other things came into his knowledge through his mother-in-law (the respondent/landlady). He further submitted that in the instant matter, the proper witness of affairs is the respondent (landlady) as such she should come into the witness box to face cross-examination. He also pointed out that the learned Rent Controller used the evidence recorded in one rent case into the other rent case as in all cases entire testimony is verbatim the same except some changes in respect of shop number etc. According to him, shifting of evidence of one proceeding to other is not allowed. Therefore, it will be justified to remand all the rent cases to initial forum for retrial. He also pointed out that the learned Rent Controller erred in holding about non-production of original money order and receipt during the examination of petitioner. According to him, it is available in the deposition form that the original documents were seen and returned, as such, there is misreading or non-reading of evidence also. Per him, in the case of a defect in cross-examination, the rent case is required to be remanded back, and in this respect, he took reliance from 1987 CLC 1407, 2001 CLC 468, 2003 MLD 1033 and 2008 SCMR 350.

6. In contrast to above, the learned counsel for the respondent submitted that there was no illegality or irregularity in the entire trial before the learned Rent Controller. Regarding the recording of evidence, his contention is that the learned Rent Controller administered the oath to witnesses but he overlooked to mention it in the deposition form. According to him, if we consider it for argument's sake that the learned Rent Controller recorded evidence without oath then this mistake of the court would not render the entire evidence inadmissible as per the provision of Section 13 of Oath Act. He further submitted that the point of the oath was neither taken by the petitioner before the learned Rent Controller nor before the Appellate Court. According to him, a new point cannot be raised at this stage. Regarding this aspect of the case, he relied upon PLD 1997 Supreme Court 559, NLR 1997 Civil 24 and PLJ 1998 Lahore 1525. He submitted that the learned Rent Controller decided the rent case on merit, therefore, no question of remand for retrial arose. According to him, a rent receipt is produced in which rent is mentioned as Rs.400/- and the same is signed by the attorney as a rent collector. Regarding undertaking, his contention is that the same is irrelevant as it pertains to Goodwill which is not legal. He pointed out that it has come on the record that the rent was enhanced in the year 2002. The last receipt of Rs.400/- pertains to December 2005, and the same is not denied but admitted in a twisted style. According to him, no concrete proof is produced before the learned Rent Controller that the rent was tendered through money order as the Postman was not examined. He submitted that the learned Rent Controller rightly found the petitioner responsible for default in rent as well as in electricity charges. He denied that the learned Rent Controller has adopted or shifted the evidence of one rent case into other cases. He took reliance from 1992 CLC 2495.

7. After hearing the arguments, I have scanned the available record in the light of the worthy submissions of the learned members of the Bar. In the instant matter, there are concurrent findings of the two courts below in respect of default in payment of rent. The learned Rent Controller has allowed the eviction application on the ground of willful default in the payment of rent. The learned Appellate Court also reached to the conclusion that the appellant has committed default in the payment of electricity charges. The learned Appellate Court while disposing of FRA, has formulated a single point regarding the merit of the case through which the learned Appellate Judge tried to trace out any error or illegality in the order of the learned Rent Controller. After a detailed discussion, he also came to the conclusion that the order of learned Tribunal is correct and does not require any interference. But the learned Additional District Judge opined that the learned Rent Controller has reached to an improper conclusion regarding default in electricity charges. The learned Additional District Judge has rightly come to the conclusion that there is no default in payment of electricity charges as respondent could not produce any document or other evidence in this respect before the learned Rent Controller. In fact, the document, he has produced, is supporting the contention of respondent regarding regular payment of electricity bills. However, it will not be proper to reopen the factual controversy in writ jurisdiction. In this respect reliance, may be taken from a case of Hon’ble Supreme Court reported as Shakeel Ahmed and another v. Muhammad Tariq Fargo and others (2010 SCMR 1925) wherein it is held that:

"We have carefully perused the impugned judgment passed by the learned Single Judge in chambers of High Court of Sindh and seen that not only the said judgment is outcome of misreading and non-reading of evidence, but also the learned single Judge in chambers failed to appreciate, that jurisdiction under Article 199 of the Constitution cannot be invoked as substitute of another appeal against the order of the Appellate Court. Therefore, mere fact that upon perusal of evidence, High Court came to another conclusion would not furnish a valid ground for interference in the order of the Appellate Court, which is final authority in the hierarchy of rent laws i.e. Sindh Rented Premises Ordinance, 1979."

8. The learned counsel for the petitioner assailed the findings of both the forums below on the ground that the same are patently illegal as such not sustainable under the law. According to him, the order of learned Rent Controller is illegal because the deposition recorded without an oath and the cross is conducted once and shifted/used in all other cases. As it is the main objection of the learned counsel for the petitioner, therefore, I would address the same at some length. Regarding non-administration of the oath, the contention of the learned counsel for the petitioner is that the deposition form is silent about administering the oath. I have also gone through the cross-examination and found that nothing is mentioned about administering of oath to the witness entered into the witness box. It is a usual practice in the trial court that as soon as a witness entered in the witness box, an official of court administer prescribed oath to the witness in presence of the Presiding Officer. As it is a routine practice, therefore, the strong presumption is attached to the proceedings before the learned Rent Controller that the oath was accordingly administered. However, if it is considered that the witness has not taken an oath even then it would not depreciate or nullify the evidence recorded before the learned Rent Controller. According to the provisions of Oath Act, 1873, it is obligatory for a Court or Tribunal to administer an oath to a witness before recording his evidence. However, the sanctity of evidence, recorded without the oath, is not shaken as provided under Section 13 of the Oath Act, which is reproduced as under: -

"13. Proceeding and evidence not invalidated by omission of oath or irregularity. — 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 the form in which any 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."

From the above statutory provision, it is clear that due to any reason if witnesses are examined without administering the oath, their evidence will remain admissible under the law. After a clear-cut statutory direction, there remains no need to seek further guidance in this respect. The learned counsel for the petitioner relied upon several case laws in this regard, amongst them, some have no nexus with the case in hand. However, the issue of recording evidence without oath has already been settled by the Hon’ble Supreme Court by referring section 13 of the Oath Act in the case reported as Sajjad Ahmed v. The State (1992 SCMR 416), wherein it is held as under:

"The objection that evidence of the P.Ws. was not recorded by the learned trial Judge on oath is not such a fatal flaw which may vitiate the whole trial and as such is repelled. The irregularity is certainly curable under section 13 of the Oaths Act, 1873."

The Hon'ble Apex Court again espoused the same view in the case reported as Muhammad Aslam and others v. The State (1999 SCMR 845).

9. The other legal objection raised by the learned counsel for the petitioner is that the deposition of one case has been used in the other case. According to him, the evidence recorded by the trial court in one case is at verbatim available in other rent cases filed by the respondent. The learned counsel for the petitioner did not substantiate his claim by placing any material or referring any such case. I have gone through the deposition available in different constitutional petitions filed by the same parties and heard today. I found that the witnesses have appeared for evidence on various dates in different cases decided by the trial Court. The evidence recorded is also not identical but as the cases are similar in nature, therefore, crux of evidence may be same but not the words. Besides, no such objection was raised by the petitioner before the Tribunal or the Appellate forum.

10. The upshot of the above discussion is that I did not find any illegality nor any material defect in the finding of both the courts below regarding material points, as such there is no need to interfere in the same under writ jurisdiction. Resultantly, the instant petition is dismissed with no order as to cost.

J U D G E