1986 PLP 333 (CLC)

‑‑‑S. 3‑‑Swearing affidavit‑‑Irregularities‑‑Effect‑‑Irregularities in swearing affidavit, held, was merely irregularity which would not wipe out entire evidence‑‑Deponent submitting himself to cross‑examination on contents of such affidavit would make his evidence worth consideration even if affidavit was excluded from consideration for technical irregularity. (e) Sind Rented Premises Ordinance (XVII of 1979)‑‑ ‑‑‑S. 15‑‑Bona fide personal requirement‑‑Landlord's refusal to exchange ground floor tenancy with first floor, held, would not lack bona fide in circumstances. 1982 C L C 1018 distinguished. Rehmat Elahi for Appellant. Muhammad Abdul Aziz Khan for Respondent. Date of hearing: 10th September, 1985. The respondent filed an ejectment case against the appellant on the ground of her personal bona fide requirement. The respondent pleaded that she is infirm and weak suffering from chronic rheumatism and unable to ‑climb stairs or properly walk. She further pleaded that her husband is an old man of 74 years and is unable to see and walk properly. The appellant denied the claim and pleaded that he is a tenant from December, 1973 at the rate of Rs.700 p.m. which has been increased from time to time and in the month of May, 1982 it was increased to Rs.1,100 p.m. The Controller however granted the ejectment application. Mr. Rehmat Elahi the learned counsel for the appellant has contended that the respondent has failed to establish that she is so old that it is most inconvenient for her to reside upstair and further that the respondent's claim in mala fide. With regard to the first contention the learned counsel stated that no doctor has been produced to establish that the applicant is weak, infirm, and is unable to move or climb upstair. In fact the respondent had filed her own affidavit with the prescription of the doctor and did not examine any other witness. The respondent was cross‑examined on commission for the reason that she was unable to attend the Court. It is not disputed that the respondent is an old lady aged 70 years. The fact that she was examined on commission, in the circumstances of the case, lends support to the fact that the respondent is weak and infirm. This ,fact is independently established from the evidence of the appellant where he stated that he had never seen the respondent doing household work or moving about in the house. He had admitted that at the time of examination the respondent was lying in bed. The statement of the appellant is sufficient to establish the fact that she is unable to walk, climb up or move about. The learned counsel for the appellant contended that if the respondent is unable to move about it is not necessary for her to climb upstairs and therefore, wherever she resides either on the first floor or on the ground floor it makes no difference to her. I am unable to accept this contention of the learned counsel because if a person is ailing and unable to move he/she may be required to be taken in the normal course, for treatment to the hospital. It will be most inconvenient and painful for a patient to be taken from the first floor to the doctor. In these circumstances living on the ground floor will move convenient and comfortable. Furthermore it is not necessary that invalid person may all the time remain confined in a room. She can use wheel chair and have the advantage of using the open space on the ground floor. As invalid person cannot .move about, for his/her proper health it is .necessary that he/she may have sufficient fresh air and sun and may be taken on wheel chair to open space like park and gardens. This exercise is not possible if such a person is living on the first floor. The respondent has also claimed ejectment on the ground of illness and ill‑health of her husband. He had filed his affidavit of evidence but did not appear for cross‑examination. There is no proper and valid evidence to substantiate this plea. The learned counsel for the appellant has attacked bona fide of the respondent mainly on the ground that from May, 1982 she has charged rent at an enhanced rate of Rs.1,100 instead of Rs.1,000 and within three weeks of that she filed an application for ejectment. This fact by itself does not prove lack of bona fide. If the respondent had, demanded further increase and on refusal filed the ejectment application out of spite, there was a room for argument on these lines. As rent had been increased it cannot be said that the ejectment application was filed because she wanted to further increase the rent. In this regard instructive discussion is found in Mumtaz Ahmed v. Mrs. Mumtaz Zohra Rizvi P L D 1978 Kar.

188. The learned counsel then contended that the affidavit was not sworn before the Commissioner and, therefore, the affidavit of evidence cannot be accepted in evidence. Mr. Aziz the learned counsel has referred section 13 of the Oaths Act which provides that irregularities in swearing the affidavit is merely a regularity which will not wipe out the entire evidence. In any event the respondent has been cross‑examined on oath. Even if the affidavit is excluded from consideration for such technical irregularity the statement in cross‑examination can be taken into consideration. The learned counsel for the appellant further contended that as the respondent refused the offer to exchange the ground floor tenancy with the first floor, the claim lacks bona fide, Reference has been made to 1982 C L C 1018. The fact of this case are completely different and the observation relied upon do not apply to the present case. The appeal is dismissed with cost. The appellant should hand over vacant possession to the respondent on or before 31‑1‑1986. A.A. Appeal dismissed.