1969 PLP 701 (SCMR)

ABDUS SATTAR, J.‑This appeal by special leave arises out of a suit brought by the appellant against the respondent for a declaration that the order of the Chief Judge, Small Causes Court, Karachi, setting aside an order of the Rent Controller fixing Rs. 7 per month as fair rent in respect of a shop in occupation of the appellant under the respondent was illegal ultra vires null and void. The appellant filed an application under section 4 of the Karachi Rent Restriction Act, 1953 for fixation of rent of a shop in respect of which he claimed to be a tenant under the respondent at monthly rent of Rs.

20. His case was that a wooden cabin which was placed in front of the shop in question was let out to him by the respondent at a monthly rent of Rs.

20. After promulgation of Martial Law the respondent permitted him to place the said wooden cabin inside former's shop and agreed to charge the same rent of Rs. 20 per month. The respondent denied that the appellant was tenant in respect of the said shop. His case was that the appellant was a tenant only of the wooden structure which he had allowed the appellant to place temporarily inside the shop. The respondent during the proceedings offered that if the appellant took a special oath on the question of his tenancy, he would accept him as his tenant. The appellant initially declined to do that but ultimately took special oath. The Rent Controller, on the basis of the statement on special oath and his evidence, fixed the fair rent of the shop at Rs. 7 per month. On revision, the Chief Judge, Small Causes Court, Karachi, set aside the order of the Rent Controller on the ground that the Rent Controller had erred in appreciating the evidence by relying "only on uncorroborated word". The appellant then filed the suit as already stated and obtained a decree which was affirmed on appeal. In the Second Appeal preferred by the respondent, a learned Single Judge of the High Court, however, took the view that the suit was not maintainable by reason of the provision of section 17 of the Karachi Restriction Act, 1953, which barred the jurisdiction of the Civil Court. Leave to appeal was granted to consider whether the order of the Chief Judge was a nullity in the eye of law and therefore without jurisdiction as he had decided the case without taking into consideration section f 1 of the Oaths Act, 1873, which provided that any issue decided upon a special oath was to be conclusive proof of the matter stated. The only document which has been placed on the record to prove that the appellant took special oath on the prayer of the respondent is the order of the Rent Controller dated the 4th March 1959. It reads as follows:‑ "Parties and their Advocates present. The opponent's Advocate moved an application for special oath for deciding out case but the applicant's Advocate object to it. Evidence of the opponent witnesses recorded who closes his evidence. At this stage the applicant showed his willingness to take special oath. He took special oath and said that the cabin was given to him not for 2 or 3 days but permanently on rent". Case is adjourned for applicant's evidence to 26‑3‑59 at 11‑30 a.m." No other document has been produced by the appellant to show ‑that the statement made by him on special oath was recorded in a narrative form. The appellant was examined by the Rent Controller on the 26th March 1959 and in that statement he ‑claimed to be a tenant in respect of the shop in question. The dispute between the parties in this case was whether the appellant after the removal of the cabin inside the shop became .a tenant of the shop. That the cabin was given to him on rent permanently was not disputed. It is, therefore, evident that what is to be gathered from the order dated the 4th March 1959, is that the special oath was taken in respect of the wooden cabin and not the shop. The application which was filed by the respondent for administration of special oath is not .on the record, and therefore, it is difficult to say that the respondent wanted him to take special oath in respect of the cabin. Furthermore, as the tenancy of the cabin was not in dispute, it was natural that the respondent had prayed for administration of special oath in respect of the shop but the appellant did not make any statement on special oath in regard to the same. The learned Chief Judge, Small Causes Court Karachi, therefore, rightly took the view that the only proof of the tenancy in respect of the shop was the uncorroborated word of the appellant, Nabi Ahmad. The learned Chief Judge .also came to the conclusion that the respondent bad permitted Nabi Ahmad to take shelter in his shop for a few days and taking advantage of this kindness he made an application to the Rent Controller for fixation of fair rent of the shop. It is on the basis of these findings that he set aside the order of the Rent Controller. As there is nothing to show that the appellant A on special oath had asserted that he was a tenant in respect ,of the shop, the provisions of section 11 of the Oaths Act were not attracted to the proceedings before the Chief Judge, Small Causes Court. We are, therefore, unable to hold that his order was null and void and was, therefore, without jurisdiction. The suit filed by the appellant has been rightly found to be not maintainable. The appeal, therefore, is dismissed but having regards to the facts of this case there will be no order as to costs. Appeal dismissed.