1988 PLP 741 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.‑‑This appeal by leave arises out of judgment dated 17th December, 1985, by a learned Single Judge of the Sind High Court dismissing the appeal of the appellant and upholding the order of eviction passed against him.

2. The facts are that the appellant is the tenant of the respondent in respect of commercial premises on the ground floor of a building in Karimabad, Karachi, where he is running Homeopathic Clinic. In March, 1981, respondent filed ejectment application on the ground that he required the aforesaid premises for extension of his hotel business. The appellant contested the plea of the respondent and challenged the same as mala fide. By an order, dated 22nd October, 1983, the learned Rent Controller accepted the application of the respondent and directed the appellant to hand over the possession of the premises to him.

3. Being aggrieved the appellant filed an appeal before the Sind High Court and pending the decision of the appeal, he submitted an application for summoning witnesses on the ground that the respondent had put an advertisement in the daily newspaper 'Jang' for letting out the disputed premises to another tenant. Subsequently he made another application praying the appellate Court to hold further inquiry and examine evidence under section 21(3) of the Sind Rented Premises Ordinance, 1979. The ground sought in support of this prayer was the fact alleged that the respondent after the order of ejectment had entered into correspondence with the Karachi Lubricants Limited to let out the other shop/show room in occupation of his son, which is adjacent to the demised shop. Before the Rent Controller the defence of the appellant was that the respondent was in occupation of the aforesaid adjacent shop, which was sufficient for extension of his business. The learned Single Judge after taking into consideration case law on Order 41, Rule 27, C.P. C. came to the conclusion that no case for further inquiry or for additional evidence was made out, because the evidence sought to be brought on record was not in existence at the time the proceedings were pending before the Rent Controller. He, therefore, rejected the request of the appellant and upheld the order of eviction passed against him by the impugned judgment.

4. Leave was granted to examine the correctness of the view taken by the learned Single Judge to the effect that further inquiry under section 21(3) of the Sind Rented Premises Ordinance, 1979, cannot be made by the High Court at the instance of a party to the appeal if evidence that is proposed to be produced comes into existence after the decision of the Rent Controller.

5. Section 21(3) of the said Ordinance empowers the appellate Court to hold further inquiry in the following terms:‑ "The appellate authority shall, after perusing the record of the case and giving the parties an opportunity of being heard and. if necessary, after making such further inquiry either by himself or by the Controller, make an appropriate order, which shall be final." On a plain reading of the aforesaid provision it appears to us that 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.

6. We have carefully read the impugned judgment and find that the learned Judge after having correctly laid down the scope of the above provisions, went on to examine the nature of the additional evidence sought to be produced in the inquiry prayed for by the tenant. While holding that further inquiry was not necessary the learned Judge observed:‑ "I do so for the obvious reason that evidence sought to be produced was not in existence at the time when the impugned order of ejectment was passed by the learned Rent Controller. Admittedly evidence proposed to be produced has come into existence after the passing of impugned order and filing of appeal against it. There is no dispute about this fact because it is unequivocally admitted in the first application which is filed by the tenant for additional evidence during the pendency of the appeal. He has stated so specifically that evidence sought to be produced has come into existence after filing of the above appeal. Secondly the words used in section 21(3) of the said Ordinance are that the Appellate Authority after perusing the record of the case and giving the parties an opportunity of being heard .Here the record means the record available before the Appellate Authority upto the stage of impugned order against which appeal has been filed. This necessarily means record of the trial Court which has passed the impugned order. Documents sought to be produced in additional evidence admittedly were not in existence at the time when the impugned order was passed, as such these documents are outside the scope of the record which is to be perused by the Appellate Authority. These documents are irrelevant because they were not in existence at the time when the impugned order was passed. Only those documents could be considered which were in existence and which could not be produced, due to some reason and had they been produced, they would have changed or influenced the findings of the trial Court one way or the other." Further he observed: "In my opinion scope of further enquiry as contemplated in section 21(3) of the said Ordinance is well‑defined and the requirements specified therein are to be followed in letter and spirit. Appellate Authority has been given ample discretion to make such order for further enquiry if it is found necessary after perusing the record and hearing the parties. It is very clear that nothing can be added to the record which was not in existence at the time when the impugned order was passed." The conclusion was recorded by the learned Judge in the following words:‑ In the light of legal position discussed above, I hold that applications filed in the present case for additional evidence have no legal cover for the reason that documents sought to be produced were not in existence at the time when impugned order was passed. I, therefore, dismiss both applications."

7. Mr. Abdul Hafeez Lakho, learned counsel appearing for the respondent did not support the view taken by the learned Judge on the legal plane and we agree with him. It may be observed that 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) vests a discretionary power in the appellate authority wherever found necessary to make a further inquiry. Of course the discretion must be exercised judicially and not arbitrarily. However, we are unable to read in the provisions the limitation imposed by the learned Judge on the legal plane, 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. It is not difficult to visualize that 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, we cannot subscribe to the view 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. The correct position has been laid down by this Court in the case of Haji Ibrahim v. S. Rehmatullah 1985 S C M R 241, in the following observations: "These general principles of law, viz. the vesting of the property rights. i.e. of the estate of the deceased in the legal heirs, and the need to give certainty and finality to adjudications by reference to the date of institution of the proceedings and its hearing are controlled by yet another principle, that in appropriate cases an appellate Court may mould the relief according to the changed or altered circumstances, on facts or law. This last overriding principle finds statutory recognition in sections 107 and 151, Order VII, Rule 7, Order XLI, Rule 27 of Civil Procedure Code, section 15 of Urban Rent Restriction Ordinance. 1959 and section 21 of Sind Rented Premises Ordinance, 1979. It finds recognition as a principle of equity in the words that follow:‑ "A decree in equity generally operates on the parties and subject‑matter as they stood at the commencement of the suit but it does so only to observe the ends of justice, and where a radical change in the ultimate rights of the parties has been brought about by the passing of time and knowledge of this change is judicially before the Court or is brought in by appropriate pleading, its decree is addressed to the rights existing, not at the commencement, but at the time of determination of the suit or date of the decree provided there was sufficient foundation for the suit when it was commenced and such relief is pertinent to that sought by the bill, and provided further it would be equitable and just to recognize the intervening rights." For these reasons we regret our inability to subscribe to the view that the appellant's 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. However, this does not dispose of the matter under consideration before us.

8. In order to make up his mind whether further inquiry is necessary or not, it is obvious that 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). With this object we have examined the evidence sought to be produced with the help of the learned counsel. In the first application the appellant requested for calling the General Manager, Karachi Lubricants Limited to produce letters written by the respondent for letting out shop No.2 on the ground floor in connection with which the respondent is alleged to have written letters to the said firm to negotiate the terms of tenancy. This allegation was denied by tag responding in his counter‑affidavit who asserted that he had neither negotiated with that firm for letting out the said shop nor had he put an advertisement in the newspaper '.Jang'. He also maintained that the said shop does not belong to him but to his son. In the second application the respondent requested for summoning Mr. Javed Hussain Wasim of the Beg Estates and the Manager advertisement from the office of daily 'fang'. Mr. Javed Hussain Wasim filed his affidavit in support of this application saying that he had seen the advertisement in the newspaper and had negotiations with the respondent on behalf of the Karachi Lubricants Limited and has produced a letter of the respondent dated 24th April, 1984. This letter indicates that the respondent was prepared to let out the premises on the first floor but as regards the ground floor on partner ship basis. These allegations were also denied by the respondent in a further counter affidavit. He has also denied the averments made in the affidavit of Mr. Dada Bhai of the Karachi Lubricants Limited. The respondent explained in his affidavit that the first floor was in possession of Dawn College whose application for registration was rejected in the year 1984 and in support of which the documentary evidence was filed. He has produced the letter of Mr. Pasha who was running the Dawn College for Girls stating that he would vacate the first floor in his possession by June, 1985.

9. In view of all the above materials Mr. Abdul Hafeez Lakho emphatically contended that the proposed evidence was not relevant or germane to the main controversy between the parties in the case, in that, the same did not relate to the disputed premises for which eviction order was passed. So far as shop No.2 is concerned it was submitted by the learned counsel that this shop belongs to Shahid Jamal another son of the respondent, whereas respondent and his son Umer Hayat required the premises in dispute for extension of their business. Therefore, it is quite clear that the evidence did not pertain to the disputed premises but to the shop of Shahid Jamal. The learned Rent Controller also reached the finding that the respon dent and his son Umer Hayat were running the hotel business in a small space which was not sufficient for them and accordingly their requirement of the disputed premises was genuine. He also found that the other shop belonged to Shahid Jamal in which he had separate business, with whom the respondent and Umer Hayat had no concern. As mentioned above the proposed evidence even if believed would have at best proved that there was an abortive attempt to rent out the upper floor and the shop of Shahid Jamal. which are different premises from the one in dispute in the present case. 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 respondent would be wholly unjustified and improper exercise of the power available to the appellate authority under section 21(3) of the Ordinance. The learned counsel for the appellant was unable to convince us that the proposed evidence would be a proper basis for such an inquiry.

10. In the result except on the legal question as discussed above, we agree with the order passed by the learned Single Judge in which he also considered the relevancy and the nature of the proposed evidence and dismissed the application of the appellant. This appeal, therefore, fails and is accordingly dismissed. M. B. A. /M‑369/S Appeal dismissed.