P L D 1986 Karachi 199 (PLP)

I have examined all these documents and feel that the important question is not whether these documents are forged or genuine but whether under the provisions of Sind Rented Premises Ordinance, 1979, request for. additional evidence can be allowed or not. In this context relevant section is 21(3) of the aid Ordinance. It authorises the Appellant Authority to peruse the record of the case and to give opportunity of hearing to the parties and if necessary make further enquiry himself or direct the Controller to do so after which pass a final order. Scope in this respect is very well‑defined and after perusing the record and hearing the learned Advocates for the parties, I do not find it necessary to grant the request of allowing additional evidence. 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 ha come into existence after the passing of impugned order and filing o 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 word used in section 21(3) of the said Ordinance 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 up to 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 i s 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 these documents could be considered which were in existence and which could not be produced due to some reason and if they had been produced, they would have changed or influenced the finding of the trial Court one way or the other. Mr. Rehmani argued that scope contemplated in section 21(3) of the said Ordinance is wider than scope contemplated under Order XU, rule 27, C. P. C. as such Appellate Authority can allow recording of additional evidence which was not in existence at the time when the impugned order was passed. According to the learned counsel Order XLI, rule 27, C. P. C. is prohibitory in nature and imposes condition that parties shall not be allowed to produce additional evidence whether oral or documentary in the Appellate Court but can do so only when the trial Court has refused to admit evidence which ought to have been admitted or when the Appellate Court requires any document to be produced or witness to be examined to enable it to pronounce judgment or for any other substantial curie. 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. Another aspect of the case is that ejectment has been granted by the trial Court on the ground of personal need. Additional evidence proposed to be produced is to show that intention of the landlord was not bona fide and after obtaining ejectment, he was demonstrating the fact that the other shop in occupation of his son as clamed by him was to his occupa tion which he wanted to let out as such he played a fraud on the Court of Rent Controller. Now this does not show that the landlord wanted to let out demised premises because if he did so then he exposes himself to the penalty of fine which shall not exceed one year's rent as contemplated under section 15‑A of the said Ordinance. Tenant can invoke this section for remedy only when landlord has re‑let the premises having obtained the same on the ground of personal need. In this case plea of the tenant C is that he had taken the defence before the Rent Controller that landlord could not take the demised premises on the ground of personal need for the reason that he was already in occupation of a similar shop, which far the landlord denied saying that shop was not in his occupation but in the occupation of his son Shahid Jamal and after obtaining ejectment from the Rent Controller landlord has started negotiating letting out of that shop to other persons, which shows bad faith and mala fides. I am afraid that this would not advance the case of the tenant for the reason that the alleged acts imputed to the landlord acquired existence after the impugned order was passed. If these acts had preceded the passing of the impugned order, the facts would have been different and it could have been said that there was substance in the grievance of the tenant. In support of the proposition that wider scope is available under section 21(3) of the said Ordinance for allowing of evidence to be produced which was not in existence at the time when impugned order was passed, Mr. Rehmani has cited few cases. First case is of Messrs Paramount Hosiery Mills Ltd , Karachi v. Syed Mustafa Hyder (P I D 1994 Kar 141). In this case judgment is written by me. Case was remanded for further enquiry on the ground that it would be more , appropriate if both parties were given equal opportunity to produce evidence for or against the proposition. During pendency of appeal tenant applied for producing additional evidence on the plea that he came to know subsequently that landlord has filed another application for ejectment in respect of another premises in the same area for similar use of his sons, which fact was concealed by the landlord in the case under appeal showing his mala fides. It would be appropriate to mention here that reported case is distinguishable for the reason that evidence proposed to be produced was already in existence and was concealed from the trial Court. Second case cited is of Rehmatullah v. Fateh Muhammad (1980 C L C 1002) Incidently in this case also judgment is written by me. This was a rent case under the provisions of previous rent law i. e. West. Pakistan Urban Rent Restriction Ordinance, 1959. It was IInd appeal in the High Court which was allowed and the case was remanded for the reason that vital documents which were in existence were concealed and not produced before the trial Court. Last two cases cited are Mustaq Ahmed v. Messrs Mumtaz Zohra Rizvi (P L D 1978 Kar. 188) and Muhammad Younus v. Dr. S. Muzammil Ali (1981 C L C 327), which are both on the point of bona fides or mala fides in respect of personal need. Reported cases cited above by Mr. Rehmani do not support his argument that documents not in existence at the time when impugned order was passed could be allowed to be produced by way of additional evidence because they are co‑related to the defence put up in the lower Court. Mr. Rehmani feebly argued next that subsequent events can be divided into two parts. Firstly legal events and secondly factual events and further both can be taken note of in subsequent proceedings even at the belated stage of IInd appeal in the High Court, or appeal in the Supreme Court. In support of this argument he cited from Indian jurisdiction case of Meenakshi Ammal v. P. S. Muthukrishna Chettiar (A I R 1961 Mad. 380). It was held in that case that there is no invariable or inflexible rule that subsequent events should never be taken into consideration or that they should always be taken into consideration by the Court at the appellate stage. Each case must depend upon the peculiar circumstances present in the case sub judice. The point which fell for consideration in the reported case was whether under Hindu law consent decree of separate maintenance would automatically be extinguished by the mere fact that after the decree the husband and wife had sexual intercourse, though the wife continued to live apart from the husband. Next case cited is of Abdul Hameed v. Abdul Ghani (1983 C L C 1022). It is held, "I am inclined to take the view that this Court sitting in second appeal is competent to take into account subsequent events, which may affect the result of the appeal. If the finding is recorded by the learned Civil Judge in the aforesaid Suit dismissed in favour of the respondent would have constituted a res judicata against him, 1 would have decided the above appeal after taking into consideration the aforesaid fact". Relevant facts in the reported case are that the landlord filed a rent case on the ground of default. Tenant pleaded that be was not the tenant but himself owner by virtue of sale agreement. Preliminary issue Has framed and decided against the tenant, who filed appeal which was dismissed. Rent Controller then passed tentative rent order which was not complied with by the tenant and his defence was struck off. Against that order tenant filed first appeal which was dismissed resulting into filing of second appeal by the tenant. Point was urged by the counsel of tenant in second appeal that a suit for specific perform ance of the alleged sale agreement was filed by the tenant which was dismissed by the learned Civil Judge but a finding was given therein in respect of tenement in question in favour of the tenant. It was urged that finding was binding on the Rent Controller as well as the High Court. Counter‑argument was that finding was not binding for the reason that Suit was dismissed and there was no decree which could be considered as res judicata for the purpose of proceedings under the second appeal. In that context the observation was made by the learned Judge of the High Court which has been quoted above. It is, therefore, clear that both cases cited by Mr. Rehmani do not advance his argument stated above. Mr. Hafeez Lakho, counsel for the landlord has argued that all the disputes are to be decided from the date of institution and decision of the suit and the rights of the parties as then. In support of the proposition, reliance is placed by him on the case of Haji Ibrahim v. S. Rehmatullah (1985SCMR241), with relevant portion at Page No. 245 'B'. He further argued that validity of the impugned order cannot be judged in the light of any subsequent event. With reference to Order XLI, rule 27, C. P. C. it was argued that use of words "substantial cause" means "necessity of proper determination of the case". In support of the proposition reliance is placed by him on the case of Muhammad Akhlas and others v. Muhammad Nawab (PLD1963SC466). Relevant paragraph is reproduced as under:‑ "It is necessary to note that rule 27, in sub‑rule (2) lays down that whenever additional evidence is allowed to be produced by an appellate Court, 'the Court shall record the reasons for its admis sion'. It is clear that more is required under this sub‑rule than mere repetition of the provisions in sub‑rule (1): the reasons would be expected to be factual, leading to an inference of necessity for proper determination. Moreover, in the present case, further evidence could only have been allowed if the appellate Court had required 'any witness to be examined to enable it to pronounce judgment or for any other substantial case'. On a review of the entire case, we are unable to see that the learned Single Judge in the High Court need have felt any obstacle in the way of his pronounc ing judgment in the case upon the record as it had come to him. The 'substantial cause' for allowing fresh evidence would, therefore, seem to be mere necessity 'for proper determination of the case', but as mentioned above, it was the duty of the learned Single Judge then to have stated expressly his reasons for the view that additional evidence was not necessary for such proper determination." Another authority cited in support of the point in the case of Secretary to the Government of West Pakistan, Communication and Works Department v. Gulzar Muhammad (PLD1969SC60), in which it is held that important evidence having material bearing on merits of case discovered subsequently can be admitted in evidence under Order XLI, rule 27, C. P. C. and it is open to the litigant for utilizing such evidence by applying for‑ (i) production of additional evidence, (ii) review by application of review and (iii) appeal from judgment. It was further held that additional evidence at appellate stage should not be allowed merely to enable the parties to litigation to fill in gaps in the evidence. Even in this case evidence sought to be produced was already in existence and available in the. shape of minutes of the cabinet meeting which could not be produced before the High Court as the learned counsel for the Government thought it fit to contest writ petition merely on the legal plane. In the light of legal position discussed above, I hold that application 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. So for merits in the appeal are concerned, the case of the tenant now is that he attributes mala fides to the landlord. Ejectment is granted on the ground of personal need. In the original application filed for ejectment before the Rent Controller, landlord‑bas very clearly stated that he requires demised premises as he wanted to expand his Hotel business which be was carrying on in small space admeasuring about 100 sq. feet. Landlord bas also very clearly stated in paragraph 7 of that application that there is one other show room which is in the use of his son who is doing business independently. As against this tenant replied in written statement denying any knowledge of paragraph 7 of the application for ejectment and took up stand that landlord has only one show room for his use which is enough for his bona fide need. This clearly shows that the tenant did not challenge assertion of the landlord that there was one ‑ other show room in occupation of son of landlord which could not be any help to the landlord. It would be pertinent to point out here that in the written statement in paragraph 6 there is over writing and typed "two" has been deleted with overwriting in hand which reads now as "one". It appears that originally the sentence written was "applicant has two show rooms for his use and they are enough for his bona fide use" with overwriting and deletion now the sentence reads "applicant has one show room for his use and it is enough for his bona fide use". This appears to have been done by the tenant himself who has signed at two places as deponent and was identified before tire Commissioner for taking affidavits by the counsel and this written statement is also, attested by the Oath Commissioner. In the evidence landlord stated that he and his son Mehmood Hayat were doing jointly business of Hotel and required demised shop of the tenant. Landlord further deposed that there was another show room which was in occupa tion of his other son Shahid Jamal who was running business separately and has no concern with the landlord. In the cross‑examination it was suggested to the landlord that adjacent to the Hotel there was a show room which was lying vacant. This was denied by the landlord and he stated specifically again that show ,room was in possession of his son and was given to him since 1977. Another suggestion was made to the landlord that show room was lying vacant and was under his lock and key which was denied. Likewise in the cross‑examination suggestion was made to Mehmood Hayat that one show room was lying vacant which was denied by him. Another suggestive question was put to this witness that his brother Shahid Jamal was not doing any business in that show room which was denied. Now so far the landlord is concerned he has to satisfy the Court that' he requires demised premises for his bona fide need. He has done that. Not only that but he has not concealed anything from the Court and on the contrary right from the very beginning disclosed in unambiguous terms that there was another show room near demised shop which was in tire occupation of his son Shahid Jamal who was separate from him. It is the tenant who is not consistent in his stand. In written statement he took up the stand that one room in occupation of landlord was sufficient for him for the expansion of his business. He did not bother to speak about another show room in possession of Shahid Jamal another son of landlord. On the contrary tenant took up very confused stand. On the one hand he stated that one show room in possession of landlord was sufficient for his bona fide use while in paragraph 4 of the written statement tenant denied the assertion of landlord in paragraph 5 of the application that he was carrying on Hotel business in a small space admeasuring about 100 sq. feet adjacent to the tenant's shop which was insufficient. When tenant filed affidavit‑in‑evidence in the trial Court. be stated for the first time that the landlord has another show room No. 2 adjacent to the demised shop which was enough for the expansion of his business. Not only that he made additional assertion that show room No. 2 was vacant and was under lock and key of the landlord. Apart from inconsis tencies mentioned above, it is very clear that tenant imputes mala fides to the landlord with positive assertion that landlord has another show F room No. 2 in his occupation which is lying vacant Under his lock and key. It is indisputable that it is for the landlord to prove bona fides of personal need and if mala fides are alleged by the tenant then the burden shifts to the, tenant to prove the malafdes. This is where the tenant has failed. Tenant has not produced satisfactory evidence on this point. He has produced one witness Abdul Rahim who claims to be running a Photo Studio in the neighbourhood. This witness has stated that landlord has in occupation show room No. 2 which is lying vacant. In the cross‑examination of this witness it appears that despite his claim of running a shop in the neighbour hood, he does not know about the number of children of landlord. Suggestion was made to him that he had come to the Court to testify because of his friendship with the tenant and also for the reason that pillar in front of the shop of tenant holds advertisement of his photo‑shop but it was denied. Even otherwise it appears from the evidence of this witness that adjacent shop which is called Shop No. 2 is vacant but he has not been able to prove that it is in occupation of the landlord. Even if this fact is accepted that the shop is vacant and locked, it cannot be presumed unless there is clear proof of it that it is in occupation ,of the landlord and not of anybody else. Vacant and locked shop can be in occupation of Shahid Jamal sad not of landlord unless tenant produces evidence to satisfy the Court that the landlord has the key of that shop and not Shahid Jamal. Grievance was made that Shahid Jamal has not been examined but I think that it is not necessary because so far bona fides o personal need are concerned, satisfactory evidence has been produced by the landlord and his son Mehmood Hayat. In these circumstances I hold that tenant has failed to prove satisfactory evidence in proving mala fide, against landlord. On the other hand, I find that evidence produced by the landlord is satisfactory hence I maintain impugned order and dismiss the appeal. There will be no order as to costs. Tenant is directed to hand over vacant possession within two months. A. A. Appeal dismissed.