P L D 1993 Karachi 775 (PLP)

This appeal under section 71 of the Sindh Rented -PremiseS Ordinance, 19 it) is directed against the order, dated 16-12-1990 passed by Miss Soofita Lateef learned Rent Controller, Karachi (Ea&,' in Rent Case No.703 of 1985, whereby she directed the appellant to vacate the premises in question and hand over its vacant possession to the respondent within 60 days, from the order. The facts relevant for decision of this appeal are as follows-- Respondent Naushina filed the above-referred rent case against Bahadur Mir7A who was the predecessor-in-interest of appellant and had expired during pendency of the proceedings, on the ground of default in payment of rent. it is her caw that deceased Bahadur Mirza was his tenant in respect of residential premises No.B/129, Block-5 Guishan-e-Iqbal Scheme Sewerage, and other was to pay monthly rent in. advance by 5th of each calendar month, but never paid the rent in time. According to her, the deceased committed default in payment of rent from June,1980 till December, 1991 The case of the deceased as disclosed in the Written Statement/objections is/was that the respondent used to collect rent through her attorney Muhammad Ali after long intervals and said attorney collected rent up to May, 1980 and permitted him (deceased Bahadur Mirza) to carry out the repairs of the premises to the extent of Rs.20,

000. He admitted that the rates of rent and also the fact that rent against him was due from June, 1980, but maintained that out of the amount of Rs.28500 being the rent for the 19 months in question, the, amount of Rs.15,500 was adjusted towards the repair charges and the balance ofRs.13,000 was paid in cash to the attorney, who did not issue any receipt for it. It appears that he died in November, 1988 and after his death his legal heirs Mst. Malika Sabiha and Zafar Mirza, being widow and son respectively, were brought on record. This appeal has been preferred by his son only. At trial, the respondent examined her attorney Muhammad Ali at one Zarif Ahmed. The deceased had his witness Qamar Bhatti. Neither the deceased nor his witness appeared in the Court and the then learned Rent Controller, by his order dated 5th March, 1989 dismissed the application on the ground that since the default, if any, was committed by the deceased, therefore, the appellant could not be held responsible for it. This order was challenged before this Court in F.R.A. No.298 of 1989 and a learned Single Judge of this Court, by an order dated 14-3-1990, set aside the said order, and remanded the case to Rent Controller for deciding it afresh on merits, after allowing both the parties to adduce further evidence, if they so desire. After the remand of the matter, on 94;-1990 the respondent filed a statement that she would not lead further evidence in the matter. The appellant, on 18-11-1990 also filed a statement, whereby he expressed his intention to adopt the evidence of the deceased. It appears from the impugned order that learned Rent Controller had given an opportunity to the legal heirs of deceased for filing affidavit-in-evidence, but they did not avail it. On assessment of evidence learned Rent Controller reached the conclusion that default was committed in payment of rent. Consequently, she allowed eviction of the appellant by the order, which has been impugned in this appeal. It is contended on behalf of the appellant that no default was committed by the deceased and this is evident from his written statement and affidavit-in-evidence and that he died before his cross-examination was recorded, therefore, the facts disclosed in these documents being material and relevant and the same being given on oath by a person, who is now dead, shall, under the circumstances, be taken as proved. A written statement by a defendant discloses his defence and contains propositions on the point of law and fact. It is settled law that a fact is to be proved by the party which pleads its existence. Simply because a factual proposition is affirmed or denied in a written statement or affidavit-in-evidence, does not necessarily mean that it has been legally proved. The facts disclosed in above-referred two documents are neither of category of which the Court shall take judicial notice and nor they fall within the scope of judicial admissions, which dispense with the exercise of proving them. In fact, such assertions are of a legal value and this is clear from the case-law referred to in the succeeding paragraphs. The ratio of the cases (1) Mst. Khairunnisa and 6 others v. Malik Muhammad Ishaq and 2 others PLD 1972 SC 25, (2) Nazeer Ahmad Khan and 2 others v. Muhammad Ashraf Khan and 3 others PLD 1975 Kar. 598, (3) Malik Muhammad Ishaq v. M/s. Erose Theatre and others PLD 1977 SC 109, (4) M/s. Shalimar I.Ad., Karachi v. Raeesuddin Siddiqui and 3 others 19179 CLC 338, (5) Muhammad Yousaf Ishaq v. Abdul Majeed Khan and 5 others 1984 CLC 243, (6) Abdul Karim Qureshi v. Abdul Khaliq 1984 CLC 259, (7) Mst. Sakina and another v. Hussain and 5 others 1986 CLC 288 is that a written statement by a person, who is dead and did not appear as a witness at trial could not be treated as substantive evidence on his behalf and that the pleadings are not evidence by themselves. Like written statement, affidavit-in-evidence is of no legal value, if its deponent does" not make himself available for cross-examination. On this point, the reference can be made to the cases: (1) Ataullah Khan Malik v. The Custodian Evacuee Property (West) Pakistan and 5 others reported in PLD 1964 SC 236 (2) The Presidrnt v. Mr. Justice Shaukat Ali reported in PLD 1971 SC 585 (3) Rehmaiullah v. Tufail Hussain and others reported in 1987 CLC

792. The ratio of these cases is that against whom affidavit is produced, is entitled to have deponent put in witness-box and to cross-examine him. If a deponent is not produced for cross-examination, the affidavit in such circumstances, loses all its force as a probative piece of evidence and cannot be acted upon. Thus, neither written statement nor affidavit-in-evidence of the deceased can be taken into consideration and teamed Rent Controller was perfectly right when she excluded them- from consideration. After exclusion of above documents the only material evidence is of respondent's attorney Muhammad Ali who in his affidavit-in-evidence, clearly stated that deceased made last payment of rent on 7th May, 1980 and did not, make any payment from June, 1980 to December, 1981. There is nothing on record to show that payment for said period was made by the deceased to the respondent. Also nothing worth mentioning has been brought on record to substantiate the plea that attorney had authorised the deceased to carry out the repair, and that the deceased paid an amount of Rs.13,000 in cash to the attorney. Since the respondent had not given her consent for carrying out said repairs as such, the deceased, under no circumstances, was entitled to adjust the amount of Rs.15,500 towards repair charges. Irrefutable evidence is available on record to show that wilful default was committed by the deceased in payment of rent. Learned counsel for appellant also argued that respondent, as a practice, always accepted accumulated rents. Since in this case it is not proved that rent for said 19 months was paid to the respondent, therefore, even the alleged-practice of accepting accumulated rent would not make any difference. The fact remains that rent for said 19 months was not paid to the respondent. In the last, learned counsel submitted that the default, if any, was committed by the deceased and the appellant being his legal heir was not responsible for it, as such, on this ground alone the eviction application ought to have been dismissed. by learned Rent Controller. In support of this contention, reliance is placed on the case of Maji Ahmad Haji Abdul Rahman v. Syed Nazir Hussain Shah reported in PLD 1987 Kar. 603 wherein it was observed by a learned Single Judge of this Court that "where case was filed against original tenant during his lifetime and default in payment of rent was also alleged to have been committed by him during his lifetime, legal heirs of such tenant in possession of rented premises after death of such original tenant could not be held liable for default, if any, committed by their predecessor during his lifetime" This point was also considered by a Full Bench' of Hon'ble Supreme Court of Pakistan in the case of Muhammad Azeem and others v. Sh. Muhammad Nawaz and others reported in PLD 1966 SC

182. In this case, special leave to appeal was granted to consider whether, in the circumstances of the case, default by the deceased was a ground upon which his legal representatives as tenant could be evicted. The appeal was dismissed and above point was resolved with following observation :--L "These circumstances -are sufficient to show that there was a defect in the right which he could claim as a tenant, which had been made the subject of proceedings for termination of the tenancy against him and from the time when the proceedings were commenced the retention of the tenancy was subject to the result of these proceedings. It was not a case of the defects being noticed and made a ground for eviction upon or after the death of the tenant. The tenure which Sayyed Fazal-i-Haq enjoyed from the time when the proceedings were started against him was - subject to the result of those proceedings and his legal representatives, who, under the law, were entitled to continue in occupation, held that tenancy subject to this defect. I find myself in complete agreement with the view expressed by the Division Bench on this point. Although the legal representatives could claim to be statutory tenants upon the death of Sayyed Fazal-i-Haq, yet their tenancy was not free from embarrassment, for litigation had already been commenced on the basis of defaults, sufficient in themselves, if found, to extinguish that right. Therefore, in my view, the legal representatives, if they wished to continue as tenants, were bound to undertake to establish that there was no default either in payment of rent, or by subletting of the premises, by their deceased father Sayed Fazal-i-Haq. In this matter BZ. Kakaus, J. recorded his reasons separately, but agreed with the conclusion drawn by A.R. Cornelius, C.J. He observed that "if children derived their right from their father, then they would be affected by the default committed by him even though proceedings for ejectment had not started in his lifetime". Thus, the rule that the children of the deceased were bound by the default committed by the deceased for the reason that if they succeed to the tenancy of the deceased, they succeed to the default also, was confirmed. Respectfully, following the rule laid down by the Hon'ble Supreme Court, I hold that appellant, as legal heir of the deceased, is liable for the default committed by the deceased. In consequence, I do not find any merits in this appeal, and the same is dismissed with cost. The appellant however, is given three months time from now for hand over the vacant possession of the premises in question to the respondent. H.B.T./Z-214/K Appeal dismissed.