1983 PLP 2703 (CLC)

5. Against the above order, the tenant filed Rent Appeal No. 415 of 1979 which was heard by the learned First Additional District Judge Karachi, who by his order passed on 26th March, 1900 allowed the same and set aside the order of the learned Rent Controller. Aggrieved by the above‑mentioned order, this second appeal has been filed under section 15 (4) of the then West Pakistan Urban Rent Restric tion Ordinance, 1959. ,

6. The learned Advocate for the appellants attacked' the order of the First Appellate Court on the ground that the same is against the law and evidence on the record. He further argued that the finding of the First Appellate Court to the effect that respondent had seriously challenged the illness of the widow (Mst. Zubaida), who is now one of the landlords and shown as appellant No. 2, and therefore, her examination as well as the doctor was necessary. The medical certificates showing that the said lady was of very old and was ill were held to be not proved as the doctor who issued the same has not been examined. Having observed as above the learned First Appellate Court proceeded to hold:‑ "On the whole I would say that this plea of illness is also not proved and "if she has any medical advice she could better take rest on first floor. First floor in modern days is hardly reason to call stairs harmful to any ailment specially for household woman." In support of his arguments that the finding of the learned First Appellate Court is against the law and not based on evidence, learned counsel took me through the evidence on record. I had also the advantage of the assistance rendered by the learned counsel for the respondent as well. In order to appreciate the submissions made by the learned counsel I would first refer to the evidence of Musarat Manzoor P. W. 1 (Exh. 5). He is one of the appellants, who on the death of the original applicant, Manzoor Ali Khan, on account of devolution of the property upon him as an heir became one of the landlords of the building. In support‑ of the plea of requirement of the premises for personal use and occupation of the landlords, the said witness stated in his evidence that his mother (appellant No. 2, Ms!. Zubaida) is suffering from asthema, other ailments and from knee trouble when going to the first floor. He produced medical certificates Exhs. 9 and 10, certifying that she is suffering from angina pectoris and has been advised not to climb stairs. These medical certificates produced by the applicant/landlord in his evidence were exhibit ed as Exhs. 9 and 10 and brought on record without any objection on the part of the respondent. The solemn statement made by the witness Musrat Manzoor to the effect that his mother is suffering from asthema and heart trouble and she felt trouble when going upstairs finds corroboration from these medical certificates Exh. 9 and Exh.

10. The evidence of this witness further discloses that he was aged 29 years when his evi dence was recorded in the year 1979 and that he wanted to get married but for lack of accommodation his marriage was not taking place. He further deposed that after the death of the father his sister who became one of the co‑owners wanted to shift from Sukkur to Karachi as her children are getting education at Karachi. The evidence of the above witness was supported by Sayed Ahmed Khan P. W. 2 Exh.

12. He is a person who resides in the neighbourhood and knows both the parties. This witness stated in his evidence that appellant No. 2 (the mother of Musarat Manzoor) (one of the landlords) is suffering from asthema and knee trouble and that she cannot climb the stairs. The witness corroborated the state metit made by Musarat Manzoor (Exh. 5) P. W. 1, that marriage of this young man was not taking place due to lack of accommodation. The fact that daughter of Manzoor Ali Khan has come from Sukkur and is now staying in Karachi where her children are getting education is also deposed to by the witness, and has remained rebutted. . I may here also refer to the photographs (Exhs. 12/1 and 12/2) of the building in question which have been produced in cross‑examination of Musarat Manzoor (Exh. 5) which show that the upper floor in possession of landlords consists of incomplete structure, the rooms have no doors or windows and even the roofs appear to be missing. In the application filed for ejectment it was stated that the landlord Manzoor was a poor man, of advanced age. This explains the condition of the upper storey in occupation of the landlords. The original applicant Manzoor, died on 5th September, 1977 during the pendency of the case and .his legal representatives, the present appellants, have been brought on record, which fact we have already noted above. It is significant to note that in the cross‑examination of Musarat Manzoor who deposed to the illness of her mother and produced the medical certificates Exh 9 and Exh. 10, he was neither asked a single question about the said medical certificates nor genuiness of these certificates was challenged. On the other hand the said certificates were exhibited and brought on record without any objection on the part of the respondent. I may refer here to the case of Shamsuddin v. Pakistan (P LD 1960 Kar. 231) where a learned Single Judge in a similar situation where medical .certificates were brought on. record and exhibited without any objection observed :‑ "Mr. Ishaque has contended that since the Assistant Surgeon was not examined, this certificate is irrelevant, but it is too late in the day to object in an appellate Court that a piece of evidence has been brought on record in a manner not provided for in the Evidence Act. The case quoted as A I R 1937 Cal. 697 itself quotes Master of Rolls in Richard v. Sanders as saying "three certificates were tendered in evidence and objected to and yet they were not in." Here there is no trace of any. objection made at the time by the applicant," In the circumstances, particularly in view of the fact that the same facts as stated in the medical certificates produced by Musarat Manzoor (.P. W. 1) were also deposed to in his evidence in Court by him wherein be stated that his mother, an old lady, is suffering from illness and has been advised not to climb stairs, in the absence of any cross‑examination challenging the genuinenes of these medical certificates, the same could not .have been ignored. Uninterested person Saeed Ahmed Khan P. W. 2 has also deposed that mother of Musarat Manzoor is suffering frown illness and. cannot climb upstairs. In the absence of any evidence to the con trary, in my opinion there was no legal justification for the First Appellate Court to have rejected this evidence. 7: On the other hand perusal of the record shows that the learned Rent Controller had taken into consideration the evidence on the record to the effect that Mst. Zubaida, the widow of Manzoor Ali Khan (now the appellant No. 2) who‑became co‑owner on the death of her husband is an old lady of ill health and that the said lady .has trouble‑and feel difficulty while going to the first floor. The medical evidence on record supported by oral evidence of her son Musarat Manzoor and .a neighbour Saeed Ahmed Khan (P. W. 2) fully justified the conclusion that the appel lants require the premises in question, bona fide in good faith for use of widow/appellant No.

2. The learned first appellate Court on the other hand has not even cared to refer to the evidence produced by the appellant except dealing with the production and admissibility of medical certificates and then other rejecting this evidence without any cogent reasons, pro ceeded to advise that :‑ "If she has any medical advice she better take rest on the first floor." This approach of the learned first appellate Court is obviously fallacious and against the law. The learned first appellate Court failed to apply his mind to the evidence given on behalf of the landlords which was consistent to the case pleaded in the application and which proved the bona fide requirement of the premises by the landlords. I am fortified in reaching the above conclusion, by the case reported Hasan Khan v. Manawar Begum (P L D 1976 Kar. 832), where relying on the case of Muhammad Siddiq v. Mistri Muhammad Aslam (P L D 1975 Lah. 308), it was observed :‑ ....The effect is that the assertion or claim on oath by the land lord that he required the premises for his personal use, should be accepted by the Rent Controller as bona fide, if such claim or asser tion, although by itself may be insufficient, yet is consistent with his averments in the application and is not shaken in cross‑examina tion or disproved in rebuttal. The evidence in this case fully justi fied the claim by the landlord that he required the premises bona fide for his own use as he had no other accommodation of his own. To have dismissed this plea as not proved, merely because he had failed to prove his illness as a heart patient by medical evi dence, was arbitrary and contrary to law. f am therefore, of the opinion that the finding on this issue by both the lower Courts is against the law."

8. For the reasons stated above f find that the order of the Rent Controller is based upon proper appreciating of evidence and is supported by material on the record while the order of the lower appellate Court cannot be considered to have been validly passed as it is based. upon omis sion to consider material evidence and. that his findings are based upon surmises and conjectures.

9. Accordingly this appeal is allowed the judgment of the lower appellate Court is set aside and consequently the order of the Rent Con troller passed on 15th May, 1979 is restored. The respondent however is granted 4 months time to vacate the premises subject to the condition that he deposits rent for the above mentioned period every month in the Court of the Rent Controller. On the failure of the respondent to deposit rent for any month or vacate the premises on the expiry of the period granted as above which‑ ever event happens earlier, writ. of ejectment would be issued without notice to him. There shall however be no order as to costs. M. Y. M, Appeal allowed,