1991 PLP 1884 (CLC)

‑‑‑‑S.21‑‑‑Plea not raised in written statement but taken in evidence ‑‑‑Effect‑‑ Tenant's plea that he having paid Pugree to landlady same should be given due consideration while passing ejectment order‑‑‑Such plea was neither taken in written statement nor put to attorney of landlady while he appeared as a witness but same was `raised only in tenant's evidence‑‑‑Plea raised by tenant at such a late stage could not be accepted‑‑‑Appeal was dismissed in circumstances. Hassan Jaffar for Appellant. Mushir Alam for Respondent. Date of hearing: 19th March, 1991. The respondent filed application for ejectment against the appellant on the ground of default, unauthorised alterations and additions, subletting and bona fide personal requirement. The ejectment was granted only on the ground of personal bona fide requirement. In the ejectment application it has pleaded that the respondent has a large family of eight persons and has two sons Moiz and Mansoor who are of marriageable age of 25 and 23 years which has been postponed for lack of separate accommodation and the premises was required for them. The appellant denied all these allegations. In the evidence, husband of the respondent appeared and filed his affidavit in evidence. He reiterated the same facts stated in the application and further stated that his family consists of eight persons and in support thereof filed a copy of ration card. According to it Moez and Mansoor are of marriageable age. He stated that they are 23 and 25 years of age respectively and separate accommodation was required for their marriage which was postponed due to want of proper accommodation. He also stated additionally that she requires separate accommodation for prayers and ladies sitting room. Due to old age the respondent who is a heart patient cannot climb on the fourth floor where the rented flat is situated in which they are residing. Considering the averments made in the application and the affidavit of evidence of the respondent legally the ground pressed is in respect of the requirement of two sons who are of marriageable age. Respondent's husband Ali Bhai has testified this fact which is completely in accord with the averment made in the application. In the cross‑examination this fact has not been shaken. The other witness Mohsin Ali seems to be a witness only of the execution of the tenancy agreement. He does not recognise the parties and, therefore; whatever has stated about the requirement of the application is completely to be ignored. The entire case rests on the evidence of Ali Bhai. The learned counsel for the appellant has contended that the evidence is not sufficient to grant ejectment and further that as improvements have been made in the evidence it should be disbelieved, moreso as the applicant and the two sons have not been examined. The respondent is a lady and Ali Bhai is her husband. He has been looking after the affairs of the respondent and even holds a power of attorney copy of which was filed with the ejectment case. Even otherwise, considering the religious and cultural background of our country the ladies hesitate to come forward and volunteer as a witness in the witness‑box and, therefore, in such personal cases, if the husband or any close relation or family member is examined on her behalf, unless from the facts and circumstances her examination can be imminent no such objection can be raised. The question of examining two sons may not be necessary as whatever their father has said has completely been proved. Therefore, on the basis of the evidence on record, the respondent has proved the case for bona fide personal requirement of their two sons. Mr. Hassan Jafar then contended that the appellant has paid Pugree and due consideration should be given while passing an ejectment order. Mr. Mushir Alam has denied that Pugree was charged from the respondent. The second aspect of this case is that this plea was not raised in the written statement. Furthermore, it is only in the evidence that such a plea was raised but while Ali Bhai was being cross‑examined, no such question was put to him. In these circumstances, such a plea at such a late stage cannot be accepted. Even otherwise, it is doubtful that where Pugree has been paid by a tenant ejectment could be granted only on a condition that the same is returned to the tenant. However, I will keep this question open for consideration in a proper case. The appeal is, therefore, dismissed. The appellant shall hand over peaceful and vacant possession of the disputed premises to the respondent within a period of three months. AA./A‑1060/K Appeal dismissed.