1991 PLP 1303 (MLD)

"I therefore intend to set up my business of a General and Kiryana Store in the shop premises in case. The business will be managed by one of my sons namely Fareeduddin and this will serve to augment my income for support of my family my own means being limited." In cross-examination she stated as follows:-- "My sons Raisuddin and Fasiuddin are in service. My son Fareeduddin is jobless. It is correct to suggest that my son Fasiuddin is in service, in Pak Company. The tenement in question is required by me for my younger son Fariduddin." She further stated:-- "It is corr6ct to suggest that my son Fariduddin is B.Sc. It is correct to suggest that my Fariduddin has no business experience at present. I do not know about the nature of business intended to be carried on by my son Fariduddin in the statement in question." Fariduddin in his affidavit has stated as follows: "I am unemployed and jobless. We therefore, require the premises in case to set up business of a General and Kiryana Store. My mother's income does not suffice to meet our needs. The prices of commodities of daily use and consumption are rising day by day and the need for augmentation of income to meet expenses is pressing. I am jobless and have to waste my youthful days aimlessly. We feel confident that we shall be able to carry on the business without difficulties because we have the will to overcome difficulties. I shall look after and manage the proposed business." In cross-examination he stated that:-- "It is correct to suggest that I have no business experience. I have got no idea of further education. I have passed B.Sc., in Math. I have applied for service in various organisations but with no result. It is incorrect to suggest that I am trying for better service. Voluntarily says that now I want to run some business." These are the relevant parts of the application, affidavits and cross- examination on which the entire case is to be resolved. The main ground seems to be according to the respondent that the ejectment application projected the need of Bismillah Begum but in evidence need of Fariduddin has been projected. A perusal of the ejectment application will show that it has not restricted the requirement of Bismillah Begum only or to any one of her family members. The application intends to project the need of the family and in order to have more income she intends to set up her business of general and kiryana in the shop premises in case, and this business would be managed by one of her sons. In these circumstances non-disclosure of the name of her son who was to carry on that business may not be fatal to the very requirement projected by the appellant. It is not necessary that in every case of personal requirement or requirement of any member of the family the name of such person may be specifically mentioned unless considering the nature of business, the skill, experience or expertise necessary for carrying on such business by such person. it is necessary to disclose it. In such circumstances the name of such person should be disclosed. However, it does not follow that the particulars in the application should be so vague as to create difficulty in replying or non disclosure may prejudice the defence. The principles .in this regard have been enunciated in 1990 S C M R 1070. The deceased lady wanted to set up a business for the family and in that process she also wanted one of her sons to look after that business and the most suitable person seems to be Fariduddin as he is educated and unemployed. The fact that he has no experience for carrying on business cannot be a ground for rejecting the application as no expertise of any special nature is required for carrying on business of general store. It is true that although in the ejectment application and in, the affidavit it has been stated that kiryana business will be established, in cross-examination the nature of business has not been specifically stated and uncertainty has been shown by Bismillah Begum alone. However, from the evidence it is established that Bismillah and Farid wanted to start business to be run and managed by Fariduddin. He has specifically stated about the nature of business which has not been shaken in cross-examination. He also stated in collective terms that they would start the business which would be managed by him. In these circumstances the discrepancy in the cross-examination of Bismillah Begum, an old lady, is not sufficient to discard her testimony. Mr. A. Sattar Khatri, the learned counsel for the respondent has contended that as the two brothers and two daughters are employed and Bismillah Begum was receiving rent to the extent of Rs.3,500 per month there was no need for them to start a business. In cross-examination the respondent's counsel had suggested that the employed sons are giving tuitions and are earning about Rs.1,000 per month. This fact shows that in spite of being in service they have to augment their income and were engaged in additional job for earning some more money. In such circumstances as one of the brothers is unemployed and wants to establish a business for self-employment and to augment the income of the family, personal requirement is fully established. The learned counsel has contended that Mst. Bismillah and Fariduddin have admitted that they have not sworn affidavit before the Oath Commissioner and therefore, the same cannot be admitted in evidence. In this regard the learned counsel has referred to Master Muhammad Bashir v. Moinuddin 1990 C L C 703 where it was observed. that non-appearance of deponent before Oath Commissioner or before any body for swearing statement on oath makes the evidence inadmissible. The learned counsel for the appellant has referred to section 13 of Oaths Act, 1873 which reads as follows:-- "

13. No omission to take any oath or make any affirmation, no substitution of any one four any other of them, and no irregularity shall invalidate any proceeding or render inadmissible any evidence whatever in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth." This provision was considered in Abdul Latif Niazi v. Government of Pakistan P L D 1967 S C 62 and at page 67 it was observed:-- "The second ground on which leave was granted was to consider whether the evidence in the enquiry, which was not recorded on oath, could be considered a; evidence at all. Mr. Zullah informed us that the practice in departmental enquiries was not uniform on this point. Some enquiry officers considered that they were competent to administer oaths while others thought that no oath should be administered to witnesses. However, Mr. Zullah was constrained to admit that section 13 of the Oaths Act was clearly available to save the validity of statements without oath such as were made in the enquiry in the present case. Mr. Zullah himself referred to the case of Muhammad Sugal Esa v. The King A I R 1946 F C 3 (a case from Somaliland where the law on the subject was similar to the Indian Law) and section 13 of the Oaths Act coming under examination, the Judicial Committee held that it was quite unqualified in its terms' and there is nothing to suggest that it is to apply only when the omission to administer the oath occurs per incuriam." The effect of section 13, Oaths Act came up for consideration in 1986 C L C 518 where at page 526 the following observation was made:-- "As regards the contention of learned counsel for the petitioners that the respondents Nos.4 and 5 were not administered Oath, it may be observed that he had referred to the statements on record which indicate that the words `solemn affirmation' have not been written. The Tribunal might not have written the above words on account of omission, but even if it is to be held, that factually, the above witnesses were not administered oath, the above irregularity will not vitiate the entire trial. The same is curable under section 13 of the Oaths Act, 1873 which provides that no omission to take any oath or make an affirmation, no substitution of anyone for any other of them, and no irregularity whatever in the form in which anyone of them is administered, shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth." It seems that the provisions of section 13 of the Oaths Act and these authorities were not brought to notice in Muhammad Bashir's case 1990 C L C

703. The correct legal position in law seems to be that where affidavit or statement on oath is to be taken in evidence and the same has not been affirmed on oath, such defect will not invalidate the proceedings of Court nor such omission will render it inadmissible in evidence. In any event in this case the cross-examination was recorded on oath which also supports the contention of the appellant. For those reasons I allow the appeal and set aside the order of the learned Controller. Six months time is allowed to the respondent to hand over vacant possession of the disputed premises to the appellant. H.B.T./B-189/K Appeal allowed.