2001 PLP 169 (YLR)

2. The respondent/landlady has sought ejectment of the appellant/tenant on the grounds of requirement for personal bona fide use and wilful default in payment of rent from October, 1999 till the filing of the Rent Case. Notice of the Rent case was served upon the appellant/tenant, who filed written statement and denied the allegations.

3. Affidavit‑in‑evidence of the attorney of the respondent/landlady, namely Ghulam Dastagir was filed on 12‑5‑2000, who has been subjected to cross‑examination by the counsel for the appellant/tenant. The appellant/tenant has also filed his affidavit‑in evidence and has been subjected to cross examination by the counsel for the respondent/landlady.

4. The learned trial Court, after having gone through the pleadings, formulated the following points for determination: (1) Whether the opponent committed default in payment of rent? (2) Whether the tenement is required by the applicant for her personal bona fide need in good faith? (3) What should the order be?

5. The learned trial Court, after having gone through the evidence adduced by the parties, documents filed by them and other material on record, passed the impugned judgment in terms as stated above.

6. Both the learned counsel for the parties have argued the matter at length and I gave them a patient hearing.

7. The starting point in the instant case is that the affidavit‑in‑evidence was filed by the attorney of the respondent/landlady on 12‑5‑2000 and the attorney of the respondent/landlady has come for cross examination on 24‑5‑2000 but nowhere it appears that he has been recalled and reaffirmed or he has taken oath or oath has been administered to him. There is only mention of date i.e. 24‑5‑2000 and, thereafter, he has produced the photostat copy of lease agreement and other documents. He has been subjected to cross‑examination by Mr. Khursheed Ahmed Qureshi, Advocate for the opponent. Neither the learned counsel for the appellant/tenant nor Mr. Haseebur Rehman, counsel for the applicant, pointed out this illegality committed by the trial Court. When Mr. Haseebur Rehman, counsel for the respondent/landlady, was confronted with this question, he very frankly conceded that it is an illegality and a fit case, for remand.

8. While going through the evidence the record reveals that examination‑in‑chief of the attorney of the respondent/landlady was held on 12‑5‑2000 and, thereafter, he has appeared on 24‑5‑2000 for cross‑examination and neither he has been sworn in Court nor any oath has been administered to him. Even there is no mention of "recalled and reaffirmed" and thus legal evidence was not recorded by the trial Court. I am fortified on this view by a judgment of this Court in the case of Adam Limited, Karachi v. Arif (1998 CLC 989). Since, on facts on record, the evidence is not legally recorded, there is no other course available with me but to remand the case to trial Court for recording proper legal evidence and, thereafter, pass a judgment on such legally recorded evidence.

9. In view of the above discussion, I allow this appeal, set aside the impugned judgment, and remand the case to the trial Court to record proper legal evidence and pass appropriate orders within two months from the date of receipt of a copy of this judgment. Since the order is passed on the legal ground, therefore, there will be no order as to costs.

10. The parties are directed to appear before the Rent Controller on 20‑4‑2000. H.B.T./V‑7/K Appeal allowed/ Order accordingly.