HABIB BUX Versus ZAHOOR-UL-HASAN

This is an appeal filed by Habib Bux (hereinafter referred to as the landlord) against the order dated 29th April, 1982 passed by the Senior Civil Judge/Rent Controller‑111, Karachi whereby the application for ejectment filed against the respondent (hereinafter referred to as the tenant) was dismissed.

1. Ejectment was sought by the landlord from the Shop No.97, Market‑I, Block 3, Drigh Colony, Karachi, on the plea that the tenant, liable to pay rent at the rate of Rs.100 per month for the said premises, committed default in making payment of rent for the period from June, 1980 to October, 1980.

The tenant filed his objections wherein inter alia, it was pleaded that he had been paying rent in advance every month regularly but the landlord did not issue receipts. It was also pleaded that originally the rate of rent for the said premises was Rs.60 per month which subsequently was increased to Rs.80 and thereafter to Rs.100 per month. According to the tenant, enhancement in rent on each occasion was due to the demands made by the landlord. It is the case of the tenant that since some time before the filing of the case the landlord again started insisting upon payment of rent at the rate of Rs.500 per month which demand being unreasonable was not accepted as a result of which the ejectment case was filed against him in the Court of the Rent Controller.

At the hearing of the case before the Rent Controller the landlord filed his own affidavit in evidence and also submitted affidavits of his two witnesses, Abdul Majeed and Abdul Waqar in support of his case. All the three persons were cross‑examined by the Advocate for the tenant. The tenant in defence filed his own affidavit and was cross -examined by the counsel for the landlord.

The learned Rent Controller after recording the evidence came to the conclusion that tenant had paid the rent for the period in dispute to the landlord, and that though there was no default yet the landlord was trying to take advantage of non‑issuance of rent receipts by him. On the findings thus reached the Rent Controller by order passed on 29‑4‑1982 dismissed the application for ejectment filed by the landlord.

2. Aggrieved by the above‑mentioned order passed by the Rent Controller, this appeal has been preferred by the landlord under section 21 of the Sind Rented Premises Ordinance, 1979.

With the assistance of Mr. Z.P. Naqvi, Advocate for the appellant and Mr. Khursheed Ahmed, Advocate for the respondent I have gone through the record and after hearing them find that no exception can be taken to the impugned order passed by the learned Rent Controller. The reasons for reaching the conclusion as above are discussed below:‑

At the very outset, it would be observed that the contents of the affidavits in evidence filed by the landlord and his two witnesses and also that by the tenant, verified as they are as true to the knowledge and belief of the deponents without clearly stating how much of the statements are true to the knowledge of the deponents and how much statements have been made on the information or belief and further p without stating source of the information or belief with sufficient particularity, being in violating Order XIX, rule 3, C.P.C. and Sind Civil Court Rules, make the said affidavits meaningless and valueless and therefore to be ignored. For the sake of reference Order XIX, rule 3(1), C.P.C. is reproduced below:‑

"3. Matters to which affidavits shall be confined. ‑‑(1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted: provided that the grounds thereof are stated."

I may next refer here to rules 50 (1) (2), 51 and 62 of the Sind Civil Courts Rules which provide:‑

"50. (1) Every affidavit shall express clearly how much is a statement of the deponent's own knowledge and how much is a statement made on his information or belief and shall also state the source or grounds of the information or belief with sufficient particularly.

(2) When a particular fact is not within the deponent's own knowledge but is stated from information obtained from others, the deponent must use the expression: "I am informed" and should add "and verily believe it to be true" if such be the case. He must also state the name and address of, and sufficiently describe for the purpose of identification, the person or persons from whom he received such information When the statement recta infact disclosed in documents or copies of documents, procured from any Court of justice or other source, the deponent shall state what is the source from which they were procured and his information or belief as to the truth of the facts disclosed in such documents."

(3) ..

51. Every affidavit stating any matter of opinion shall show the qualifications of the deponent to express such opinion by reference to the length of experience, acquaintance with the person or matter as to which the opinion is expressed or other means of the knowledge of the deponent.

62. An affidavit not sworn or affirmed in the manner hereinbefore provided shall not be used in evidence."

The view taken as above by me in the light of the statutory rules reproduced above finds support from the cases reported as, Padmabati v. Rask Lal Dhar I L R 37 Cal. 259, Chandrika Prashad Slngh v. Hiralal A I R 1924 Pat. 312, Federal India Assurance Co. Ltd., v. Anandrao Pandurangrao Dixit A I R 1944 Nag. 161, Babu Lal v. Mot! Lal A I R 1953 Mad. 82, Bisakhi Rani Ghose v. Satish Ghandra Roy A I R 1956 Cal. 496, Difendra Nath v. State of Bihar and other AIR 1962 Pat 1101, . The affidavits of the landlord and his twos witnesses being not in accordance with the rules are liable to be ignored. Thus there remains no admissible or reliable evidence in support of the plea of the landlord that the tenant had committed default in payment of the rent.

3. I may however also examine the case on merits on the statements made by the witnesses produced by both the parties. The landlord in his affidavit stated that the tenant never paid monthly rent to him without obtaining receipt, that on each occasion he used to issue receipt and that the latter had committed 'default in payment of rent for the period from June, 1980 to October, 1980 and thus was liable to be evicted from the premises in question. In the cross‑examination it was stated by him that against rent collected every month, on the Katcha receipts issued to the tenant no revenue receipts were affixed by him. His witness Abdul Majeed however gave a different version when to a question put to him by the learned counsel for the tenant he stated that on the receipts issued by the landlord revenue stamps were affixed. This statement of Abdul Majeed clearly contradicted the statement of the landlord noted above. The other witness of the landlord was one Abdul Waqar who resides in the same building but on the first floor. He obliged the landlord by supporting him. Significant fact to note, however, is that both these witnesses, Abdul Majeed as well as Abdul Waqar, did not state in their evidence that the tenant/ respondent had committed default in payment of rent as alleged by the landlord.

As against the above evidence the tenant who examined himself in support of the defence denied the allegation made against him that he had defaulted in payment of rent or that receipts were issued to him for the rent paid by him to the landlord from time to time. He denied the suggestion made in the cross‑examination that the landlord used to give him Katcha receipts for the rent paid by him. The statement made by the tenant was consistent with the case set up in the written statement filed by the tenant and was believed by the Rent Controller before whom the witnesses were examined.

Considering the evidence produced by both the sides in the circumstances I find myself in agreement with the Rent Controller that the landlord was not issuing receipts for rent received by him from the tenant and that the landlord was trying to take advantage of his 1 own omission for purposes of getting the tenant ejected on the plea of alleged default in payment of rent. The landlord has failed to prove that the tenant committed default in payment of rent as was alleged by him and thus his application for ejectment was rightly dismissed by the Rent Controller.

4. The upshot of the above discussion is that this is a case of no) evidence and even otherwise there is no merit in this appeal which therefore is dismissed.

The above are the reasons for the short order passed on 24‑11‑1985.

A. A. Appeal dismissed.