FARID AHMED SHAMSI Versus KIFAYATUNNISA

1. The respondent filed an ejectment application against the appellant in respect of ground floor tenement of the premises bearing No. 733 Faran Co-operative Housing Society on the ground that she requires it for her bona fide use and occupation. It was pleaded that the present accommodation in her possession is not suitable for her need. The appellant denied these allegations. The learned Controller, however, granted the ejectment application.

2. Mr. Chagla Joshi the learned counsel for the appellant has contended that the respondent has failed to establish that she requires the premises for her bona fide use. In this regard the learned counsel contended that the respondent is occupying two rooms with all facilities, and therefore, this accommodation is sufficient for her needs. A perusal of the evidence will make it clear that the statement of the respondent's son and attorney that the respondent is residing in a temporary room which has been made by covering a Varandah on the ground floor and with improvised temporary bath, latrine and kitchen has not been challenged in cross-examination. The appellant's attorney on the other hand in his statement stated that the respondent is residing in two rooms. He has not stated anything about the nature of construction and amenities attached to it.

3. Mr. Rahmani the learned counsel has referred to P L D 1967 Kar. 233 and P L D 1964 Pesh. 198 where it was held that failure to cross-examine any witness leads to the presumption that the statement has been accepted. In the face of the unchallenged statement of the respondent's witness it has been established that the respondent is residing in one room which does not have all the amenities and facilities for a proper living. The appellant who is also residing on the ground floor of the same premises could have produced proper evidence of independent nature to establish that the statement made on behalf of the respondent regarding accommodation is not correct. Even such suggestion has not been made to the respondent's witness.

4. The learned counsel for the appellant contended that there is a variance in pleading and proof and, therefore, the judgment of the learned Controller cannot be upheld. In this regard the learned counsel has referred to pleadings where it has been stated that the disputed premises is required for the respondent's use and occupation. Her attorney in his evidence has' stated that the premises is required for the respondent and her daughter. The learned Controller in her order observed that the respondent is living in a room with her daughter which is also without latrine, bath-room and kitchen etc. It was further observed that it appears that the respondent requires the premises for her use and occupation bona fide and in, good faith. Therefore, the finding of learned Controller is that the premises is required by the respondent and not by her daughter. Even if there has been some variance in the statement from the pleading it cannot be termed of such a nature which may disentitle the respondent from seeking relief. The respondent's attorney has not stated that the premises is required for respondent's daughter alone. lie has supplemented the requirement of the respondent by adding that her daughter also resides with her and, therefore, additionally the premise:; is required for her also. The ejectment has not been granted on the ground that the premises is required for the daughter of the respondent.

5. The learned counsel for the appellant contended that as the respondent was not examined and only her son was examined, her bona fide requirement has not been established. The respondent is a widow and a Pardahnashin lady. The witness examined on her behalf is her attorney and son. The only fact pleaded and required proof was that she wants to reside in the disputed premises as the present accommodation is not sufficient for her living. These facts of general nature could be proved through the son or attorney or even by any other close relatives who was personally aware of the facts. The respondent has not pleaded any special requirement for which her examination was necessary. Mr. Rahmani has referred to Muhammad Ali v. Mst. Hameeda Begum 1983 CLC 3231, where the landlord being old and Pardahnashin and not used to appear in public was represented by her son, who was a duly constituted attorney and knew full facts of the case, it was held that non-appearance has not caused any prejudice to the tenant and bona fide could be proved by such witness. The learned counsel also referred to 1982 C L C 491 where my learned brother Ajmal Mian, J. has held that in this sub-continent according to the custom and practice the ladies are usually not accustomed to appear in public or in Court and are represented by their male family members, and in such circumstances if the husband or son is examined on their behalf they can fully prove the case. I do not find any prejudice caused to the appellant due to the non-examination of the respondent. Therefore, this contention of Mr. Joshi has no force.

6. The learned counsel then contended that the learned Controller has not properly appraised the evidence and the finding is based on surmises and extraneous considerations. It is correct that the learned Controller has not appraised the evidence in the manner it ought to have been done. The learned Controller has given the gist of evidence in the order and then without analysing it has given her conclusion. A Judge should properly appraise the evidence objectively and come to conclusion after proper reasoning and consideration of relevant facts, contentions and provisions of law. It is not sufficient to state that I have examined the evidence and contentions of the parties and come to the conclusion that the premises is bona fide required by the landlord." Such finding is not based on appreciation of evidence and is not proper and legal finding. However, in such circumstances. the appellate Court is competent to appraise the evidence, not only in 1st Appeal, but even in 2nd Appeal and give its own finding. The learned counsel wanted that the matter may be remanded, but this would only amount to increase the litigation and wastage of time. As I have heard the appeal at length and gone through the entire evidence of the parties, I think it proper to decide the matter at this stage and no useful purpose will be served by remanding the case particularly so as the conclusion of the learned Controller is correct. Even if the conclusion would have been incorrect, after appraising the entire evidence and hearing the Advocates at length it was not necessary to remand the case. For these reasons I see no substance in this appeal which is dismissed. The appellant is allowed three months time to vacate the premises.

7. M.Y.H. Appeal dismissed.