Messrs R. N. AVARI & COMPANY Ltd. Versus Dr. (Mrs.) SHIREEN
1. This First Rent Appeal has been filed against the order dated 30-4-1985, whereby the Rent Controller allowed the Rent Application of the respondent and directed appellant to hand over the vacant possession of the premises within one month.
2. The facts are that Rent Application No. 2971/83 was filed by respondent Dr. Mrs. Shirin Lakhani under section 15 (2) of the Sind Rented Premises Ordinance, 1979, on the grounds of default from March, 1978, to July 1983, and raising R.C.C. Pillars and R.C.C. Slabs in the above premises without the consent the landlady. The attorney of the respondent in support of the Rent Case filed affidavit-in-evidence on 1-4-1984, but subsequently respondent filed an application on 9-7-1984, to amend para. 2 of the original Rent Application and such amendment was allowed. In pursuance of the order of the Rent Controller, the respondent filed an amended rent application on 2-9-1984, in which it is stated that appellant is in arrears from April, 1977, till the filing of the rent case. The respondent filed another affidavit-in-evidence on 12-9-1984, and he was cross-examined by the other party. Appellant also filed his affidavit-in-evidence on 13-10-1984, and submitted some documents. The Rent Controller on the basis of these documents decided the rent case.
3. I have heard Mr. Sher Afgan for the appellant. It is contended by the learned counsel that no default has been committed by the appellant as they have been depositing the cheques with the bank and that was the practice prevalent between the parties. It was argued that appellant made an application to summon officer of the Bank to produce the documents but his request was declined. Therefore, at the appellate stage, he has riled an application under section 21(3) of the Sind Rented Premises Ordinance. It is contended by Mr. Sher Afgan that with regard to second ground of additions and alterations the application is not maintainable as appellant has not committed any act which has impaired the material value or utility of the premises.
4. Mr. Mohammed Ashraf A. Kazi appearing for the respondent contended that default has been committed as appellant has not been able to prove before the Rent Controller that rent was being tendered by him from time to time. He has also opposed the application for an additional evidence on the ground that statement of accounts furnished by the appellant is not certified by any officer of the bank. It is contended by the learned counsel that at this stage, it will not be proper to summon an additional evidence. On the second issue, it is argued that due to additions and alterations, the property has been damaged and this action of the appellant is without permission. He has referred to the cases reported in 1979 CLC (Lah.) 774, 1980 SCMR 906, 1981 SCMR 545 and 1986 CLC 1973.
5. Initially, the Rent Case was filed for default from March 1978 to July 1983, but after a lapse of one year, the respondent made an application for an amendment which was allowed. According to section 20 of the Sind Rented Premises Ordinance, Civil Procedure Code is only applicable in the following matters namely:-
(a) Summoning and enforcing the attendance of any person and examining him on oath,
(b) Compelling production or discovery of documents,
(c) Inspecting site and
(d) Issuing Commission for examination of witnesses of the documents.
6. There is no provision in the Rent Restriction Ordinance, 1979, by which the Rent Controller is empowered to allow the amendment or to take two affidavits-in-evidence of the same person but he has done so and this practice of taking affidavits of the same person twice is not warranted by law as the value of p the affidavit-in-evidence is that of evidence on oath subject to cross-examination. Both the affidavits are on the record and in both these documents and rent application the period of default is different. Not only this, but the Rent Controller has allowed the appellant to file two written statements. I fear how he could so. On the other hand, the Rent Controller refused the prayer of the appellant to summon the bank officer for which he was competent to do so under Section 20 (b) of Sind Rented Premises Ordinance, which he could have done in all fairness. From the pleadings of the parties the entire rent case hinges on the evidence of bank officer as appellant has to prove from the bank statement that he has been tendering the rent from time to time. The refusal of the application of the appellant was just. I am of the view that appellant has rightly made such an application for summoning the additional evidence at the appellate stage. But it will not be proper to hold a trial in the High Court, therefore, it would be appropriate in the interest of justice that appellant may be given a chance to produce evidence on this point only if they have been depositing the rent in time. Therefore, I set aside the order of the Rent Controller on this issue and remand the case back to him with the direction that he should allow the prayer of the appellant to summon the concerned officer from the bank and respondent be given an opportunity to cross-examine in order to come to the right conclusion about default.
7. With regard to Issue No. 2, the allegation in para. 3, is that appellant without prior permission of the respondent has raised R.C.C. Pillars and R.C.C. Slabs without the consent of the landlady. I do not like to discuss the evidence of the parties but only on the point that in the judgment on the one hand, the Rent Controller has stated that additions and alterations have been made and on the other hand, he has observed that action materially improved the value, but in t spite of that he allowed the rent application on this issue too. From the reasoning, it is clear that Rent Controller has not applied his mind properly. I also set aside the findings of Rent Controller on this issue and remand to consider all the points and give findings looking to the provisions of section 15 (2) (iv) of the Sind Rented Premises Ordinance, 1979, and apply mind properly.
8. H.B.T./R-58/K
9. Case remanded.