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Second Appeal No. 318 of 1963, decided on 22nd March 1965.

O. XLI, r. 31 Judgment in appeal‑First appellate authority omitting to refer to each witness by name and to each document by description‑Such authority, however, giving its views of the evidence on record R. 31, held, substantially complied with.

Jyotindra Mohan v. Kanai Mahato A I R 1934 Pat. 66; Chhaganmal Marwari v. Indra Keot A I R 1938 Pat. 609 and Kristo Gobind Kur v. Gunga Pershad Surma 23 S W R 266 distinguished.

Anandpal Singh v. Mahabal Singh A I R 1927 Oudh 95 and Surji Singh v. Kunwar Durga Parshad 1905‑8 0 C 290 ref.

S. 10-- Landlord seeking ejectment of tenant on ground that premises were required for storing goods, landlord having been forcibly dispossessed of accommodation where such 'goods had been previously stored Held, what was material was the need for premises which had arisen on account of the loss and not the manner or justification. of grounds of dispossession‑Failure to inspect premises which landlord had lost Effect‑Practice Point relating to such failure not raised in first appeal, not entertained in second appeal.

Fakharuddin for Appellant.

M. M. Mahmudi for Respondents.

Date of hearing : 22nd March 1965.

This Second Appeal is directed against the judgment of the learned District Judge, Karachi, dated the 16th of November 1963, by which he dismissed the First Appeal of the present appellant and upheld the judgment of the Rent Controller, dated the 13th of April 1963. By that judgment the Rent Controller had granted the application of the present respondents for the eviction of the present appellant from the premises in dispute.

2. The premises in dispute belong to the respondents of whom the first‑named is the father, the second‑named, the mother, and the 3rd, 4th and 5th the sons of these parents. They applied for the eviction of the appellant on the ground that they were in need of the premises for storing goods which belonged to the Karimi Radio Stores. Karimi Radio Stores is admittedly a firm consisting of four brothers, two of whom are the owners of the premises in dispute. The case was that Karimi Radio Stores had imported goods which were to be stored, and that the place where they had been storing their goods had been taken away from their possession forcibly, with the result that the premises in dispute were required by them. The application was resisted by the present appellant, and the following issues were framed by the Controller:

(1) Is the present application maintainable in view of Order IX, rule 9, C. P. C.

(2) If all the applicants are the owners of the premises or to the exclusion of applicants Nos. 3 and 4, and in either position entitled to the benefit of the said provision

(3) Whether the premises in question are required by the applicants reasonably or in good faith, or for the use of applicants Nos. 3 and 4

(4) Whether the applicants are entitled to the relief prayed for

3. Issuse No. 3 indicates that the application for ejectment was made by the present appellant under section 10 of the Karachi Rent Restriction Act, 1953. The case was tried elaborately by the Rent Controller, who wrote an order covering 16 typed pages. After the decision of the case against the present appellant it went in First Appeal, which was heard by the learned District Judge, Karachi and was dismissed, as mentioned above. The appellant tenant has, therefore, come in Second Appeal to this Court.

4. Mr. Fakharuddin appearing for the appellant opened his arguments by raising the one and only contention that the questions of fact which have been decided by the First Appellate Court should not be, considered to be conclusive. The decision on facts of the learned District Judge, Karachi, according to counsel, should be either ignored altogether or, in the alternative, the case should be remanded for re decision by another learned District Judge. The reason for raising this contention, according to counsel was that the judgment written by the learned Judge indicated on the face of it that he had not applied his mind to the case which was before him, and that he had not complied with the requirements of Order XLI, rule 31, C. P. C. I may mention here that counsel was not in favour of this Court going into the questions of fact and reviewing them for the purpose of deciding that in this appeal because, according to him, this would deprive the appellant of the right of First Appeal. The right would be lost, according to counsel, because the First Appellate Authority had not applied its mind to the case and thus the right which was lost could not be compensated by a decision of this Second Appeal after going into the facts.

5. The only point for consideration before me, in view of what has been said above, is as to whether the judgment of the learned District Judge, Karachi should not be treated to be a judgment in view of the said provisions of C. P. C. and if it is not a judgment, then whether the case should be remanded for redecision or not. It is obvious that if the judgment under appeal cannot be said to be a judgment at all,, then it will be proper to remand this case for redecision by another learned District Judge rather than to decide this appeal after hearing it as if it were a First Appeal.

6. In support of the contention that the learned District Judge has not applied his mind to the case which was before him, counsel has drawn my attention to the following four aspects of the case :‑

(a) According to counsel, the Rent Controller inspected the premises which belonged to the, appellant‑tenant and did not inspect the premises which belonged to the landlords, although the case of the landlords was that they were in need of more accommodation.

(b) None of the partners of the firm for which the accom modation was needed have been examined as a witness, and only one owner of the property has been examined.

(c) The allegation of the present appellant from the beginning was that the application for evicting the appellant was mala fide inasmuch as the object of the respondents‑owners was to recover enhanced rent.

(d) The allegation of the respondents that they were illegally dispossessed from ‑a godown was not proved because they had failed to establish that they were tenants of any such godown.

7. The first objection of counsel respecting the inspection of the premises of the appellant itself is partly explained by the admitted position that the case of the respondents was that the appellant was not using the premises in dispute or at least, not using it regularly. In view of this contention raised by the respondents, the learned Rent Controller inspected the Mill of the appellant as well as the disputed premises. It is noteworthy that no application was made by the present appellant for the inspection of the premises which was alleged by the respondents to be insufficient for business. Mr. Fakharuddin explained this; by saying that applications of this nature are not made to the Rent Controller. He said that as the Rent Controller was entitled to inspect premises, he could inspect the premises which belonged to the appellant. His insistence, according ‑to him, was that oral requests were made to the Rent Controller to inspect the A premises which were said to be inadequate for the requirements A of the respondents, but in spite of those requests he did not inspect those premises. In this connection, counsel for the respondents has rightly pointed out that no objection had been taken in the grounds of First Appeal about the omission of the Rent Controller to inspect the allegedly inadequate premises, Additionally, it is noteworthy that no application was made to the Rent Controller protesting against that omission. It is true that the objection has‑been taken in the grounds of this appeal, and Mr. Fakharuddin has stated that he had raised this question in the First Appeal at the time of his arguments. But there is no reference to those arguments in the order of the learned District Judge, Karachi. Moreover, there is nothing in the judgment of the learned District Judge, which is against the present appellant, to show that it is based on the inspection that was carried on by the Rent Controller. Some of the observations of the First Appellate Authority with respect to the needs of the present respondents are as follows :‑--

"The landlords have approached the Rent Controller for eviction of their tenant/appellant under forced circumstances, i.e. after they were forcibly and illegally evicted from the godown in Baghdadwalla building on Frere Road. Evidence on record shows that the suit premises are required for storing spare parts of radios belonging to Karimi Radio Stores."

Further :

"It has also been satisfactorily proved that Karimi Radio Stores has import licence, and it has actually imported radio parts. No other premises or shop is available to them for storing all these parts."

According to counsel, the above observations are not satisfactory because reference has not been made to that evidence which was in the mind of the First Appellate Court; nor has the First Appellate Court referred to the witnesses or documents on which reliance has been placed by it, by name or by description.

8. The above contention of counsel strikes to me of a far fetched nature, because references by name to the witnesses or by description to the documents, which were in the mind of the First Appellate Authority and were present on the record, do not, appear in this case to have been necessary, nor is it necessary, to my mind, that in every case such a discussion should 'take place. I shall revert to this aspect of the case, when I refer to judicial precedents, after referring to the other contentions which have been raised by counsel.

9. The second contention of counsel respecting the failure of the partners of the firm for whom the premises are required, to appear as witnesses is in disregarded of the fact that the owners of the premises in dispute are father, mother and three sons. Two of these sons are partners of the firm for whom the premises is needed, but in that partnership two more sons of the same parents are also partners. That shows the unity of interest. Moreover, the present premises is being admittedly managed by the father who has appeared and supported the application. In these circumstances, I do not think that it was necessary for those sons, who are the partners of the firm, to have personally come to support the application.

10. In so far as the, third argument of learned counsel respecting the mala fides of the application is concerned, admittedly there is no evidence on the record with respect to the mala fides, excepting the allegation. made by Iftikhar Ahmed (D. W. 2) in one sentence that the respondents wanted to have increased rent. This contention could be met in the way in which it has been dealt with.

11. Lastly, counsel's contention has been that the respondents have failed to prove that the godown from which they have been dispossessed was leased out to them. This contention, to my mind, misses the real point because it is immaterial in this case as to whether it was leased out or not. The fact remains that that accommodation was in the possession of the respondents and, as, pointed out by counsel for the respondents, the evidence of D. W. 1 Qurban Hussain, has established this fact. How they were dispossessed and on what grounds their dispossession can be justified is immaterial. What is material is as to whether on account of the loss of that accommodation, the need of the respondents for more accommodation bas arisen or not. There seems to be hardly any reason for disputing the conclusions arrived at by the Rent Controller as well as the First Appellate Court that such a need has arisen.

12. In view of the above discussion of the four contentions raised by counsel for the appellant it should be easy to conclude that the defences on which counsel has relied and with respect to which, according to counsel, the discussion of the First Appellate Court is not satisfactory to him, are not of such a nature as to collectively or individually constituted a sound criticism. In fact, I explained to counsel at the very outset that, it was possible to come to the conclusion, without elaborately discussing the points which he had intended, to amplify, that this appeal was not a good one, because counsel was avoiding to say anything to show that the conclusions of the two lower authorities were in any way wrong. His insistence was that owing to the techni calities; there should be a retrial by the First Appellate Authority, and he was not even prepared that the evidence should be examined to see the effect of the alleged technical errors. The basis of counsel's stand, therefore appeared to be purely academic, and he has tried to support it by citing judgments. First of all he has relied on Jyotindra Mohan v. Kanai Mahato (A I R 1934 Pat. 66) in which it was observed that:

"This (the portion reproduced in the judgment before this quotation) can in no sense be regarded as a proper discussion of the evidence, and a finding so arrived at by the final Court of fact is not binding in Second Appeal."

The above proposition is undoubtedly correct when the conclusion is that the evidence had not received attention and proper discussion. The second authority is Chhaganmal Marwari v. Indra Keot (A I R 1938 Pat. 609). The learned Single Judge observed in it as follows:‑--

"The learned Judge in appeal simply reiterates on the very first page of the judgment the findings of the trial Court. He has not even referred to the evidence of the witnesses by names or whether he comes to the same conclusion from the oral or the documentary evidence."

Counsel's emphasis was that the witnesses ought to have been referred to by names by the learned District Judge in this case. But even the above observation of the learned Single Judge of the Patna High Court does not support that proposition fully because it says that the alternative for the First Appellate Court was to state that he had come to the same conclusion from the oral or documentary evidence. To lay down that the First Appellate Authority must write the judgment in the manner that he should refer to each witness by name or to each document separately D would be restricting the power of the First Appellate Authorities unnecessarily. The third judgment on which counsel has relied is Anandpal Singh v. Mahabal Singh (A I R 1927 Oudh 95). The learned Single Judge who decided that case has observed in it as follows :‑

"A High Court, before it can consider a finding of fact to be conclusive and binding upon it in second appeal, must be satisfied that such a finding of fact was arrived at by the lower appellate Court upon a due consideration of all the evidence, oral and documentary, produced by the parties in the case."

Further:

"In Surji Singh v. Kunwar Durga Parshad (1905‑8 O C 290) a Bench of the late Court of the Judicial Commissioner of Oudh decided in the year 1905 that an appellate Court must follow the provisions of section 574, Code of Civil Procedure, in disposing of the appeal and that a substantial compliance with the provisions of the section was imperative."

It will appear from the above observation that there is more relaxation of technicalities in it than in the Patna case of 1938.

13. Lastly, counsel has relied on Kristo Gobind Kur v. Gunga Pershad Sunna (23 S W R 266). The head‑note of that judgment sets out the point of the authority by stating that:

"Where the Court of first instance did not give very satisfactory grounds for its conclusion upon a question of fact upon which the case almost entirely turned, and the Lower Appellate Court pronounced the first Court's reasons to be good without going into the merits or recording its view of the evidence, the High Court, in special appeal, reversed the Lower Appellate Court's decision and remanded the case for a re‑hearing; but for the purpose of the re‑hearing directed the removal of the case to the High Court as a regular appeal."

From the above gist of the judgment it would appear that in that case the objection was that the Court of the first instance had not satisfactorily dealt with the questions of fact. Moreover the First Appellate Court had pronounced its judgment without going into the merits or recording its views of the evidence. In this case, the learned Rent Controller has written a lengthy judgment covering 16 pages and the First Appellate Authority has given its views of the evidence that is on the record.

14. In the above circumstances, the sum total of the objection of counsel for the appellant is that he wanted the judgments to‑be in his favour but could only say that evidence has not been discussed by the First Appellate Authority in detail, This emphasis on detail is contrary to some of the observations to which reference Eras been made above. A substantial compliance with the provisions of Order XLI, rule 31, C. P. C. is adequate and such compliance has been made in this case. The weakness of the stand taken by learned counsel for the appellant in this Court becomes glaring when it is noted that no contention was raised by him that‑any of the conclusions was wrong.

In the above circumstances, I dismiss the appeal with costs.

A.H. Appeal dismissed.

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