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First Rent Appeal No. 554 of 1982, decided on 21st May, 1985.

S. 21(1)--Failure of Rent Controller to appreciate evidence- Consequences--Both parties had not realised importance of leading evidence irr, support and in rebuttal of case--Rent Controller instead of taking note of documents of compromise filed by landlord laid too great a stress and emphasis on difference in property numbers and also failed to properly appreciate absence of evidence on part of tenant -Case, held, fit to be remanded to Rent Controller for decision after recording evidence of both parties afresh in circumstances.

Zahid Marghoob for Appellant.

A. Rashid for Respondents.

Date of hearing: 21st May, 1985.

This appeal is directed against the judgment of I X Senior Civil Judge and Rent Controller, Karachi, dated 15-3-1982 whereby he had dismissed the ejectment application filed by the appellant against the respondent on the ground that there was no proper evidence of relationship of landlord and tenant and that there was discrepancy in the number of property mentioned in the application from the one mentioned in the extract of City Survey Record.

2. The appellant's counsel has urged that the dismissal of application was not justified in view of the fact that he hail produced his affidavit and had allowed himself to be cross-examined while the respondents had failed to produce Mst. Razia for cross-examination after she had filed her affidavit.

3. Submission is that there was no rebuttal to the submissions made by the appellant in his affidavit and the cross-examination.

4. Mr. Abdur Rashid on the other hand states that it is only in this appeal that the appellant has produced the lease deed executed in his favour by the K.M.C. 1 find that Annexure-C mentions Plot No. 3-A/29-A, C. Area, Liaquatabad, Karachi while para. 1 of the application mentions No. 3/29-A, C. Area, Liaquatabad, Karachi. The respondent has filed a photo copy of lease granted in favour of one Mst - Fatima in respect of Plot No. 3/29-A, C. Area, Liaquatabad, Karachi.

5. The appellant has also relied upon an agreement which was arrived at between the parties through certain persons and Mr. Zahid Marghoob has stated that the same had been filed alongwith the affidavit of Muhammad Hassan and it was not even denied to have been executed by the other side. However, none of the witnesses to the said agreement was examined by the appellant.

6. There is an explanation by the respondent's counsel that the respondent No.l did not present herself for cross-examination because she is an illiterate woman. I do not want. to adversely comment upon it but I would only say that the respondent should have presented herself for cross-examination so that the truth of her affidavit could be decided. She has failed to do her duty but in view of the fact that she appears to be a poor woman and illiterate, as explained by the respondent's counsel. I do not want her interest to be prejudiced in any manner.

7. It appears to me that the Rent Controller had failed to take note of document of compromise filed by the appellant and has laid too great stress and emphasis on the difference in number of the property and has further failed to properly appreciate the absence of evidence on the part of the respondent. It appears to me that both the parties have not realised the importance of leading evidence in support and in rebuttal of the case and, therefore, it is a fit case which should be remanded for decision by the Rent Controller after recording evidence afresh.

8. I, therefore, set aside the order of IX Rent Controller, Karachi, dated 15-3-1982 and remand tire case back to him for deciding it afresh after recording evidence of both the parties. The parties are directed to present themselves before the Rent Controller on 7th July, 1985. The case should be disposed of within 4 months of receipt of this order.

H.B.T.

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