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First Rent Appeal No.749 of 1986, decided on 4th May, 1987.

--S.15(2)(vii)--Ejectment of tenant--Question of good faith, determination of--Question of good faith in regard to need of landlord has to be established by landlord.

---O.XLI, R.27--Sind Rented Premises Ordinance (XVII of 1979), S.21(1)--Production of additional evidence at appellate stage--Discretion of Court, exercise of--Court has been vested with discretion under O.XLI, R.27, C.P.C. to allow production of additional evidence at appellate stage, if in its opinion, such evidence ought to be produced to enable Court to pronounce judgment in the case.

--O.XLI, R.27--Sind Rented Premises Ordinance (XVII of 1979), S.21(1)--Events subsequent to conclusion of proceedings--Consideration of--Events subsequent to conclusion of proceedings before Court, held, could be considered even at appellate stage provided that parties were given opportunity to amend pleadings, and to lead evidence to explain circumstances under which subsequent developments took place.

---S.15(2)(vii)--Ejectment of tenant--Bona fide and good faith of landlord-- Proof-- Landlord claiming eviction of tenant on ground of personal bona fide need alleged that he had finally been ordered to vacate premises which he himself was occupying as a tenant --Ejectment order against landlord from his rented premises was only in respect of one of four tenements which were in his occupation, while other tenements were still in his possession--Bona fide or good faith of landlord in respect of premises in dispute, held, was not sufficiently established in circumstances--Doubt in respect good faith of landlord having been created by production of certain documents in Court by tenants, Appellate Court, remanded case to Rent Controller to decide case afresh in light of fresh points raised by tenants.

Munawar Ghani for Appellant.

Wajihuddin Ahmed and Mrs. Surrya Rahim for Respondents.

Dates of hearing: 2nd and 9th March, 1987.

The appellants have assailed the order passed by the learned VIIth Senior Civil Judge and Rent Controller (South), Karachi, dated 9-9-1986, ordering the appellants to vacate the shop in dispute within sixty days of the date of the order and hand over its vacant possession to the respondents.

2. The facts of the case, briefly stated, are that the appellants were tenants of the respondents in respect of a shop on the ground floor of the building known as Hajra Bi Building, situated on Zaibunnissa Street, Sadar Karachi at a monthly rent of Rs.350/-. In 1982 the respondents filed an eviction application against the appellants seeking their ejectment from the shop on the ground of personal requirement. According to them they were running their business of imports and exports in the premises situated on the ground floor of the building known as Dadabhoy Chambers but they were apprehending their ejectment from the premises. It was averred by them; that on an application filed against them by the landlord of Dadabhoy Chambers, they had been ordered to vacate one of the tenements in their possession in such building by the Rent Controller. The appeal filed by them first before the High Court and then before the Supreme Court and also been dismissed. Therefore, according to the respondents, there was no other suitable accommodation in their possession and therefore, the premises occupied by the appellants were required by them bona fide and in good faith for their personal use.

3. The application was resisted by the appellants, according to whom the same was filed with mala fide intention in order to harass the appellants. It was also disputed if the, shop in' question suited the requirements of the respondents. The first and the second floor of the building according to the appellants, had been lying vacant but the same were let out by the respondents on pugree not long before the alleged necessity of the respondents arose.

4. The learned Controller after recording evidence in the case came to a conclusion that the case of the respondents had been established' and consequently he ordered the appellants to vacate the shop in question.

5. I have heard Mr. Munawar Ghani, learned counsel for the appellants and Mr. Wajihuddih Ahmed, learned counsel for the respondents.

6. As far as the question of good faith in regard to the need of the landlord is concerned, there can hardly be any cavil with the proposition that the same is to be established by the landlord. In the present case, although according to the respondents the need for the demised premises arose for them after they were ordered by the Rent Controller to be ejected from one of the four tenements in their possession in Dadabhoy Chambers and their appeal was finally dismissed by the Supreme Court, but admittedly, all the tenements were still in possession of the respondents at the time of filing of the ejectment application by them against the appellants. In any case, the ejectment cases filed in respect of three of the tenements in possession of the respondents in Dadabhoy Chambers were still pending. This important factor in the case appears to have been completely ignored by the learned Controller.

7. During pendency of these proceedings an application under Order XLI, Rule 27, C . P. Code was moved on behalf of the appellants as they wanted to introduce certain documents in evidence which were not in their possession earlier and which according to them had material bearing on the issues involved in the case. The documents marked as Annexures 'A' to 'C' were sought to be introduced by the appellants at the time when arguments in the case had already been concluded. Notice of the application (C . M. A . No.481 of 1987), was therefore sent to the respondents and on 9-3-1987 Mrs. Surraya Rahim, Advocate appeared on behalf of Mr. Wajihuddin Ahmed and opposed the application, although no counter-affidavit had been filed on behalf of the respondents.

8. Order XLI, Rule 27, C.P.C. vests the- Court with discretion to allow production of additional evidence at the appellate stage if in its opinion, such evidence ought to be produced to enable it to pronounce judgment in the case. There is no contest on the point that documents sought to be introduced in evidence at this stage have material bearing on the issues involved in the case. These documents which are certified copies from the record of the Supreme Court, indicate that the landlords of Dadabhoy Chambers and the respondents had resolved their dispute outside the Court and entered into an agreement, dated 22-4-1986 whereby the latter had agreed to vacate the premises in their possession in Dadabhoy Chambers in order to facilitate its demolition by the Karachi Building Control Authority. A copy of the agreement which has been marked as Annexure 'C' further indicates that the landlords of the aforesaid building had on their part agreed to provide 2000 square feet of space facing M.A. Jinnah Road to the respondents on the first floor of the building after its reconstruction. A copy of the compromise application, marked as Annexure 'B' has also been filed, which indicates that appeal of the respondents pending before the learned Supreme Court in connection with the ejectment case had been disposed of in terms of such compromise. Mr. Munawar Ghani, learned counsel for the appellants has argued that since as indicated by these documents, the respondents had themselves agreed to vacate the premises in their possession in Dadabhoy Chambers, the claim of the respondents was not bona fide.

9. The first question is, whether the documents marked as Annexure 'A" to C-1' can be taken on record of the case and admitted as evidence, or in other words, can this Court take notice of subsequent events which were not brought to the notice of the learned Controller during the pendency of proceedings before him. The Supreme Court in The Province of East Pakistan v. Major Nawab Khawaja Hasan Askary P L D 1971 S C 82, held that rights of parties must be determined as on the date of the suit and not on the basis of rights which accrued to them after the institution of the suit. However, in the case of Mst. Amina Begum v. Mehar Ghulam Dastgir P L D 1978 S C 220 which also arose out of rent proceedings, it was held by the Supreme Court that the Rent Controller and the appellate Authorities under the Rent Ordinance, in exercise of discretion vesting in them, were not precluded from allowing any bona fide amendments and taking notice of subsequent events in order to suitably mould the relief on the basis of the altered circumstances in order to avoid multiplicity of litigation and shorten the proceedings. I am accordingly of the view that events subsequent to the conclusion of proceedings before the Court can be considered even at appellate stage provided that the parties are given opportunity to amend the pleadings and lead evidence to explain the circumstances under which the subsequent developments took place.

10. Turning to the present case, the only reason assigned by the learned Controller for ordering the ejectment of the appellants from -the demised premises is that the respondents had been finally ordered to be ejected from the premises in their possession in Dadabhoy Chambers after dismissal of their case by the Supreme Court. Such admittedly, was not the position as the case to which the learned Controller has referred only related to one of the four tenements in possession of the respondents. I am, consequently of the opinion that bona fides or good faith of the landlord has not been sufficiently established. In any case, a doubt in this respect has definitely been created by production of documents marked as Annexures 'A' to 'C' to which I have just referred and a clear picture can only emerge after all these relevant factors are considered afresh. I am conse quently of the view that under such circumstances it would be most appropriate that the learned Controller should deal with these fresh points rather than this Court deciding appeal on the points which were not canvassed before the learned Controller.

11. For the aforesaid reasons this appeal is allowed and the impugned order is set aside and the case is remanded to the Controller for fresh disposal in accordance with law. Both the parties shall be at liberty to amend their pleadings and adduce any oral or documentary evidence before the learned Controller which may be found necessary by them. The case shall be decided by the learned Controller as expeditiously as possible and in no case it shall take him more than three months to dispose of the case after receiving record of the case from this Court. There hill be no order as to costs in view of the questions raised.

H. B.T./M-233/K Appeal allowed.

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