1. ' This Civil Revision Application under section 25 of the Small Causes Court Act, is directed against the judgment and decree passed on 28th April, 1973, by the Judge, Small Causes Court, Karachi, whereby he dismissed the suit filed by the applicants for recovery of Rs, 2,380.36, claiming the same as arrears of rent due from the respondents.
2. ' It was the case of the applicants that S. M. Yousuf was the tenant of the applicant at a monthly rent of Rs, 100.62. The tenant expired on 25th. February, 1968, leaving behind the respondents as his legal heirs. The applicant finally evicted the respondents on 25th April, 1970, pursuant to the order of the High Court passed in II Appeal No, 5 of 1967, whereby the order of the Controller dismissing the application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, and the order of the first Appellate Court whereby the appeal filed against the order of the Controller was dismissed, were set aside.
3. ' Before the Controller the applicant had claimed rent at Rs, 100.62 per month, but the predecessor- in-interest of the respondents in his written statement had stated that the rent of Rs, 100.62 was inclusive of water charges and sweeper charges, which he had paid and which amount was liable to be deducted to the tune of Rs, 30 per month. The Controller on this controversy had framed the following issue :- "What net amount of monthly rent is the applicant entitled to recover as the monthly rent of the premises in dispute ?"
4. ' On this issue the finding of the Controller was as follows :- "The opponent in his written statement has pleaded that the rent of Rs, 100.62 per month is subject to a deduction of Rs, 30 on account of water charges and sweeper pay as allowed by the K. M. C. So from the written statement of the opponent it is crystal clear that the opponent has admitted that the monthly rent of the premises in dispute is Rs, 70 per month. I do not find an reason at all to disbelieve this version of the opponent when the applicants have miserably failed to prove that actually the monthly rent of the premises in dispute is Rs, 100.62 so as the result of above discussion of mine I come to the conclusion that the monthly rent of the premises in dispute is Rs, 70."
5. ' Against the order of the Controller an appeal was taken to the Additional District Judge, Karachi who on the above issue found as follows :- "The respondent did not produce any witness in the lower Court and reliance was placed on the written statement of the respondent wherein deduction of Rs, 30 was made. This deduction is unwanted. The burden of proof was on the respondent, who has failed to discharge the same and the benefit will go to the appellants, who have examined two witnesses and have stated in conformity with their case."
6. ' He however, dismissed the appeal holding that the predecessor-in-interest of the respondents had not made default in payment of rent.
7. ' Aggrieved by the aforesaid order the applicants filed a second appeal in the High Court which was allowed and both the orders were set aside. On question of rate of rent the discussion appeared in paragraph 4 of the judgment and reads as follows :- "4 The applicants have come in second appeal to this Court and their counsel has argued that the Rent Controller as well as the first appellate Court have been forming opinion about facts in spite of the evidence produced on behalf of the appellants and in the absence of any evidence whatsoever from the other side. Moreover, counsel has argued that in spite of the fact that the first appellate Court has held that the rate of rent was Rs, 100.62 as alleged by the appellants, he has not paid any attention to the default which was undoubtedly committed from the first of January, 1964 upto the 5th of October, 1964 when for the first time two money orders were sent. If the rate of rent is taken to be Rs, 100 per month then the amounts which were sent by the money orders themselves establish default of about six months and if the rate if taken to be Rs, 70 then they establish a default of nine months."
8. ' After the order of eviction of the respondents passed in II Appeal, a suit was filed in the Small Causes Court claiming the arrears of rent of Rs, 2,380.35. It was pleaded in the suit that the total amount due from the respondents was Rs, 7,630.35 and after allowing the amount of Rs, 5,250 deposited by the respondents in Court and received by the applicants, the balance of Rs, 2,380.35 was due from the respondents.
9. ' Before the learned Judge, Small Causes Court the applicants produced the orders of the Controller, the Additional District Judge, Karachi and the judgment of the High Court and relied on the same as evidence and did not lead any other evidence. The learned Judge, Small Causes Court after going through the orders and judgment observed that since the orders passed by the Controller and the Additional District Judge, Karachi were set aside by the High Court and there was no conclusive finding by the High Court that the rate of rent was Rs, 100.62 per month and no evidence was led before him, either oral or in the form of tenancy agreement to show the rate of rent, he therefore, held that the issue whether the respondents were liable to pay arrears of rent at the rate of Rs, 100.62 per month was not proved and he accordingly, dismissed the suit. The applicants have, therefore, come up in this Court by this revision application.
10. ' We have heard Mr. Muhammad Saleem Advocate for the applicants and Mr. Habib A. Rahmani Advocate for the respondents.
11. ' Mr. Muhammad Saleem submitted that the parties had relied on documentary evidence produced before the learned Judge, Small Causes Court in the form of orders by the Controller, Additional District Judge, Karachi and the judgment of the High Court and the finding of the Additional District Judge, Karachi that the rent was Rs, 100.62 per month had become final for no appeal or cross-objections were preferred against the finding.
12. ' On the other hand Mr. Habib A. Rahmani submitted that the judgment in the first appeal having been set aside by the High Court without any modification the finding of Additional District Judge as to the rate of rent is also deemed to have been set aside and that there was no proof as to the rate of rent as claimed by the applicants and therefore, the applicants' suit was rightly dismissed.
13. It appears that before the Controller the controversy was whether the rent was Rs, 100.62 per month as claimed by the applicants or Rs, 70 as claimed by the respondents. This controversy when taken to the Additiona District Judge resulted in favour of the applicants and this finding was no set aside by the High Court and this being the finding of fact had become final so far as the provisions under the West Pakistan Urban Rent Restriction Ordinance, 1959 were concerned. However, Mr. Habib A.
14. Rahmani refered to the passage in the judgment of the High Court which I had already quoted hereinbefore to contend that the question as to what was the rate of rent was not finally determined by the High Court. In my opinion because of reasoning that 'whether the rent was Rs, 100.62 per month or Rs, 70 per month, default was committed, it had become not necessary by the High Court to finally determine the question as to the rate of rent but it cannot be reasonably said that by not determining the question, the finding of the Additional District Judge, as to the rent of the premises being Rs, 100.62 per month was by implication set aside as it was admittedly not expressly set aside. It was for the respondents to have file cross-objection against the finding. No doubt under Order XLI, rule 33, C.P.C. It is open to the appellate Court to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and accordingly, the High Court could have passeany order in respect of the rate of rent but the Court has not exercise any such powers. If the respondents had any grievance against the finding of the Additional District Judge, as to the rate of rent they should have file cross-objection, which they did not file.
15. ' Assuming for the sake of arguments that the finding of the Additional District Judge on the issue of rate of rent was set aside as contended b Mr. Rahmani, still the respondent's predecessor-in- interest in his written statement had admitted that the rent was Rs, 100.62 per month but he has claimed adjustment of the amount paid as water and sweeper charges. The burden of proof of this claim was squarely on the respondents and they having admitted the rate of rent should have proved how much they, had paid on account of the above two charges and also the fact that they were entitled to adjust the same, but they failed to discharge the burden and therefore, there was enough evidence available on the record to support the claim of the applicants. Accordingly, I agree the rate of rent was Rs, 100.62 and the Small Causes Court should have allowed the claim of the applicants. I, therefore, set aside the judgment and decree impugned in this revision application and decree the suit for the amount claimed with costs for it is not otherwise disputed that the amount claimed is not only calculated on the basis of the rate of rent at Rs, 100.62 per month.