' In February, 1977, respondents filed a petition for ejectment of the appellant from a shop on the ground of bona fide personal need of respondent No, 1, with whom respondent No, 3 also intended to join in the business to be set up therein. He resisted the application on a number of pleas and, in result, it was set down to be tried on the following issues :-
(1) Whether the petition has not been signed by all the petitioners, if so, its effect? 0. P. R.
(2) Whether the petition has been filed by a duly authorised person? 0. P. P.
(3) Whether petitioner No, 1 in good faith requires the premises in dispute for personal use? 0. P. P.
(4) Relief.
' Necessary evidence was led by the parties wherein, apart from a number of documents produced on both the sides, six witnesses (including three applicants) were examined by the landlords and thirteen witnesses were produced by the tenant. After considering the evidence, for the stated reasons, learned Controller refused to accept the evidence of the petitioners and whereas he decided the first two issues in . Favour of the landlords, he reached a finding adverse to them under issue No, 3 and dismissed their petition on 4-3-1978. An appeal filed there against by the landlords was heard by a learned Additional District Judge acting as Appellate Authority who, however, concluded that petitioners Nos. 1 and 3 did not have any suitable place for commercial purposes and that one room on the first floor of the same building which is in possession of petitioner' No, 1 where he is carrying on his business cannot be called suitable for his needs. In consequence, he reversed the finding of the Controller under issue No, 3 and upon accepting the appeal by his order dated 16-1-1979, directed the tenant to hand over vacant possession of the shop within three months.
2. , In opposition of the appeal before the Appellate Authority, apart from reiterating the plea which had found favour with the Controller, namely, gradual enhancement of rent from Rs, 80 to Rs, 200 p.m. In a span of 22 years, emphasis was also laid on the eviction petitions filed in the years 1968 and 1969 by the deceased father of the landlords which had ended in compromise but learned Appellate Authority did not regard either of them to be sufficient for casting doubt on the plea of the landlords regarding the need for setting up their own business which was held to have been independently proved. There was yet another argument raised by the tenant that whereas in a notice (Exh. P. 3) assertion was made to the mere effect that the shop was required for the personal use and occupation of Ch. Abdur Rehman Gill, a new claim, has been made in the petition that Ch. Abdur Rashid Gill had also to join in the business after giving up service at another shop. Learned Appellate Authority did not find any contradiction in the two stands and held that therein the landlords cannot be considered to have anywise deviated from the original stand that the shop was required for the personal use of respondent No, 1 whose admitted business of sale of fans and bulbs in only one 'room in the upper floor in July 1976 was only unavailing in the context of their right to have a regular shop on the ground floor suitable for their business. Another objection raised by the tenant with regard to deficiency of court-fee of the value of Rs, 5 on the appeal could not prevail for the reason of the deficiency having been made up by the landlords on the spot. After thus repelling all the contentions of the tenant, learned Additional District Judge- felt convinced on the basis of the evidence led that the bona fide requirement of the petitioners had been proved on the record and reversed the finding of the Controller under issue No,
3. Tenant has now come up to this Court in this second appeal.
3. Learned counsel for the appellant urged at the outset that since the respondents' appeal below was deficiently stamped by Rs, 5, therefore, it could neither be proceeded with nor may the learned Additional District Judge have got the deficiency made up at that point of time because limitation for filing the appeal had long run out, but when he was pointed out that the rate of monthly rent was mentioned in para. 1 of the petition for ejectment as Rs, 180 along with the figure Rs, 200 which could have genuinely led to the mistake in calculation into paying a negligible deficiency of the value of Rs, 1.50, if calculated on the forme figure and a shortage of the value of Rs, 15 only if worked on the late figure, learned counsel did not seriously press his plea with regard to the alleged contumaciousness and negligence in payment of court-fee which, there is no doubt, the Court could have got made up under the provision A of section 149 of the C. P C. Even otherwise, nothing material may come out of this contention because as has been held in Rachappa Subrao Jadhav Desai v. Shidappa Venkatrao Jadhav Desai (1), a matter of court-fee is between the subject and the State and a litigant cannot be allowed to use it as a weapon of technicality against the adversary and since the deficiency was got made up as soon as pointed out, therefore, the objection about deficiency in court-fee is not anymore live.
4. Next, learned counsel asserted that after the- decision made in favour of the landlords by the Appellate Authority there was a demand made by the landlords from the son of the appellant for payment of heavy Pagri and this fact was intended to he proved by him on the basis of additional evidence sought to be led on the basis of C. M. No, 1760/C of 1979. I do not see how such a plea, even if proved, may have any repercussion on the bona fide requirement of the landlords which has been held to have been independently proved in this case. It has been held in Badruddin Hasan Farooqui through his 5 legal representatives v. Manghi Industrial Home (2), that even a demand of higher rent does not, by itself, cast doubt on an independently proved plea of the landlord with regard to his bona fide requirement. It can well be possible that since the appellant was under an order of ejectment, therefore, his son may have had some {{FOOT NOTE}}
(1) A 1 R 1918 P C 188 (2) PLD 1976 Kar. 620 {{FOOT NOTE}} concern for him to continue in possession of the property and it can be that in that context somebody may have mentioned Pagri only in some' light vein but since such a demand is not claimed to have been made from the tenant himself, therefore, no importance can be attached to such a plea. C. M. No, 1760/C of 1979 is accordingly rejected.
5. The only other argument raised by the learned counsel with regard to the case itself is that learned Additional District Judge has not specifically mentioned in his judgment the evidence which may have been considered by him to reach the I conclusion in favour of the landlords regarding their requirement for personal occupation and the bona fides thereof. It is urged that his judgment falls short of legal requirements which learned counsel has not specifically pointed out and has, in this behalf, merely mentioned Harmes and another v. Hinkson (1), wherein rule laid down, however, is that an Appellate Court ought to pay respect to the opinion which a Judge who has watched and listened to the witnesses has formed as to their credibility. There is no cavil with this basic rule which, however, is not to be understood to have laid down that an Appellate Court may not differ with the conclusions reached by the Court of first instance on questions of fact because to understand it thus would render the appellate power negatory despite the First Appellate Court being the final Court on questions of pure fact so that its conclusions on such questions reached on the basis of evidence on the record are not open to inference. Suffice it to refer to Mst. Bhirawan and 3 others v. Ahmad Bakhsh.And others (2), wherein this rule has been considered and explained at page 189 of the report. I have not been able to discover any reason for the learned counsel to have referred to the above authority because in this case there is no disregard made of the rule laid down by the Privy Council. I am not aware of any rule of law requiring an Appellate Court to mention in its judgment each and every piece of evidence considered by it. Ali that Order XLI, rule 31 of the C. P. C. Requires is that the appellate judgment shall contain the points for determination, the decision there and the reason therefor. The appellate judgment passed in this case fully satisfies these requirements and since the parties were represented by counsel in the appeal below, therefore, a presumption may legitimately b drawn that they had duly drawn its attention to the relevant evidence and the presumption rather is, as is laid down in AIR 1937 Lah. 410, that where there is nothing to show that a certain oral evidence may have been relied before the First Appellate Court there it gets excluded from being considered in a second appeal. I am unable to contribute to the view of the learned counsel that even in rent cases the technical requirements relating to civil cases and the judgments recorded therein may be in need of being enforced. In Khuda Bakhsh v. Fida Hussain (3), which was followed in Punjab Hardware Machine Tools Ltd., Karachi v. Wazir Ali (4), it was observed that proceedings before a Rent Controller do not deserve to be judged strictly from the point of view of mere technicalities as observed in law Courts. Furthermore, since under the relevant provision of section 13 of the Punjab Urban Reset Restriction Ordinance, 1959 subjective satisfaction of the authorities with regard to the requirement in E good faith of the applicant is the primary requirement which has been recorded in .This case in favour of the respondent-landlords by the Appellate Authority on the basis of consideration as a whole of the case and it has {{FOOT NOTE}}
(1) AIR 1946 P C 156 (2) PLD 1955 Lah. 187
(3) PLD 1963 Kar. 446 (4) PLD 1976 Kar. 233 {{FOOT NOTE}} not been shown that any one of the conditions provided for in the statute to deny relief on that score had been proved and muchless has it been shown that the finding so reached by the Appellate Authority was not justified on the record, therefore, contention of the learned counsel cannot prevail. I have myself perused the evidence with the assistance of the learned counsel.
Need of the landlords stands admitted by the witnesses of the tenant and more particularly by Ghulam Rasool (R. W. 2) who has admitted in cross-examination that Abdul Rehman has no permanent service and he just goes about from door to door, therefore, contention of the learned counsel is repelled. Case of the respondents is entitled to be considered in the light of their circumstances, as has been held in Muhammad Yasin Aliahwala and another v. Mehrban Sherwin Irani (1). I am satisfied that respondent No, 1 is in need of a suitable shop for establishing business therein and his occupation of a room in the upper-floor of the building does not disqualify him from seeking eviction from this shop, as has been held in Aliah Ditta v. Mst. Rasoolan Bibi and 7 others (2) and Punjab Hardware and Machine Tools Ltd., Karachi v. Wazir Ali. Muchless may an adverse inference follow from the eviction claimed more than a decade before which ultimately ended in compromise. Reference is invited to Aliah Rakha v. Muhammad Shafi (3).
6. The order for eviction passed against the appellant is unexceptionable on the record and there is no case made out for interference. Hence this appeal is dismissed with costs. {{FOOT NOTE}} (1)1982 CLC 478 (2) 1976 SCM R459
(3) 1978 SCMR 437 {{FOOT NOTE}}