' The order of eviction has been made against the appellant/tenant on the ground of personal requirements of the respondents/landlords and the appellant impugns this order dated 5-12-1988 in this appeal. The facts of the case are that the respondents had sought the eviction of the appellant on a number of grounds; firstly, that the appellant had committed default in the payment of rent since the very beginning when PTOs dated 2nd March, 1960 were issued in favour of the respondents in respect of the demised premises. It was explained that in 1964 the respondents had filed an earlier rent application which was dismissed even up to the appellate stage and some rent was deposited in those proceedings up to 1970 and that was realized from the Court but after the dismissal of those proceedings, not on merits but for want of proper notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the appellant had again committed default in the payment of rent; secondly, on the ground of personal requirements of appellant No,1 and his son; thirdly, on the ground of unauthorised conversion of one of the two shops into residential unit; fourthly, on the ground of subletting of one shop; and, fifthly, on the ground of unauthorised additions and alterations and for impairing the value of premises. All the allegations were denied by the appellant and vide impugned order, learned Rent Controller came to the conclusion that the respondents had proved only one ground, that of personal requirements, and on that account ordered the eviction on the appellant from one of the shops. Learned Rent Controller was of the view that one of the shops was being used by the appellant for his residential purposes, with the tacit approval of the respondents, and therefore the respondents could not seek eviction of that shop on the ground of their commercial requirements.
According to the appellant, the respondents had not proved that the demised premises were shop and therefore eviction order on the ground of personal requirements of the respondents of the commercial nature could not be passed even in respect of one shop and it is also contended that the respondents did not prove the bona fides of their personal requirements.
2. So far as the first contention of the appellant is concerned, namely, that the premises are two residential rooms and not two shops and therefore the respondents could not seek eviction of the appellant on the ground that they (the respondents) required them for commercial purposes, I am of the view that there is no force in this contention. The PTDs of the two premises are on record as Exhs.A/16 and A/16-A. They do not refer to either shops or residential rooms. They merely referred to 'premises'. However, the PTOs of the two premises are also on record and they clearly referred to the premises as shops. These PTOs are lying in the second part of the R & P and have not been exhibited but the veracity of these PTOs cannot be challenged and therefore I have no hesitation in looking into them for deciding the question as whether the demised premises are shops or residential rooms. It may be noted that in view of the decision in PLD 1973 Note 109 at page 165, judicial notice can be taken of the documents, the veracity of which cannot be challenged even when they are filed with memo. Of appeal whereas in the present case the PTOs were filed in the trial Court itself. There is therefore no force in the contention of the appellant that the demised premises are residential unit. However, even if the demised premises were residential unit, I am of the view that the respondents could still seek eviction of the appellant on the ground of their commercial requirements because under the Sindh Rented Premises Ordinance, 1979 there is no difference between commercial permises and residential premises. Such distinction did exist in the repealed West Pakistan Urban Rent Restriction Ordinance, 1959 but it has been done away with in the new Ordinance now in force, namely, Sindh Rented Premises Ordinance, 1979. In this connection I may refer to the judgment in the case of Abdul Malik v Haji Aijaz Ahmed (1985 SCM R 1555). In this reported case, the facts were that the premises were let out for commercial purposes and yet the landlord wanted to evict the tenant on the ground of his residential requirements and it was held by their Lordships of the Supreme Court that the landlord could claim possession on the ground of his residential requirements even though the premises were rented out for commercial purposes because the Sindh Rented Premises Ordinance, 1979 did not recognise any distinction between commercial premises and residential premises. Learned counsel for the appellant could not controvert this position. I would therefore hold that the demised premises are shops and therefore the respondents could seek eviction of the appellant on the ground of their commercial requirements and that, even if the demised premises were residential rooms and not shops, even then the respondents could seek eviction of the appellant on the ground of their personal requirements of commercial nature.
2. The appellant also contends that the respondents have not been able to prove the bona fides of their personal requirements. In para 4 of the ejectment application the respondents had pleaded that the respondents required one shop for his business purposes and one shop for the business requirements of his son and that they had no shop in Karachi and were doing their business in a small rented shop far away from main city. No doubt, the requirements were not very clearly spelled out in the jectment application but affidavit-in-evidence of A.W.1 Syed Akhtar Ali is very specific on the point. Here, he stated that he and his son were engaged in the business of repairs of refrigerators, air-conditioners, shipping machines, etc. And they also repaired machinery of ships and in this they were handicapped for two reasons. Firstly, the rented shop in which the son was doing his business was located in Federal `B' Area which was far away from the Harbour from where he got most of his business and it was inconvenient for him and his son to manage the business from such a far away shop. As for Syed Akhtar Ali himself, he stated that he did not have even rented shop and did his repair work either at the far away shop of his son in Federal 'B' Area or at the repair shop of some friend. According to him, the demised shops, being located in Kharadar were very near to the West Wharf Keemari and therefore very suitable for his business requirements and the business requirements of his son. The son has also filed his affidavit-in- evidence (A.W.3 Syed Gulzar Ali). In his affidavit-in-evidence Syed Gulzar Ali stated that he was son of respondent No,1 Syed Akhtar Ali, that he and his father needed two separate shops near the shipping area of West Wharf and Keemari and that at the moment they did not have any shop anywhere in Karachi. In cross-examination he stated that he had training in Refrigeration and Air- Conditioning and in the Rewinding of the Electric-motoRs, The appellant could not rebut this evidence. He had claimed that the respondents have their own shop and in para. 5 of the written statement he had, even stated that the respondents owned several premises. He has, however, produced no evidence that the respondents are in possession of any other shop. As a matter of fact, the respondents have produced rent receipts Exhs. A/4, A/5 and A/6 to show that A.W.3 Syed Gulzar All (son of respondent No,1) is working in a rented shop. I am satisfied that the learned Rent Controller rightly decided that the respondents had proved the bona fides of their personal requirements.
4. In view of what has been stated above, the appeal is liable to be dismissed. However, learned counsel for the respondents agitated the issue with respect to the default in the payment of rent and stated that the learned Rent Controller had erred in holding that the respondents had not proved default in the payment of rent. Learned counsel for the appellant contested the right of the respondents to contest the findings of the learned Rent Controller on the issue of default on the ground that the respondents had neither filed any cross-appeal nor even cross-objections.
However, it appears to me that the respondents can agitate the findings on the issue of default, which was decided against them by the learned Rent Controller, even without filing cross-appeal or cross-objections. In holding so, I get support from the judgment in the case of Ismail v. Mst. Sher Bano (1988 SCM R 772). The facts of this reported judgment are almost identical with the facts of the present appeal. The landlady Mst. Sher Bano had sought the eviction of her tenant, Ismail, on the ground of default in the payment of rent as well as on the ground of her personal requirements.
Learned Rent Controller decided the issue of default in favour of the tenant and the issue about personal requirements in favour of the landlady and ordered eviction of tenant. The tenant went in appeal before the High Court which reversed the finding on the issue of personal requirements of the landlady but at the same time also reversed the finding on the issue of default and held that it was proved that Ismail had committed default in payment of rent and the first rent appeal was accordingly dismissed even though Mst. Sher Bano had not filed either cross-appeal or even cross-objections, Then Ismail went in appeal before the Supreme Court which held that since the order of Rent Controller was in favour of Mst. Sher Bano she was therefore not an aggrieved party and therefore there was no occasion for her to file a cross-appeal or even cross objections and when the appeal filed by Ismail came up for hearing before the Court, Mst. Sher Bano could agitate the findings of the learned Rent Controller in respect of the issue of default in the payment of rent.
The order of the High Court was therefore maintained by the Hon'ble Supreme Court. In view of this judgment, learned counsel for the appellant cannot be suffered to argue that filing of counter- appeal or counter-objections was necessary if the respondents wanted to challenge the findings of the learned Rent Controller on the point of default. I would therefore proceed to take into consideration the evidence on the the point of default.
5. It is an admitted position that the appellant has not paid any rent whatsoever to the respondents right from the inception of statutory tenancy which came into existence on the issue of PTOs in favour of the respondents on 2nd March, 1960. The respondents had earlier instituted a rent case in 1964 and order for the tentative deposit of rent was made in that case and the appellant deposited some rent in furtherance of the said rent order. This rent has been withdrawn by the respondents.
There is no clear-cut evidence as to the month up to which the rent was deposited in the said rent case. However, it is an admitted case that rent was deposited in that rent case up to 1970-71. For the sake of avoiding any controversy I presume that rent was deposited in that case up to December, 1971. The appellant was therefore under compulsion to prove that he had been paying rent to the respondents since January, 1972. In his affidavit-in-evidence, which was filed in May, 1988, the appellant stated that rent up to December, 1987 been paid but no rent receipts has been issued. He even stated that he mostly paid rent in advance and on occasions even two years' rent was paid in advance. In the absence of any evidence in support of this claim, it is not possible to believe the payment of rent in this manner. Admittedly, there was litigation between the parties from 1964 up to 1970 and that previous rent application of the respondent was dismissed on the ground of want of a valid notice under section 30 of Displaced Persons (Compensation and Rehabilitation) Act, 1950. As such, there was no occasion for the appellant to pay even one month's rent without obtaining any receipt. If there had been cordial relations between the parties, it could have been argued that rent was being paid without obtaining receipts but not in the present case when the parties were not on good terms and they had already litigated up to the High Court where the respondents had lost the case. The learned Rent Controller in holding that the respondent had not proved default, appears to have been impressed by the fact that although default is claimed from 1970 but the ejectment case was not filed till March, 1987, for a long period of 17 years, and it is unthinkable, that any landlord would sit back for such a long period when the default in the payment of rent was being committed. This is, however, no argument. The rent is very nominal, a mere Rs, 31.50 per month and the respondents might very well have ignored the default in its payment for such a long period because they did not consider it worthwhile to file another rent application only on the ground of default in the payment of rent and they waited till they felt the necessity of obtaining possession for their personal requirements as well. The initial onus to prove default was no doubt upon the respondents/landlords but once the respondents alleged that the appellant had not paid the rent, the onus shifted to appellant to prove its payment by positive evidence. This positive evidence is missing in the present case. Mere word of the appellant that he had paid rent up to December, 1987 but without obtaining receipts therefore cannot be believed. I am therefore of the view that the respondents had also proved the issue of default and as such the appellant is liable to eviction on the ground of default also, in addition to the ground of personal requirements. I would therefore set aside the finding of the learned Rent Controller on issue No,3.6.
6. It may be noted that the ejectment application was in respect of two shops and the learned Rent Contrller had passed the eviction order against the appellant only in respect of one shop on the ground that the other shop was under the residential use of the appellant and therefore could not be got vacated by the respondents for their commercial requirements. Learned counsel for the respondents argued that once appellant/tanant filed the appeal, the entire case stood reopened and therefore the respondents were entitled to agitate this apspect of the ejectment order and seek ejectment in respect of the other shop as well. In this regard learned coiunsel for the respondents relied upon the judgment in the case of Salahuddin Butt v. Punjab Service Truibunal (PLD 1989 SC 597) in which it is held that Order 41, rule 22 and rule 23 confer very wide discretion on the appellate Court. This judgment does not support the contention of the learned counsel for the respondents that the respondents have a right to challenge the findings of learned Rent Controller without filing of counter-appeal or counter-objections. Whereas the respondents can support the impugned judgment or order without filing counter-appeal of counter-objections, they cannot asssa il the impugned judgment or order without filing counter-appoeal or counter-objections. I am therefore of the view that the learned counsel for the respondents cannot assail the judgment of the learned Rent Controller in so far as it ordered the eviction of the appellant from one shop instead of from two shops. If the respondents had felt aggrieved from this part of the impugned judgment or order of the learned Rent Controller, it was incumbent upon them to file a counter- appeal or counter-objections. Moreover, it may be noted that it is always open to an appellant to withdraw his appeal at any stage. Now, if the appellant withdraws his appeal, what shall happen to relief being sought by the respondents as regards the eviction of the appellant from the second shop?
7. In short I find no merit in this appeal and the same is dismissed. The eviction of the appellant on the ground of personal requirements of the respondents is maintained and, in addition, the findings of the learned Rent Controller on issue No,3 in respect of default is also set aside and it is held that the evidence on record sufficiently establishes that the appellant had committed default in the payment of rent with effect from 1st January, 1972 and on this ground also he is liable to be evicted. The further plea of learned counsel for the respondents that the appellant should be ordered to vacate even the other shop is without any merit because in order to seek this relief it was incumbent upon the respondents to file a counter-appeal or counter-objections. The parties are left to bear their own costs.