1982 PLP 1241 (CLC)

This appeal is directed against the order dated 29‑8‑1981 passed by the learned 7th Rent Controller, Karachi in R. C. No. 2175/81 under section 14 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) in respect of the tenement in question, which is situated on the ground floor in a bungalow situated in P. E. C. H. S., Karachi. The brief facts leading to the filing of the above case are that the respondent filed the above rent application under section 14 alleging therein, that he was retiring from the service of the Government of Pakistan at Islamabad, with effect from 15‑5‑1981 under a notification dated 9‑11‑1980 (copy of which was annexed to the rent Application). It was also averred that the applicant had served section 14's notice dated 4‑1‑81 through his Advocate, which was replied to by the respondent through letter dated 31‑3‑1981 declining to vacate the premises on the pleas contained therein. It was further averred that after the expiry of 60 days period from the date of service of the notice, the Respondent had filed the above rent application. The above rent application was resisted by the present appellant and inter alia it was averred in the written statement that the application was not competent as a previous Rent Case No. 1459/74 under section 15 of the late West Pakistan Urban Rent Restriction Ordinance; 1959 was pending, that the Respondent owned an immovable property consisting of a bungalow, bearing No. 17, Street 25, F‑8/2, Islamabad, and therefore, section 14 of the Ordinance was not applicable. It was also pleaded that in fact the Respondent had already sold the bungalow in question and had given possession of the ground floor m part performance of the sale agreement to the vendee. It was further pleaded that the Respondent firm had different partners and the main management partner was Nizamuddin, who had since died and, therefore, all his legal hers were necessary parties to the rent application. The applicant in support of the application has produced the notification, the copy of the notice, the posted acknowledgement receipt and offered himself to cross‑examination, whereas the respondent examined 3 witnesses. The learned Rent Controller through the order under appeal granted the above application. The appellant being aggrieved by the above order has filed the present appeal. 2. (a) In support of the above appeal Mr. Khurshid Anwar Shaikh, learned counsel for the appellant has made following submissions ; (i) That from the reading of the evidence on record, the only conclusion which is possible to be drawn is that the respondent in fact does not need the tenement in question for his personal occupation but in fact wants to get it vacated for completing the sale transaction. (ii) That on the death of the managing partner Mr. Nizamuddin, who had been residing with his family in the tenement in question, the above firm stood dissolved and, therefore, it was incumbent upon the Respondent to file the case against the legal heirs of late Nizamuddin. (iii) It was next contended that whereas a Civil Suit can be filed against a firm, but a rent application cannot be filed against a firm but it is to be filed against the partners of the firm individually as the principle applicable to a suit cannot be pressed into service in a rent case. (b) Reverting to the first contention of the learned counsel for the appellant that from the evidence on record the only inference, which can be drawn is that the Respondent does not require the tenement in question for his personal occupation, but for the completion of the aforesaid transaction, Mr. Khurshid has invited my attention to the cross‑examination of the Respondent particularly to the factum that he admitted that his wife and 3 children out of 7 children are still residing in Islamabad in the house which was allegedly owned by him. He has also invited my attention to the fact that according to the statement ‑of the respondent in the cross‑examination, he in fact wanted to sell the bungalow in question id 1978 and also to the fact he had allegedly gifted the bungalow owned by him in Islamabad in 1979 to his wife but at the same time he admitted that he was constructing the first floor of the aforesaid bungalow at the time of cross‑examination. The Photos were produced through him in the cross‑examination Exh. 4‑E and 4‑F to show that the first floor was being constructed. He has further invited my attention to the statement of the 3 witnesses, namely, Messrs Abdullah Nizam, Syed Raza Hussain Rizvi and Muhammad Nasir Siddiqui in support of his contention that in fact the Respondent had sold the house to the occupant of the ground floor. In my view the question is as to whether the Respondent still owns a bungalow in Islamabad or not or whether he has in fact transferred it to his wife in 1979 or not, are not relevant for the purpose of deciding an application under section 14 of the Ordinance in view of subsection (2) of the aforesaid section. It may be pertinent to reproduce hereinbelow subsection (2) of section 14 of the Ordinance, which reads as follows :‑-- "Section 14.‑(1)

(2) The landlord shall not be entitled to avail the benefit of subsection (1) if he is in occupation of a building owned by him in any locality." It may be noticed that subsection (2) of section 14 provides that a landlord shall not be entitled to avail the benefit of subsection (1) i.e. of the summary proceeding, if he is in occupation of a building owned by him in any locality. The words `any locality' in my view cannot cover the occupation of bungalow in Islamabad even if it is to be held that the said bungalow is still owned by the Respondent and that he is still in occupation of the same. The words `any locality's are to be construed with reference to the city where the tenement in respect of which ejectment is sought under section 14 is situated. It may be pertinent to observe that the Ordinance is applicable only to the Province of Sind and, therefore, with no stretch of imagina tion the words `any locality' employed in subsection (2) of section 14 can cove a bungalow owned and allegedly in occupation of the respondent at Islamabad. It is true that the Respondent in his cross‑examination admitted the factum that he attempted to sell the bungalow in question in 1978 as he needed money for the construction of the bungalow at Islamabad, but he has emphatically denied that in fact he had sold the bungalow in question. The three witnesses examined by the applicant in their cross‑examination have admitted that no sale agreement was executed in their presence by the Respondent in favour of the occupant of the ground floor of the bungalow in question. It has also been admitted by them that no money was passed between the parties in their presence. However, it has been averred that after the purchase of the bungalow in question by the occupant of the ground floor, he held a Milad Sharif to celebrate the purchase. In my view holding of a Milad Sharif will not necessarily mean that the occupant has purchased the bungalow newly occupied by him. Milad Sharifs are being held even by the tenants when they occupy new tenements. Even otherwise, in my view the question of bona fide or mala fide could not have been gone into by the learned Rent Controller as has been rightly observed by him in his order under appeal. This point was decided by me in the case of Mumtazuddin Ahmed v. Mst. Sultan Jahan Begum, (P L D 1981 Kar. 329) in which it was pointed out by me the difference in the language employed between sections 14 and 15 of the Ordinance. In the former section the words 'good faith' have been deliberately omitted by the legislature, whereas in the latter section the words 'good faith' have been inserted. The inference which is to be drawn by the above deliberate departure by the Legislature in omitting the words 'good faith' in section 14 is that this question cannot be examined by a Rent Controller or the first court of appeal while deciding an application under section

14. My above judgment was upheld by the Supreme Court while refusing leave to appeal in C. P. S. L. A. No. 34/1981 by an order dated 18‑2‑1981. In this view of the matter even otherwise the points urged by the learned counsel for the appellant referred to hereinabove are not relevant for the purpose of determining an application under section

14. Furthermore, no concrete evidence was brought on record by the appellant, from which it could have been inferred that factually the respondent had sold the bungalow in question or that he does not intend to occupy the tenement in question personally. (e) With reference to the second contention that upon the death of Mr. Nizamuddin the appellant firm stood dissolved and, therefore, the rent case should have been filed against the legal heirs of late Nizamuddin and not against the firm itself, it may be stated that it is an admitted position that there were several other partners in the appellant firm in addition to late Nizamuddin. It may be pointed out that the appellant firm has not produced any document to prove that the appellant firm stood dissolved on the death of Mr. Nizamuddin. It may be observed that it is not uncommon that under partnership deed, a clause is inserted providing that on the death of one of the partners, the partnership shall continue and in his place, his legal heirs would be taken in as the partner. I am inclined to hold that it was for the appellant to produce the Partnership Deed or a Certificate from the Registrar of Firms in order to substantiate the allegation that the appellant firm stood dissolved. It may also be pertinent to mention that even the present appeal has been filed by the firm itself. If the above contention of Mr. Khurshid Anwar Shaikh is to be accepted as correct, in that event the above appeal itself is not competent. (d) With reference to the third contention that a rent case is to be filed against the partners of a firm and not against the firm itself as the rules applicable to a civil suit .cannot be pressed into service in a rent proceeding, it will suffice to observe that the rent case is to be filed against a tenant. A tenant may be a living person or may be a juristic person. A registered firm is a juristic person, which can sue and be sued. In my view the above principles applicable to a civil suit can be pressed into service in a rent proceeding if the tenant is a registered firm. It may be pointed out that even an unregistered firm can be sued but cannot sue itself.

3. For the aforesaid reasons the appeal is dismissed, but there will be no order as to costs. However, I grant 2 months further time to the appellant from today to hand over the vacant possession of the tenement to the Respondent. On the expiry of the above 2 months time, the Rent Controller shall issue a 'writ of ejectment without any further notice to the appellant. S. Q. Petition dismissed.