1992 PLP 1247 (MLD)

This First Rent appeal is directed against the judgment of UIIIth Rent Controller, Karachi, South, dated 16‑4‑1989, whereby he directed the appellant to hand over the vacant possession of the disputed shop to respondent within four months. Brief facts of the case are that the respondent is the landlord of shop premises bearing No.OT/9/169, G‑2‑A, Kagzi Bazar, Old Town, Karachi, and one Muhammad Umer was his tenant in respect of the same at a monthly rent of Rs.125 and carried on business therein under the name of Honest Silk House. The said Muhammad Umer paid the monthly rent of the disputed shop to the respondent upto June, 1977, but thereafter in the months of July and August, 1977, when respondent went to the disputed shop for collection of the monthly rent, he found the same closed. Later on the respondent learnt that the said Muhammad Umer has expired and that the deceased Mst. Khadija and the present appellant are his L.Rs. The respondent demanded the monthly rent of the disputed shop from them but they failed to tender the same. It has been alleged that the appellant and his deceased mother have wilfully defaulted in payment of the same since July, 1977 and have also sublet the disputed premises to another person, who is carrying on his business in the disputed premises, and they are, thus, liable to eviction from tenancy premises. The appellant and his deceased mother in their joint written statement admitted the respondent as the landlord of the disputed shop as well as their being legal heirs of deceased Muhammad Umar but denied the other averments made by him in his eviction application and stated that M/s. Honesty Silk House, which is a registered firm is the tenant of‑the respondent in respect of the disputed shop and that neither deceased Muhammad Umar; their predecessor, was the tenant of the disputed premises in his personal capacity nor there is any relationship of landlord and tenant between the respondent and them. They further stated that the rent was paid to the respondent by the said firm upto June 1977, and not by deceased Muhammad Umar, who expired on 16‑10‑1977 in his personal capacity, but that thereafter none came to collect the same till October 1977, despite continuous opening of the disputed premises, whereupon the rent from July to December 1977 was remitted to respondent by way of Pay Order No. OAK‑635722 dated 8‑11‑1977 under registered A/D cover which he accepted. They further stated that thereafter the rent for January to March 1978 and again the rent for January to April 1978 was remitted to respondent by way of M.Os. dated 16‑2‑1978 and 4‑3‑1978 respectively which were refused and as it was also learnt that the respondent had also not under a planned scheme, got the Pay Order dated 8‑11‑1977 encashed. A sum of Rs.1,500 towards the rent from July 1977 to June 1978 was deposited on behalf of the said firm in the Court on 15‑3‑1978 in Misc. Rent Case No.1190/78 besides another sum of Rs.750 deposited in Court towards rent from July, 1977 to December 1977. They further stated that there in no subletting of the disputed premises and that the same is in occupation of the partners of the said firm and they are carrying on the business therein and that as the rate of rent and good will has shot up in the locality, the respondent actually wants enhancement of rent of Rs.250 per month or to get the same vacated so that the same may be let out to some other person and get heavy amount of Pagri. On these issues the parties led their evidence, and learned Controller held that there is no relationship of landlord and tenant between the parties in personal capacity of appellants and that M/s. Honesty Silk House is the tenant of disputed premises and dismissed eviction application. The respondent challenged the said order before this Court and the Court set aside the said order and remanded the matter back for deciding the same afresh after hearing the parties, who were also allowed to adduce additional evidence if so desired. The issues which are for determination were:‑ (1) Whether there is relationship of landlord and tenant between the respondent and the appellant? (2) Whether the respondent has committed default in payment of monthly rent of disputed premises? (3) Whether the disputed premises has been sublet by the respondent? (4) What should the order be? The learned Controller found the first two issues in favour of respondent, and consequently ordered the ejectment of appellant. I have heard Mr. Ismail Merchant, learned Advocate for the appellants and Mr. M.M. Mehmoodi learned Advocate for the respondent. On the first issue the respondent has brought on record the evidence of his rent collector, P.W. Muhammad Saeed and himself. The respondent has produced photostat copies of two rent receipts, and of the application under section 13(2), C.P.C. filed by Mst. Khadija, widow of deceased Muhammad Umar and mother of present appellant and also three original letters written by her to him.(Exh.5/A to Exh.5/F) and has stated that he had rented out the! disputed premises to deceased Muhammad Umar and that he was his tenant in respect of the same and had been carrying on his business of cloth therein, under the name and style of Honest Silk House and that after the death of the said deceased the present appellant being his legal heir is his tenant in respect of the disputed premises, and P.W. Muhammad Saeed has also supported him and stated that deceased Muhammad Umar was the tenant of the respondent. On the other hand the appellant's attorney HA. Karim has produced photostat copy of registration certificate of Honesty Silk House and four receipts of rent and has stated that Muhammad Umar was not tenant of the respondent in respect of the disputed premises in his personal capacity and that actually the tenancy was in the name of Honesty Silk House and the said deceased was only a partner of the said firm viz. Honesty Silk House and that as such there is no relationship of landlord and tenant between the respondent and the appellants in his personal capacity.. As there is no written tenancy agreement produced by either side, therefore, the only documents on record which throw some light on this issue are the aforementioned documents produced by the parties. It is correct that perusal of the certificate of registration produced by DWHA Karim shows that M/s. Honesty Silk House is a registered firm having two partners namely Mst, Girl Bano and deceased Umar. But the said partnership is in respect of the business and there is nothing in the said certificate or otherwise produced by appellant side to show that the said firm is a tenant of the disputed premises and that the said persons are also partners in the tenancy of the disputed premises. In the receipts of rent produced by both the parties the name of tenant appearing in the column of "TENANTS' name and parentage" since 1970, is "Honest Silk House, owner Umar Abdul Rahman, which does not seem to have been objected either by the said deceased Muhammad Umar during his lifetime or any other person and in his cross‑examination recorded on 27‑10‑1980 D.W.HA. Karim has also admitted that (the said deceased) who has been named as Haji Umar, was carrying on his business under the name of Honesty Silk House. This negates the defence plea that not the said deceased but firm Honesty Silk House was the tenant of the disputed premises. Appellant admitted that her deceased husband was the tenant of the disputed premises Therefore, now the appellant being the only surviving heir of the said A deceased Muhammad Umar and in occupation of the shop is the tenant of the disputed premises and the relationship of landlord and tenant is there between him and the respondent. Therefore, I do not find any justification to interfere with the finding on the first issue. On the second issue, the respondent has stated that he received the monthly rent of the disputed premises from deceased Muhammad Umar upto June, 1977 but that when in July and August 1977, he went to disputed premises for collecting the rent, he found the same closed and subsequently came to know that the said deceased had expired and that appellants Nos.1 (since deceased) and 2 (now the only appellant) are his legal heirs. He has further stated that the appellants have not paid the rent of disputed premises since 1‑7‑1977 onward in spite of demands. As against this there is evidence of D.W.H.A. Karim. He has stated that rent upto June 1977 has been paid to respondent by Honesty Silk House, a registered firm and not by deceased Muhammad Umar but that thereafter since none came for collecting the same it was remitted to respondent through Pay Order No. OAK 635722 dated A‑11‑1977 to December, 1977 which the respondent as learnt subsequently deliberately did not get encashed. He has further stated that rent from January to March 1978, was remitted to him by M.O. No.8088, dated 16‑2‑1978 which was refused by the respondent, whereafter again the rent for January to April, 1978 was remitted by M.O.No.475 dated 4‑3‑1978, which the respondent again refused to accept, whereupon Mst. Khadija Bai widow of deceased Umar deposited the same in Court on 15‑3‑1978 vide Misc. Rent Case No. 1190/78. Since the maximum time which the appellant had for tender of rent of the month of July, 1977 was sixty, days from the day when the same became due i.e. upto 1‑9‑1977 and similarly the time for tender of rent for the month of August, 1977 was upto 30‑10‑1977 and so on, and the Pay Order sent to respondent appears to have been got issued on 8‑11‑1977, therefore the default e in payment of the monthly rent from July onward till sometime after 8‑11‑1977 stands established. Hence even if the period of sixty days from the date when the rent became due for the month of July is excluded there is clear default of about more than eleven days. Mr. Ismail Merchant conceded that there was such default but he prayed that the same may be condoned in the circumstances of the case. He relied upon 1982 CLC 219 Jalilur Rahman v. Joher Trading Co. where the learned Single Judge of this Court held that when the landlords themselves were 'avoiding to receive the rent the default could be condoned. Reliance was also placed m 1988 CLC 2322 BC Agha & Co. v. Fakhruddin where another learned Single Judge of this Court held that though no hard and fast rule for exercise of discretion by Court could be laid down, that being entirely dependent upon facts and circumstances of the case but when the landlord by fraudulent means had created default such discretion could be exercised in favour of tenant. On perusal of Written Statement of appellant and trend of the cross‑examination it would appear that his anxiety was to force the respondent to accept the partnership firm Honesty Silk House as tenant and not to tender the rent in capacity of the heirs of deceased Muhammad Umar. As such the respondent was justified in refusing! the pay orders as well as the money orders sent thereafter. The appellants therefore are not entitled to the exercise of discretion in their favour. They should thank themselves for their unreasonable insistence to accept the partnership firm as tenant instead of themselves as heirs of the deceased tenant. Legally speaking on the death of a partner the partnership firm l comes to an end. No agreement or other evidence has been produced to show that the remaining partners agreed to continue the said partnership firm nor any amended registration certificate has, been produced. Hence it cannot be believed that after the death of Muhammad Umar the remaining partners and the heirs of deceased partner agreed to carry on the partnership. Hence the appeal is without any substance and there is no justification to interfere with the order of the learned Controller. The appeal, is therefore, dismissed. However, period of six months is granted to appellant to vacate the said shop on condition to continue to deposit future monthly rent before 10th of every succeeding month. AA./A‑1167/K Appeal dismissed.