P L D 1994 Karachi 106 (PLP)

The appellants in written reply denied to have committed default in payment of rent. It is alleged that the rent for the month of June, 1981 was paid to the predecessor-in-interest of the respondents, who did not issue any receipt for it. It is also the case of the appellants that rent for the months of July and August, 1981 in time was offered to her, but she declined to accept it on the plea that rent receipts were not available and soon she would get them printed again and the rent would be realised thereafter. The appellants were not satisfied with the above explanation and immediately remitted the rent of three months viz. from June to August 1981, through a money order dated 17-9-1981 which was refused by her. It is alleged that, although the rent for the month of June, 1981 was already paid, yet, it was again sent through said money order. On the point of subletting, the appellants have maintained that Shaheen Burqa House is partnership concern, and it is the tenant of the premises. It has been specifically denied that appellant No.l in his individual capacity is the tenant of the premises. The then learned Rent Controller, by order dated 20th September, 1987 dismissed the eviction application on the ground that there was no relationship of landlady and tenant between the predecessor-in-interest of the respondents and appellant No.l and, as such, the Rent Controller had no jurisdiction in the matter. This order was challenged before this Court, being F.RA. No.966/87, and by order dated 24-10-1991 the appeal was allowed and the case was remanded to learned Rent Controller for deciding it on merits again on the following questions/issues:- (1) Whether at the time of creation of tenancy in 1969 Shaheen Burqa House was a proprietorship concern? (2) If answer to the question at serial No.l is in the affirmative whether the conversion of a proprietorship concern into a Partnership firm, where the Proprietor also becomes a Partner, would constitute the creation of a sub-tenancy? If so, is the rule an absolute one or there can be any saving for example in cases where the proprietor has reserved the tenancy rights in himself? (3) Whether a case for default is made out in the event finding be in the affirmative on point No.l above? At trial Rashid Ahmad Barry attorney of Mst. Bilquis Begum, who is also her husband, and appellant Muhammad Subhan filed their respective affidavits in evidence and were cross-examined. On assessment of evidence brought on record learned Rent Controller decided issue No.l in the affirmative. For issue No.2, she gave a finding that appellant No.l had sublet the premises in favour of the partnership firm. For issue No.3, she held that default was committed. Consequently, she allowed the eviction application which order has been challenged in this appeal. Mr. Muhammad Sadiq, learned counsel for the appellants contended that the appellant No.l, in his individual capacity, has never been tenant of respondents and it is appellant No.2 which is and has been tenant of respondents and the eviction application primarily being against the appellant No.l is not maintainable due to deliberate misjoinder of parties. The respondents' case is that the premises was rented out to appellant No.l and he, without written consent of the predecessor-in-interest of the respondents, sublet it to appellant No.2. These being the respective contentions of the parties, the appellant No.l was rightly joined as a party in the proceedings. Besides, misjoinder of parties is not fatal if no miscarriage of justice is occasioned as such. Learned counsel for the appellants next argued that no default was committed by them as the rent for the month of June, 1981 was paid in time, but no receipt for it was issued by the predecessor-in-interest of the respondents. This plea is not substantiated from the evidence available on record. The rule of Roman law ei incumbit probatio qui dicit non qui negat the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it, for a negative, is usually incapable of proof, is a well-recognised principle of evidence on the point of burden of proof. The Hon'ble Supreme Court in the case of Allah Din v. Habib reported in PLD 1982 SC 465 observed that no doubt the initial burden of proof lies upon the landlord to establish that the tenant has not paid or tendered rent but non-payment of rent is a negative fact and if the landlord appears in Court and states on oath that he has not received rent for a certain period, it would be sufficient to discharge the burden that lies upon him and the onus will then shift to the tenant to prove affirmatively that he had paid or tendered the rent for the period in question. In this case, the attorney of the l respondents, has in his affidavit in evidence, categorically stated that the rent for the month of June, 1981 was not paid by the appellants. The appellants have not brought convincing evidence on record to show that the rent for the said month was paid by them. This being the factual position, the principle laid down in the Allah Din's case is applicable 'to this case. The rule in such a situation would be that, although a negative fact is usually regarded as incapable of proof but in rent matters a simple statement on oath by the landlord that he had not received rent would be enough to conclude that the 8 rent was not paid, unless, contrary is established by the tenant. This is for the reason that cardinal rule of evidence is that the best evidence available must always be given and the best evidence in such cases, whether rent is paid to the landlord personally. or sent by postal money order, or deposited in Court, would be the receipts, which alone shall be in possession of the tenant. Accordingly, I hold that the rent for the month of June, 1981 was not paid by the appellants to the respondents. Learned counsel foe the appellants also contended that it being an admitted position that there was no written agreement between the parties, as such, the appellants under clause (1) of subsection (2) of Section 15 of the Ordinance, were entitled to the grace period of 60 days for paying the rent for the month of June, 1981, and on that basis the rent for the month of June could be paid on or before 9th September, 1981. He submitted that the money order was sent on 17-9-1981, therefore, the default, if any, was of only 8 days which should have been condoned by the Rent Controller. In support of this contention, he cited (1) Iqbal Ahmad v. Mehrban Ali PLD 1979 Lahore 127, (2) Syed Jalilur Rehman etc. v. Messrs Johar Trading Co. 1982 CLC 219, (3) Inayat Ullah v. Zahoor-ud-Din and another 1987 SCMR 1313, (4) Muhammad Aslam v. Muhammad Usman Farooqi 1989 MLD 2047, (5) L. Hussain v. Muhammad Nawab and 4 others PLD 1992 Karachi

307. In lqbal Ahmad's case, it was held that where tenancy was not governed by any formal agreement in such case for non-payment of rent in time without any malice the exercise of discretion against the tenant was not justified. In Syed Jalilur Rehman case, it was held that Rent Controller could condone default if it wag not deliberate. In Inayat Ullah's case, it was held that the record showed that landlord deliberately created difficulties in the way of tenants by not accepting the rent in the hope that some omission or slip on the part of the tenants may enable him to carve out a ground for their eviction. Looking to the conduct of the tenants the finding was recorded that they were not wilful defaulters. In Muhammad Aslam's case, it was observed that discretion be exercised in favour of tenant, who was. regular in payment of rent and there was default of only one month. In L. Hussain's case, it was held that evidence on record fully established that there was past practice for collection of rent by landlords themselves, that all possible efforts were made by tenant to tender rent to landlords, personally, through money order and by depositing in Court. In such circumstances, the discretion was exercised in favour of the tenant, who was occupying the premises for about 45 years. Coming back to the facts of the instant case, it is noted that as per statement of rent deposited by the appellants in R.C. No.4143/81 (Page 33 of the Lower Court File) the appellants on 10-12-1981 had only deposited an amount of Rs.165, although the rent due against them was from June, 1981. Even after the institution of the eviction application, it was the duty of the appellants to have paid or tendered rent to the respondents regularly. Therefore, it is not a case of default of the month June only, but, in fact, it is a case of default from June to September, 1981. In any case, even by allowing the grace period of 60 day,- the rent for the month of June was to be paid on or before 30th July and likewise rent for the months of July, August and September should have been paid on or before 30th August, 30th September and 30th October, 1981 respectively. The principles laid down in the cases cited by learned counsel for the appellants are not attracted to the circumstances of this case. The finding of Rent Controller that default was willful is perfectly correct and no exception can be taken to it. The next point to be considered is of subletting. The Attorney of the predecessor-in-interest of the respondents, in his affidavit-in-evidence, stated that the premises was let out to the appellant No.l in the year 1969-70 and at that time said appellant had represented himself as the Sole Proprietor of 'SHAHEEN BURQA HOUSE'. In his cross-examination, also a suggestion was given to him that said concern was tenant from 1969-70. The appellant No.l, in his cross-examination recorded on 15-8-1987, clearly admitted that partnership deed was not registered on 1-4-1969. The photo copy of Partnership Deed ExhA/4 (Page 141 of the Lower Court File) shows M/s. Shaheen Burqa House, showing Appellant No.l, Muhammad Irfan, and Gulfam as partners, was registered on 3-10-1970. It also shows that said Firm was dissolved on 1-7-1985. Muhammad Irfan is the brother of the appellant No.l, while Muhammad Gulfam, who at the relevant time was minor is his nephew. Thus, it is proved that in the year 1969 the respondent No.2 was not a registered partnership Firm. On the contrary, it was a Sole Proprietary concern of appellant No.l. It being so, it would not make any difference if the rent receipts were issued in the name of Shaheen Burqa House. Mr. Khalid Javed learned counsel for the respondents cited (1) Manek J. Mobed and another v. Shah Behram and others PLD 1974 SC 351, (2) S.M. Younas and 2 others v. Messrs Premier Mercantile Service, Karachi and another 1981 CLC 1380, (3) Messrs Premier Mercantile Service and another v. S.M. Younas and 2 others PLD 1982 SC 79, (4) Haji Muhammad Mehar Ellahi v. Messrs Mandviwalla Motor Co. and 2 others 1985 CLC 2125 to contend that assigning leasehold rights from own name to a firm or to a Private Limited Company amounts to subletting. In the case of Manek J. Mobed, on this point the following was observed by the Supreme Court:- "The dictum in Yenidje Tobacco Company is confined to cases of not winding up of private limited companies consisting of family members. It was followed in the case of Ladli Parshad Jaiswal v. Karnal Disullery Company Limited PLD 1965 SC 221 but it has no relevance to the present case. We are not dealing with a winding up application but with a case of subletting without the consent of the landlord. If a person obtains leasehold rights in his own name and subsequently assigns them to a firm or to a private limited company consisting of family members it cannot be said that no change has taken place in the status of the tenant or that it is not a case of subletting or assignment of leasehold rights." In S.M. Younas's case, and M/s. Premier Mercantile Service's case the rule laid down in Manek J. Mobed's case was followed. In Haji Muhammad Mehar Ellahi's case, original tenant was taken over by a limited Company. It was held that it amounted to change in status of tenant and was subletting. It is not the case of appellant No.l that from inception of tenancy till date the possession had remained with him. On the contrary, it is alleged that he is only a partner of said concern. Had he taken a plea that all along the premises was- in his possession, the situation perhaps might have been different. At his own showing, from the date of the registration of the Firm till C its dissolution the premises was in possession of all the Partners of the Firms. This shows that, during the period the premises was in possession of all the Partners the subletting was done. Therefore, the finding of the Rent Controller on this point is also correct. The appellant No.l had sublet the premises to appellant No.2. In consequence, I do not find any merit in this appeal and the same is dismissed with no order as to costs. The appellants are directed to hand over vacant possession of the premises in question to the respondents within 3 months from now. H.B.T./M-1901/K Appeal dismissed.