1992 PLP 1021 (MLD)

The respondents in this case filed an ejectment application against the appellant and his co‑tenant Mohammad Rafiq seeking their ejectment from Shops Nos.5 and 6 situated on Marriot Road, Karachi. It was alleged that the said tenant had committed default in payment of rent for the months of July, August and September, 1980. 2.: The proceedings were defended only by appellant Mohammad Saeed as his co‑tenant Mohammad Rafiq had since expired before the fling of the eviction application. However, the application was resisted by the appellant firstly on the preliminary ground that the same was not maintainable as proceedings initiated against the dead person were nullity in the eyes of law and secondly that the representative of the respondents as per previous practice failed to himself come and collect rent for the month of July, 1980 from the appellant. Thereafter, according to the appellant, he sent his employee Mohammad Zaki to the respondents with the rent for the month of July, 1980 but both the respondents as well as their father avoided to receive the rent. Thereafter rent was tendered through money order dated 11‑10‑1980 to the applicant and hence no default in fact has been committed.

3. Admittedly, there was no written agreement of tenancy between the parties and if the grace period of sixty days as provided by section 15 of Rented Premises Ordinance for tender or payment of rent is allowed, then default was committed by the appellant only in respect of the payment of rent for the month of July 1980. A question, therefore, arose whether the Rent Controller would be justified in exercising his discretion against the tenant for such a technical default. It is pertinent to point out that an allegation had also been made by the respondents in respect of subletting of the demised premises by the appellant but the issue was not pressed by the respondents at the time of the final disposal of the case.

4. Suffice it to say that the learned Controller decided both the remaining issues against the appellant and hence this appeal.

5. I have heard Mr. NA. Farooqui, learned Counsel for the appellant and Mr. Shamsul Arfin Qureshi, learned Counsel for the respondents.

6. The first contention of Mr. NA. Farooqui is that the eviction application was not maintainable since one of the co‑tenants namely Mohammad Rafiq had died before the filing of such application and the application could not be filed without inpleading his legal representatives in the case. In this regard, it may be pointed out that, according to the evidence of respondent Khalilur Rehman, the tenancy was in the name of "Mohammad Rafiq Mohammad Saeed" which had been adopted by the appellant and his co tenant as their business name. The rent receipts were also being issued to them in the same name without any objection being raised in this regard. Consequently, the learned Controller arrived at the conclusion that since the said business name had been accepted by the appellant and his co‑tenant without raising of any objection in this regard they could be sued by the respondents in the said name. It is pertinent to point out that Mohammad Rafiq had died to the knowledge of applicant Khalilur Rehman on 21‑12‑1968 and admittedly the name "Mohammad Rafiq Mohammad Saeed" was only a business name adopted by the appellant and his co‑tenant Muhammad Rafiq apparently for the purpose of the tenancy and it was not the case of the respondents that "Muhammad Rafiq Muhammad Saeed" was a partnership firm. It may be pointed out in this regard that a suit, although, can be brought against a firm in the name of the firm even though one of the partners is dead before the institution of the suit but if a sole‑proprietor dies no suit can be brought against him in the name of the firm. A suit brought in the name of a dead proprietor, although doing business in a name other than his own, would be a nullity in the eyes of the law. 1n the present case no doubt, there were two persons who had jointly been inducted as tenants in the demised premises but since admittedly they were not partners of a firm, the same principle as applicable to a single proprietorship firm would apply. Although, Mr. NA. Farooqui, learned counsel for the appellant has not been able to draw support from any precedent on the point but reference may be made to the following cases which fully support his contention if not directly at least obliquely. In Rampratab Brijmohandas v. Gavrishankar Kashiram (AIR 1955 Bom. 109) when a suit was brought against a person in the name in which he was carrying on business but the suit was against the sole‑defendant in the suit who had died before the filing of the suit, it was held that the suit filed against a dead man was a nullity from its very inception. Similar views were expressed in Daulat Ram‑Devi Das v. Ishar Das (AIR 1929 Lah. 149) and it was held that when the only proprietor of a firm dies no suit can be brought against the firm at all but the same should be brought against the legal representatives of the deceased proprietor. In yet another case reported as Hari Bandhu Pal and others v. Hari Mohan and others (AIR 1930 Cal. 327) a suit was initially filed against a sole proprietor of the firm under Order 30, rule 10, C.P.C. but he subsequently died during the pendency of the suit. It was held by the Calcutta High Court that under such circumstances, it is necessary to bring his legal representatives on the record to have a proper decree made in the suit. It was further held that if it is not so done, then the decree is made against a dead man, having a different name, and in that case the decree becomes an absolute nullity. In State of West Bengal v. Manisha Maity and others (AIR 1965 Cal. 459) a question arose as to the validity of an appeal preferred against a dead respondent. It was held that such appeal being still‑born was no appeal in the eyes of law. It was further held that nothing in Order 22 of Civil Procedure Code would revive the appeal when the death of the respondent comes to light. Needless to say that the same principle is applicable to rent proceedings.

7. Mr. Shamsul Arfin has argued that the appellant and his co‑tenant Muhammad Rafiq having taken the premises in the joint name of Muhammad Rafiq Muhammad Saeed the appellant is estopped from raising the said objection now. The contention appears to be devoid of force because reference to the principle of estoppel under the present circumstances would be completely misconceived. The question has to be decided in the light of the factual position obtaining at the relevant time. It is pertinent to point out here that the said defect was in fact pointed out by the appellant by a preliminary objection raised by him in his written statement. The respondents, therefore, in fact should have promptly taken steps to remove the defect. However, their proceeding with the case notwithstanding the said defect, has rendered the proceedings completely invalid since, as pointed out earlier, no proceedings can be validly instituted against a dead respondent. No doubt, the appellant was a joint tenant with the said Muhammad Rafiq and admittedly the tenancy continued in the name of Muhammad Rafiq Muhammad Saeed even after the death of the said Muhammad Rafiq. However, even if the tenancy had continued in the said assumed name the case could not proceed without impleading the legal representatives of the deceased co‑tenant as parties to the proceedings. It is pertinent also to refer to the definition of "tenant" in the Sindh Rented Premises Ordinance as the term includes within its meaning heirs of the tenant who are in possession or occupation of the premises after the death of the tenant. However, whether any of the heirs of the deceased co tenant Muhammad Rafiq were in occupation of the demised premises when the cause of action to file the ejectment application arose to the respondents cannot be spelt out from the evidence in the case recorded by the learned Controller. Be that as it may, but since such a question was neither raised before the learned Controller nor before this Court any further discussion on the point would be futile. The upshot of the discussion, therefore, is that the eviction application in the present form was not maintainable before the learned Controller.

8. Mr. Shamsul Arfin Qureshi has, however, invited my attention to Rashida Khatoon v. Syed Hamid Ali Naqvi (1986 SCMR 256) wherein the Supreme Court declined to permit the petitioner to raise an objection during the execution proceedings on the ground that eviction proceedings had continued against a dead person and as such they were void, as according to the Supreme Court, no party could be allowed to take advantage of its own fraud but the facts of the instant case are clearly distinguishable as the respondents herein were already aware of the death of Muhammad Rafiq before even the institution of the ejectment proceedings by them.

9. I now advert to the next issue involved in the case. The! question is whether the learned Controller has exercised his discretion properly by ordering ejectment of the appellant on account of the said technical default in payment of rent for one month only. Mr. N.A. Farooqui, in this regard, has sought support from the case of Muhammad Younus v. Mst. Hajira Bi (1989 SCMR 1670) wherein the Supreme Court upheld the decision of the High Court condoning default of over a month in the light of the facts and circumstances of the case. Support was also sought by Mr. Farooqui from the case of Syed Shahid Ali v. Tanvir Ahmed Farooqui (1988 MLD 2639). The judgment in this case was incidentally given by me and while relying upon an earlier judgment given by Muhammad Zahoorul Haq, J another learned Judge of this Court, reported in 1981 CLC 793, it was held by me that discretion should not be exercised by the Rent Controller against the appellant for a month's technical default. Mr. Shamsul Arfin Qureshi, learned counsel for the respondent has, however, invited my attention to the case of Shahriyar Ali Patudi v. Messrs Decora Furnishers (PLD 1985 Kar. 47) wherein my learned brother Salim Akhtar (as he then was) while considering the case of a tenant who had committed default of twenty‑three days in payment of rent observed as follows:‑

8. Section 3 confers a discretion on the Controller to refuse ejectment in case where default has been committed. This discretion has to be exercised judicially and not arbitrarily by weighing the evidence of both the parties, and not on whims and caprices. There should be well founded reason for exercising discretion. Mere hardship to tenant cannot be a ground for exercise of discretion. By exercising the discretion an equitable relief is granted to the tenant, therefore, any contumacious conduct or lack of bona fides on the part of the tenant may disentitle him to ask for such discretionary relief. The law permits a tenant to pay rent within fifteen days from the date fixed under an agreement for payment of rent, and in the absence of an agreement, within sixty days from the period for which the rent is payable. This period of fifteen and sixty days is a grace period during which rent must be paid unless the tenant is prevented due to reasons beyond his control or misconduct of the landlord. If the rent has not been paid within the grace period then delay should be explained. It will not be enough to say that there is a delay of few days and, therefore, discretion should be exercised in his favour. The respondent has explained the delay by stating that the appellant used to collect rent in lump sum and that money order was sent to him. The appellant have denied that there was any practice to collect rent in lump sum. Except a receipt for payment of rent for 4 months which has been denied by the appellants, no document has been produced to established this practice. Mere words of the respondent and one receipt cannot prove such practice. A mode of payment can be termed as `practice' if it is uniform, consistent, continuous and accepted by the other side without objection or .change for a long period. Reference can be made to Koonch Amna v. Mst. Zubaida (PLD 1983 Kar.584). In the present case, the respondent has failed to establish any practice. Even otherwise as laid down by the Supreme Court in Abdul Rashid v. Saleh Muhammad (1980 SCMR 506), S. Riaz Ali v. Shabbir Ahmed Khan (1971 SCMR 598), Muhammad Hasan & Co. v. Mahmood Ahmed Khan (1975 SCMR 355), Syed Waris Ali Trimzi v. Mst. Liaquat Begum (1980 SCMR 601) and Mrs. Alima Ahmed v. Amir Ali (PLD 1984 SC 32), a tenant cannot plead practice of payment of rent in lump sum which is contrary to law and ask for exercise of discretion in his favour on that basis. Unless it is established by the tenant that by accepting lump sum payment the landlord has condoned or waived the default, mere practice even if proved, may not wipe off default." Similar views were expressed by the same learned Judge in the case of Syed Khadim Ali Shah Bokhari v. Messrs Pakistan Burmah Shell Ltd. (1986 CLC 1487). It was further observed in this case as follows:‑ "By granting grace period of 15 days or 60 days as the case may be, the legislature has given allowance to bona fide human error, forgetfulness, mistake or inadvertence. No sooner it crosses the specified period it no longer remains bona fide error but turns into negligence. Even the continued bona fide error beyond the specified period can be condoned provided the tenant establishes that it was due to reasons beyond his control and brings his ease within the principle laid down in Shaheryar Ali Patudi's case PLD 1985 Kar.

47. The test is that if the default was avoidable it cannot be condoned but if it was not avoidable and had occurred due to reasons beyond the control of the tenant, then discretion should be exercised in his favour." Reliance has also been placed by Mr. Shamsul Arfin Qureshi upon an unreported judgment of the Supreme Court in Civil Appeal No.17‑K/83 (Amir Ali and others v. M/s. Burmah Oil Mills Ltd.) wherein it was held that in a case where there are no extenuating circumstances justifying the condonation of default, the order of eviction passed against the tenant must be maintained.

10. The consensus of authorities, therefore, is that default made by the tenant even for a short period of one month, whether technical or otherwise, cannot be condoned unless there are extenuating circumstances justifying indulgence by the Rent Controller. It is, therefore, necessary to examine the relevant evidence adduced by the parties on the point. It may be pointed out that it was pleaded by the appellant in the written statement filed on his behalf that there was a practice of the respondents to collect the rent through their representative and rent was regularly paid to the respondents' representative in the said manner without any default: However, in the month of August, 1980 rent for the premises was not collected by the respondents' representative as such the appellant sent his employee, Mr. Muhammad Zaki in the first instance alongwith the rent for the month of July, 198() but the rent was not received on the pretext that neither the representative of the respondents was available nor respondents Khaliqur Rehman and Parvez Ahmed were available. Thereafter, (he appellant himself went to the shop of the respondents and tendered rent to the respondents' father Mr. Zikiur Rahman but he also avoided to receive the rent on the ground that the applicants were not present at that time. He, however, assured the appellant that rent would be collected and there was no need for worry. Since the parties belonged to the same community and relations between them were cordial, the appellant in good faith believed such statement. Again the appellant tendered rent in the month of September, 1980 but again the rent was not received by respondent Khaliqur Rehman. He, however, assured the appellant that rent would be collected and therefore there was no need for worry. Thereafter, the appellant found the shop of the respondents locked for some time and therefore he approached the respondents in the shop of Delhi Glass and Tiles where the respondent Khaliqur Rehman used to sit sometimes. Thereafter, rent was tendered by the appellant through money order and hence according to the appellant there was no default. The same was the appellant's stand in his affidavit in evidence filed before the learned Controller but the factual position was not admitted at all by respondent Khaliqur Rehman according to whom, the appellant had failed to pay or tender rent due for the said month. He also denied that there was any practice between the parties of receiving the rent in a lump sum. It was also denied by him that the appellant had ever visited the respondents' shop or office for payment of rent during the alleged period of default. Apart from the said ocular evidence of the parties, there is no other evidence on the record. The ocular evidence shows that there is word of the appellant against that of the respondent. Needless to say that onus in this regard was clearly on the appellant. Mr. NA. Farooqui has argued that the evidence of the appellant on the point could not be fully rebutted by the respondents because their father Mr. Zikiur Rehman had not been examined as witness by them. Although Mr. Farooqui appears to be sent to a certain extent, however, the evidence given by .the appellant does not inspire much confidence. Admittedly, rent was, for the first time, tendered by money order by the appellant on 11‑10‑1980. No doubt, so far as the months of August and September, 1980 were concerned, the rent was tendered within the grace period of sixty days allowed by the law, however, rent for July, 1980 which was payable on 1‑8‑1980 was tendered after seventy two days when the same became payable on 1‑8‑1980. If the appellant really intended to pay rent within time and, according to him, the respondents were dilly‑dallying and not accepting rent from him on one pretext or the other, the appellant should have been more diligent and should not have waited for seventy‑two days to tender rent to the respondents by money order. It is also pertinent to refer to the cross‑examination of the appellant in this regard as first of all the appellant did not remember if any person from his side had gone to pay rent to the respondents during the months of July, August or September, 1980. He did not even remember if rent had been sent at all to the respondent during the said period. These are material contradictions which nullify the evidence given by the appellant through his affidavit‑in‑evidence. There was, therefore, no reliable evidence before the learned Controller to show that the appellant was himself willing to tender rent to the respondents in time or that it was the respondents themselves who had contributed towards such default. I am, therefore, unable to agree with Mr. N.A. Farooqui that the appellant was not liable to be evicted from the ,demised premises for a technical default of one month.

11. Be that as it may, but in view of my earlier findings, I find that the eviction application was not maintainable and consequently, the appeal is allowed and the impugned order is set aside. The parties are, however, left to bear their own costs. A.A./M‑1488/K Appeal accepted