1991 PLP 793 (MLD)

2. Opponents Nos.2, 3 and 4 did not contest the rent application but instead Mst. Aroos Saiyeda Raza put in her written statement on behalf of the opponent No.1 (M/s. Coffee House). Through her written statement she claimed to have joined the partnership firm of M/s. Coffee Shop after the premises in question were let out to them. Later on, according to her written statement, the original three partners retired from partnership, with the result that she became the sole proprietress of Messrs Coffee Shop. The averments made in the rent case were generally denied.

3. The Rent Controller, on the basis of the pleadings of the aforementioned parties, formulated the following issues for the determination of the case:-- "(1) Whether opponents are defaulters in payment of rent from April, 1980, todate? (2) Whether premises in question has been sublet by the opponents 2 to 4 in favour of Mrs. Aroos Saiyeda Raza proprietress of Opponent No.1? (3) What should the order be?"

4. The applicants, in the case, examined Abdul Aziz, the general attorney of the National Bank of Pakistan, while the opponents Nos.2 to 4 (the original partners of the firm) were absent and became ex parte. Mrs. Aroos Saiyeda Raza examined herself and produced a number of documents in support of her case. The Rent Controller, on the basis of evidence. and after hearing the applicants and Mrs. Aroos Saiyeda Raza representing Messrs Coffee Shop, the opponent No. 1 decided the first two issues in affirmative and allowed the application. It is against this judgment that the present appeal has been filed.

5. Mr. Muhammad Akmal Wasim, Advocate appearing for the appellants (Messrs Coffee Shop through its sole proprietress, Mrs. Aroos Saiyeda Raza) mainly contended that the learned Rent Controller had wrongly reached the conclusion that Mst. Aroos Saiyeda Raza could not be accepted as the tenant of the premises in dispute as she was inducted in the partnership without the consent of the applicants and as no agreement of tenancy was ever executed in her favour. He further contended that Mst. Aroos Saiyeda Raza became the sole proprietress of Messrs Coffee Shop w.e.f. 16-6-1979 when the other three partners executed a deed of retirement leaving her to be the sole proprietress (Exh.0-8). Since that date, according to him, she has not committed any default in payment of rent, although she continued to pay the rent in lump-sum at intervals which was accepted by the landlords without any protest. He referred to the rent receipts and correspondence on the subject between the parties to substantiate his such stand.

6. Mr. SA. Waheed Aseem, Advocate appearing for respondents, referred to clause 10(e) of the agreement of tenancy whereby the tenants could not assign or part with the possession of the premises or any part thereof without the written consent of the landlord. According to him, the possession of premises in question has been transferred to Mrs. Aroos Saiyeda Raza, a fact not denied by her. He supported the judgment of the Rent Controller passed in the case on both the grounds.

7. The agreement of tenancy executed on 1-3-1977 is on record. According to the facts stated in the recital part of the agreement it is expressly mentioned that Messrs Coffee Shop, Karachi, shall be called, "The Tenant" which expression shall wherever the context so admits include the person deriving a title under it." It will be thus seen that the tenancy of the premises in dispute was created in favour of Messrs Coffee Shop, Karachi, which was to be treated as the tenant and it was further clarified that any person deriving any title over it shall also be taken to be the tenant. In this context it will be appropriate to make a reference to the provision of law made in section 5 of the Sindh Rented Premises Ordinance, 1979. Section 5 of the said Ordinance is reproduced as under:-- "

5. Agreement between landlord and tenant

(1) The agreement by which a landlord lets out any premises to a tenant shall be in writing and if such agreement is not compulsorily registrable under any law for the time being in force, it shall be attested by, signed by, and sealed with the seal of, the Controller within whose jurisdiction the premises is situated or, any Civil Judge or First Class Magistrate. (2) Where any agreement by which a landlord lets out any premises to a tenant is compulsorily registrable under any law for the time being in force, a certified copy of the registered deed and where the agreement is not so registrable, the original deed duly attested under subsection (1), shall be produced and accepted in proof of the relationship of the landlord and tenant: Provided that nothing in this section shall affect any agreement between the landlord and tenant immediately before coming into force of this Ordinance." This provision of law has been especially introduced in the Sindh Rented Premises Ordinance, 1979, prescribing the mode of executing agreements of tenancy and proof thereof. In case the agreement is a registered one production of a certified copy of it shall be taken to be sufficient proof of existence of relationship of landlord and tenant. In other cases, where the agreement of tenancy does not require compulsory registration but is executed in conformity with the provision of subsection (1) of section 5 of the said Ordinance original deed when produced will be accepted as the proof of existence of relationship of landlord and tenant. Proviso to that section saves the agreements between the landlord and tenant executed prior to the coming into force of the said Ordinance. Such agreements can always be produced to prove the existence of relationship of landlord and tenant and to ascertain the terms of tenancy in the case although it may not have been executed as provided by section 5(1) of the Ordinance. The agreement of tenancy brought on record of the case clearly shows that the agreement was executed before coming into force of the Ordinance. Agreements executed prior to the enforcement of the said Ordinance will be considered as proof of existence of the relationship of landlord and tenant and the stipulations made therein, if the same are not contrary to the provisions of the Ordinance, will always be enforced. In the present case, in view of above, the tenancy was granted and conferred on the firm "M/s. Coffee Shop", and not in favour of the partners of firm at the relevant time. It, therefore, clearly follows that M/s. Coffee Shop itself is to be treated as the tenant of the premises in dispute. It is nobody's case that the trade name of "M/s. Coffee Shop" has been changed and tenancy transferred in favour of some other firm or person. Under such circumstances, irrespective of the fact that Mst. Aroos Saiyeda Raza has, by now, become the sole proprietress of the firm, the tenancy shall continue to be in favour of the firm itself. Since there is no evidence on record that the firm has been disbanded or dissolved and premises sublet to another firm or a person, the finding recorded by the Rent Controller that the premises have been sublet cannot be allowed to stand. Arguments advanced by Mr. SA. Waheed Aseem, Advocate for the respondents, on this point have no force. On the point of default in payment of rent the Rent Controller although allowed Mrs. Aroos Saiyeda Raza to contest the case without any objection from the other side, he ultimately held her not to be the tenant and therefore not liable for the default committed in payment of rent. According to him, the respondents Nos.2 to 4 were tenants and they had committed default in payment of rent. Mrs: Aroos Saiyeda Raza, as the sole proprietress of M/s. Coffee Shop, the tenant of the premises in question, will always be liable for the payment of rent to the landlords. She can only be ordered to be ejected on the ground of non-payment of rent if she is found to have committed default in payment of rent. The Rent Controller did not find her to be the defaulter and therefore her ejectment from the premises could not have been ordered. The order impugned in this appeal is also bad on that count. For the foregoing reasons, I set aside the order of the Rent Controller and allow the appeal. The case will be remitted to the Rent Controller to decide if M/s. Coffee Shop, through its sole proprietress Mrs. Aroos Saiyeda Raza, have committed any default in payment of rent in respect of the premises in question either on the basis of evidence already on record or after recording additional evidence that the parties may be permitted to produce in accordance with law. H.B.T./C-183/K Appeal allowed.