1. ' This second appeal under section 15 (4) of the West Pakistan Urban Rent Restriction Ordinance, 1959 is directed against the judgment dated 21st October, 1975 passed by the learned IV Additional District Judge, Karachi, whereby he allowed the appeal and set aside the order dated 21st August, 1974 passed by the learned Rent Controller and dismissed the application filed by the appellant landlord for eviction of the respondents-tenants.
2. ' The relevant facts are that one Abbasbhoy Moosaji (predecessor-in-interest of the respondents) was a tenant of one Boman Abadani Irani (predecessor-in-title of the appellants) in respect of premises No, 11 and 11-A situated in Boman Abadani Irani Building, Ranchore Line Quarters, Karachi, since the year 1933, paying monthly rent of Rs,
53. Boman Abadan Irani died sometime in September 1960, where after two of his L. Rs,, namely, Shah Behram and Mst. Motibai, son and widow respectively, sent a notice dated 7th December, 1961 to Abbasbhoy Moosaji demanding rent from him. Abbasbhoy promptly paid the entire rent up to December, 1961 which was accepted but thereafter he stopped paying rent to the L. Rs, Shah Behram and Motibai as, according to him, there arose confusion as to whom to pay the rent due to different members of the family demanding rent from him. Next, Abbasbhoy received a lawyer's notice dated 15th November, 1962 on behalf of the four persons, as the L. Rs of the original landlord, complaining of non-payment of rent by him and terminating his tenancy. On receiving the notice, Abbasbhoy immediately sent rent on 29-11- 1962, for the entire period through money order which was, however, refused by the appellants. He again tendered rent on 24th December, 1962 by cheque which also was refused by the appellants, where after he deposited the rent before the Rent Controller through a miscellaneous application.
3. However, on 1st January, 1963, the appellants filed ejectment application against Abbasbhoy under section 10 (2) of the Karachi Rent Restriction Ordinance for his ejectment on the ground of non- payment of rent and subletting. Abbasbhoy contested the ejectment application and denied both the grounds. During the pendency of the ejectment proceedings, Abbasbhoy died and the respondents were brought on record as his L. Rs, who also filed their written statement denying the subletting of the premises and willful default in payment of rent. Explaining the nonpayment of rent, they pleaded that after the death of the original landlord, Boman Abadan Irani, there arose some confusion as to whom to pay rent and after they received the legal notice through an Advocate of the L. Rs, of the Boman Abadan Irani, the rent was immediately tendered to the appellants through money order and cheque which showed that they had not wilfully withheld the rent. On the basis of the above pleadings of the parties, the learned rent controller framed the following 4 issues :-
(1) Whether there is relationship of landlord and tenant between the parties ?
(2) Has the opponent sublet a portion of the said premises without consent in writing of the applicant ?
(3) Has the opponent defaulted in the payment of rent ?
(4) What should the final order be ?
4. ' The learned rent controller after recording the evidence of both the parties decided all the issues in favour of the appellants landlords and allowed the ejectment application by his order dated 21st August, 1974, and directed ejectment of the respondents. The respondents tenants went in appeal against the order of the learned Rent Controller which was allowed by the learned Additional District Judge by his order dated 21st October, 1975, and the order of the rent controller was set aside. The learned Additional District Judge held that the appellants had failed to prove the ground of subletting of the premises by the respondents, and the default committed by the respondents was not wilful. Hence this second appeal by the appellants landlords.
5. ' Mr. S. M. Gharih Nawaz, learned counsel for the appellants, contended that as the appellants had brought on record deposition of Abbasbhoy in a suit filed by Abbasbhoy against one Hasan Ali Qadri wherein he had admitted in the cross-examination that he had sublet a portion of the premises to Fikree Automobiles, the subletting stood proved and, therefore, the first appellate Court was wrong in holding that the appellants had failed to prove subletting.
6. ' I find no force in the contention. This very contention was raised before the learned Additional District Judge in the appeal and was repelled by him as under: "Notice given by the respondents does not support the case of the respondents regarding subletting. Late Abbasbhoy in Suit No, 517/1962 has stated in his cross-examination that it is incorrect that he sublet the portion of the premises to different persons on different terms and conditions and it is true that he had sublet one portion of the premises to one Fikree Automobile.
7. This is said to be the admission on the point of subletting on which learned Rent Controller had decided this issue in favour of the respondents. It was never the case of the respondents that the deceased tenant has or had sublet a portion to Fikree Automobiles as already said above. Notice issued by the respondent is silent on the point of subletting to anybody. The legal position on subletting in view of section 13 part 2 (ii) (a) of the Rent Ordinance is that it should be proved that the tenant has sublet it and not that he had sublet it once upon a time. As the word (has) been used and thus the transaction which has already past cannot form the basis of the ejectment in terms of the above provisions of law. No other evidence was led by the respondent on this point.
8. Accordingly I hold that the respondents failed to prove this issue which was wrongly decided in their favour by the learned Rent Controller."
9. ' I entirely agree with the finding of the learned Additional District Judge and the reasoning given by him and do not find it necessary to add, excepting that the allegation of subletting has been denied in the written statement, the alleged admission made by Abbas Bhoy was not even put to the defendant/respondent Habib, son of Abbasbhoy, in his deposition to offer explanation as required by section 145 of the Evidence Act, after he had stated in his deposition that he had not sublet the premises to any one and denied Fikree Automobile being his sub-tenant. Furthermore, whether or not a tenant has sublet the premises is essentially question of fact, and the first appellate Court having given a finding that there was no sufficient evidence to prove subletting by the respondents it will neither be appropriate nor open to this Court to interfere in this second appeal, supported as the finding is by the record as well as the reasons advanced by the first appellate Court for arriving at the finding.
10. ' The learned counsel next contended that the default committed by the respondents was wilful in that. After the notice dated 7th October, 1961 was sent by the L. Rs, Shah Behram and Mst. Motibai to Abbasbhoy for the payment of rent; the latter paid the entire outstanding rent and, therefore, it could not be legitimately claimed by the respondents that they did not know whom to pay rent.
11. ' I see no force in this contention as well. This very contention was also raised by the appellants (respondents in the first appeal) before the first appellate Court below but the learned Additional District Judge repelled the contention as under :- "Has the opponent defaulted in the payment of rent". The default from January 1962 to November 1962 is admitted by the applicant but his case is that after death of appellant Boman Abadan Irani the original landlord of the disputed premises they could not ascertain the person to whom they should pay the rent and after receiving the notice of termination of tenancy they remitted the entire rent due through money order and that the default as alleged was not wilful and they could not pay under the circumstances explained above. They have relied on notice dated 5th November, 1965 Exh. 11 of all the four respondents and the legal heirs for the first time and they immediately tendered the entire rent by money order on 29-11-1962 which was refused by them.
12. They again sent a cheque with letter dated 26th December, 1962 but it was also refused, and then tendered rent in Court of the Rent Controller in Misc. Application. The contention of the appellant is supported by the notice dated 7-12-1961 which had been given earlier by only two persons namely Motibai Boman Irani and Shah Behram Irani and not by four persons as shown in the second notice dated 5th December, 1962. This circumstance is sufficient to show the confusion regarding the ownership of the premises. The conduct of the appellant shows that as soon as they were satisfied that who are the real owners they remitted the amount at the earliest. Admittedly Abbasbhoy was very old tenant of the disputed premises and that the original landlord also died during the proceedings. So under the circumstances the alleged default cannot be adjudged to be wilful default. Accordingly in view of the facts and reasons discussed above I am clear in my mind that the learned Rent Controller has wrongly come to the conclusion that the appellants were defaulter."
13. ' Indeed, it is an admitted position that Abbasbhoy Moosaji was a tenant in respect of the premises since the year 1933 and the explanation given by Abbasbhoy that after the death of the original landlord Boman Abdan Irani there was some confusion as to whom to pay rent stood substantiated by the fact that the second notice dated 5-11-62 was sent to him on behalf of four persons as the L. Rs, of the original landlord, as against the first notice given on behalf of two persons only. Further, it is an admitted position that after he received notice dated 5-11-1962 from two L. Rs, he immediately sent rent for the entire period which was accepted by the appellants landlords and, thereafter on receiving the second notice dated 5-11-1962, he immediately sent rent to the appellants through a money order and thereafter by cheque, before filing of the application by the appellants. This conduct on the part of Abbasbhoy indeed showed his keenness to pay the rent and, as such, the learned Additional District Judge was perfectly within his jurisdiction to hold that the default was not wilful, and his finding is not open to interference by this Court in the second appeal. For support, reference may be made to PLD 1968 Kar. 521, wherein the learned Judge, relying on PLD 1965 Kar. 367 and PLD 1966 Kar. 523, held that the question whether default was negligent or otherwise was a question of fact and stood concluded by the order of the first appellate authority and was not open to interference in the second appeal.
14. ' For the aforesaid reasons, I see no merit in this appeal and dismiss it. In the circumstances of the case I make no order as to costs.