1. ' SAJJAD ALI SHAH, J.--- Through these petitions, the petitioners-tenants have called in question the judgment of the Rent Controller as well as order of the Appellate Court whereby his eviction was ordered and maintained. Briefly stated the facts, respondent No,1 initiated ejectment proceedings by filing Rent Case No,262 of 2001 against petitioner No,2 and the predecessor-in-interest of petitioners Nos.1 and 3 on the ground of personal bona fide need, default in payment of rent, sublet, nuisance and addition and alterations. The ejectment of the petitioners was allowed on the ground of personal ;bona fide need only whereas the ejectment on the remaining ground was declined.
2. Consequently, petitioners-tenants filed First Rent Appeal bearing No,224 of 2002 challenging their eviction on the ground of personal bona fide need and respondent No,1/landlady filed First Rent Appeal No,205 of 2002 against dismissal of her ejectment application on remaining grounds. The Appellate Court dismissed the appeal of the petitioners and partially allowed the appeal of respondent No,1 by further allowing ejectment on the ground of sublet and default in payment of rent. The petitioners filed Constitutional Petition bearing No,604 of 2004 against the judgment of the First Appellate Court in F.R.A. No,205 of 2002 (allowing ejectment on the ground of default and sublet) and Constitutional Petition bearing No,605 of 2004 against F.R.A. No,224 of 2002 (maintaining ejectment on the ground of personal need) which are being decided through this common judgment.
3. ' Mr. I.H. Zaidi, learned counsel for the petitioner, in order to dislodge the claim of respondent No,1 on account of personal bona fide need, contended that a perusal of para-8 of ejectment application would reveal that the landlady-Respondent No,1 is seeking the possessions of the demised premises on the ground that at the moment she is putting up on the fourth floor of the same building where the demised premises is situated and on account of her old age and abdomen surgery she wants the demised premises which is on the first floor. Per Mr. Zaidi the nature of the premises was never discussed by the courts below while allowing ejectment on the ground of personal bona fide need. Learned counsel, by referring to the preamble of the Tenancy Agreement, Exh.O/1, contended that the premises originally being commercial could not be required for residential purposes.
4. ' On the other hand, learned counsel for respondent No,1 argued that there was no Tenancy Agreement between the parties nor it was filed along with written-statement nor relied upon, and the one relied upon by the petitioner is manipulated. It was contended that Tenancy Agreement was produced by the petitioner along with his affidavit-inevidence and the counsel for respondent No,1 in the cross-examination has clearly suggested that the agreement is fake. Therefore, such plea cannot be considered at this stage on the basis of Tenancy Agreement which was never proved.
5. ' I have anxiously considered the arguments of the respective counsel on this issue and have examined the record.
6. ' A minute perusal of the written-statement reflects that the petitioners never challenged the status of demised property before the trial Court nor in the cross-examination any question to the effect that the premises being commercial cannot be required for residential purposes was suggested.
7. The Tenancy Agreement was never filed along with written-statement and further upon scrutiny of record it transpired that for the first time this Agreement was confronted to respondent No,1landlady during cross-examination who responded in the following manner:--- ' There was no agreement between the parties regarding present tenancy. It is incorrect to suggest that there was, any Tenancy Agreement between the parties and the documents shown to me at the moment Tenancy Agreement is false... ' and thereafter the petitioner produced the same along with the affidavitin-evidence as Exh.0/1 and during the cross-examination regarding this agreement the petitioner replied in the following terms:-- ... I do not remember whether I was present at the time of signing of Tenancy Agreement as it was in 1975. I see Exh.O/1 of Opponent's affidavit-in-evidence and it is correct to suggest that this document does not bear my signature either as party or as a witness. I see the signature upon document Exh.O/1 of witnesses. Signature No,1 is of Muhammad Umer who was cycle dealer who died recently and other signature of witness I do not recognize. It is incorrect to suggest that document Exh.0/1 is a fake document. It is incorrect to suggest that no written Tenancy Agreement was signed between the parties...
8. 'In view of this position where the petitioner has totally failed to prove the Tenancy Agreement by calling the signatory and marginal witnesses in the witness Box nor any plea regarding the nature of the demised premises was taken in the written-statement leading to framing of an issue and consequent adjudication on the basis of pleadings and evidence. Admittedly the other floor of the building' are being used for residential purposes, therefore, I do not see any justification to upset the concurrent findings of the courts below on this issue.
9. ' On the question of default, Mr. Zaidi has contended that the rent for July, August and September, 1993, was paid to the son of respondent No,1-landlady against receipt whereas rent for the month of October, November and December upon refusal to accept was remitted through money order and thereafter deposited in Miscellaneous Rent Case and therefore the question of committing default in payment of rent does not arise.
10. ' On the other hand, Mr. F.M. Jawed, learned counsel for respondent No,1, contended that in fact rent upto July, 1993 was received by respondent No,1 against a receipt and thereafter the petitioners had failed to tender rent. Learned counsel further invited my attention to Exh.0/2 which is money order receipt of Rs,1,500 and referred to the cross-examination of the petitioner which reads as follows:-- ...I produce photo copy of money order receipt of Rs,1500 which was returned for the rent for three months for August; September and October, 1993....
11. ' And contended that the petitioner had sent rent for August, September and October, 1993 in the sum of Rs,1,500 instead of Rs,2,400 at the rate of Rs,800 per month and per learned counsel such short tender also amounts to default. Reliance was placed on the judgments of this Court in the cases of Debarred and others v. Intizamuddin 1986 M LD 985 and Messrs Ali Brothers and others v.
12. Mst. Naushaba Jabeen and others 2001 M LD 648.
13. ' Mr. Zaidi, in response, after accepting that rent upto July, 1993 was paid against receipt and not as contended by him, argued that the rent at that juncture was Rs,300 per month and not Rs,800 per month as the increase in rent was much after remitting the rent through money order. The attention of Mr. Zaidi was invited to para-6 of the written-statement where the petitioner has admitted the rate of rent as Rs,800 per month. However, per Mr. Zaidi this admission is made in the written-statement which was filed on 17th March, 2001 whereas the remittance of rent through money order Exh.O/2 was in the year 1993. To resolve this anomaly, the record was scrutinized and it transpired that the petitioners after remitting the rent through money order and its refusal on the ground that it did not contain full rent were depositing rent in Miscellaneous Rent Case since 1993 at the rate of Rs,800 per month. Mr. Zaidi, when confronted with this position, had no answer and contended that since in the Tenancy Agreement rate of rent was ,Rs,300 per month, therefore he was under the impression that it was still the same. However, the explanation appears to be just an eye-wash. Since there is no explanation of short tender of monthly rent nor the petitioner has placed on record explanation as to when the rent was deposited in Court, I do not see any reason to upset the findings of the Appellate Court on the point of default, as well Coming to the third ground, i,e, sublet, Mr. Zaidi has not denied that the tenancy was in the name of Khalil Ahmed, Iftikhar and Khursheed Ahmed Allahwala and the rent receipts were issued in their names accordingly but has contended that the opponents Nos.4, 5 and 6, i,e, Messrs Khursheed and Co., Messrs Specialty Sales and Messrs Specialty Printers (Pvt.) Limited are- the companies of the tenants, and carrying on business since inception, therefore there is no question of sublet and if the Court comes to the conclusion that it was subletting then respondent No,1 by not taking action for such a long time has'waived her right by acquiescence.
14. ' On the other hand, learned counsel for respondent No,1 has contended that the tenancy in the name of three brothers is evident from the rent receipts and is also admitted by the petitioners in the cross-examination and it is also an admitted position that beside the petitioners, three companies i,e, Messrs Khursheed and Co., Messrs Specialty Sales and Messrs Specialty Printers (Pvt.) Limited are carrying business therein which is nothing but subletting as held by the apex Court in the case of Muhammad Subhan v. Mst. Builquees Begum 1994 SCM R 1507(2), Manik G.
15. Mobed and another v. Shah Bharam PLD 1974 SC 351 and Messrs Premier Mercantile Services and another v. S.M. Younus and others PLD 1982 SC 79.
16. ' The scrutiny of record reveals that respondent No,1 in para-7 has alleged that petitioners Nos.1 to 3 have sublet and handed over the possession of the cases premises to opponents Nos.4, 5 and 6 who are juristic persons and separate legal entities. In response, the petitioners in para-12 stated that the petitioners are carrying their business in the name of their companies and the petitioners, their wives and children are the shareholders of those companies. It is by now settled principle of law as was laid down in the case of Manek G. Mobed and another that:- ....If a person obtains lease-hold 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 lease hold rights...
17. ' In the instant case beside firms, a limited liability company is admittedly carrying business in the demised premises which being a distinct legal entity and notwithstanding who are its Directors has its own independent rights and liabilities with respect to third parties including the respondent- landlady and petitioners/tenants, therefore I see no reason to upset the findings of the Appellate Court that the petitioners have handed over the demised premises to a separate legal entity without the permission of respondent No, 1/landlady. As to the plea of waiver by acquiescence, Mr. Zaidi, has failed to point out from the written-statement that such plea was ever raised before the courts below or that since when the petitioners are carrying business in the name of Messrs.
18. Khursheed & Co., Messrs Specialty Sales and Messrs Specialty Printers (Pvt.) Limited so that a plea of waiver by acquiescence may be considered. I have minutely perused the written-statement and affidavitin-evidence filed on behalf of the petitioners and as unable to find out any thing in support of such plea or any material from which such plea could be evolved. It is further important to observe that such plea could only be raised by Messrs Khursheed and Co., Messrs Specialty Sales or Messrs Specialty Printers (Pvt.) Limited i,e, opponents Nos.4, 5 and 6 but such companies have accepted the verdict of the Appellate Court by not joining the present petitioners, as the instant petition is filed by the original tenant or their legal heirs and not by the afore-said companies, consequently no case of interference is made out.
19. ' These are the reasons for the short order whereby these petitions were dismissed in the earlier part of the day.