1. GHULAM RASUL K. SHAIKH, J.--This is 2nd Appeal against the judgment of the Additional District Judge, Karachi confirming the order passed by the Rent Controller in an appeal filed against his order.
2. The respondent is transferee of the premises bearing No, G/1, on plot No, N. P. 3/117, Napier Quarters, Karachi from the Settlement Department and P. T. 0. dated 20th April 1961 was issued in her favour.
3. According to the respondent the premises was in occupation of Mohd. Shafi and therefore treating him his statutory tenant a notice dated 20th September 1961 as contemplated by section 30 of the Displaced Persons (Compensation and Rehabilitation) Act was served upon him intimating the transfer of the premises and claiming rent at the rate of Rs, 65 per month. However, no rent was paid and, therefore, the respondent took distress warrant proceedings, objections were filed. One of the objections was that the firm known as "Friends Cloth Store" was the recorded tenant of the premises and, there-fore, the application for distress warrant should have been made against the firm. It was further pleaded that the rent of the premises according to the K. M. C. assessment was Rs, 32 per month and the rent was already being paid to the Custodian/ Rehabilitation Commissioner at the rate of Rs, 34 per month. Willingness to pay the rent at the rate of Rs, 34 was pleaded, but the respondent refused to accept the rent. However the objections were dismissed and Rs, 256 were deposited on 16-12-61. Again there was a default twice and distress warrant proceedings were taken. In these proceedings also an'objection was taken that the firm was a tenant. Consequently Rs, 198 were deposited on 8-1-62, and Rs, 262 were deposited on 17-4-1962.
4. Thus this worked out to Rs, 714.
5. No further rent was paid and, therefore, an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance was filed against Mohd. Shafi on 5-12-1963, on the basis of default in payment of rent from 20th April 1961 to 4th December 1963 claiming rent at the rate of Rs, 65 per month. However, on 3-1-1964 an amount of Rs, 268.50 was deposited in the office of the Rent Controller. Md. Shafi was served on 24-1-1964. Prior to the filing of the application, there was also some correspondence between the parties.
6. Mohd. Shafi field a written statement resisting the application, and pleaded that he was not the tenant of the respondent, but M/s. Friends Cloth Store were the tenant and he was a partner of that concern. In the correspondence which was exchanged between the parties this fact was also intimated to the respondent. The same objection was taken in distress warrant proceedings but the Small Causes Court did not determine these objections. The clouds having been cast on the tenancy right of the said M/s. Friends Cloth Stores, they filed a suit for declaration and injunction etc. being Suit No, 348/62 in the Court of Civil Judge, First Class, Karachi which was dismissed, against which an appeal, No, 7/64 was filed and it was pending in the District Court. It may be pointed out that this appeal was allowed and the case was remanded for re-trial but before any progress could be made the suit was withdrawn on 20-7-1965 with a permission to file a fresh suit but no fresh suit was at all filed.. It was pleaded by Mohd. Shafi that he was never the tenant in his personal capacity and the rent of the premises was reduced by K. M. C. from Rs, 65 to Rs, 32 which was also the assessm ent made by the Excise and Taxation Department. Since the rent was reduced retrospectively the firm was ready and willing to pay the rent. The respondent illegally and with ulterior motive refused to receive the rent. The rent which was deposited under the distress warrant proceedings was adjustable towards the future rent.
7. Subsequently an application dated 11-4-1964 was made by the firm M/s. Friends Cloth Stores under Order I, rule 10 read with section 151, C. P. C. for being impleaded as party. This application was allowed and the firm was impleaded as opponent No, 2, which subsequently filed a written statement claiming to be the tenant since 15th of August 1947. The refusal to pay the rent was also denied.
8. Following issues were framed :- (1)Has the opponent not committed a default in the payment of rent?
9. (2)What is the rate of rent?
10. (3)Is the opponent No, 2 a tenant of the applicant?
11. (4)Relief.
12. It appears that an objection was taken that the application was not maintainable as no notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act was served. A request was made that this may be decided as preliminary issue. The order sheet dated 16-6-1966 reads as under : "Applicant's son present. Opponents by Mr. Rashiduddin. He raises preliminary objections that no notice as required under section 30 of the D. P. Act was given. Fix it for hearing of the objection on 9-7-1966. The parties may lead evidence if they so choose,"
13. The order sheet dated 9-7-66 shows the order as under :- "Parties counsel are present. Mr. Rashiduddin Advocate for the opponents Nos, 1 and 2 drops his objections at this stage and contends that the said point will be argued at the close of the case.
14. Put off to 13-8-1966 for settlement of account."
15. Thereafter the evidence was recorded on behalf of the respondent. Her son S. Mohammad Aala was examined while on the other side Abdul Kadir who claimed himself to be one of the partners of the firm i,e, the appellant and two more witnesses, Abdul Said, Incharge of the Records of the Settlement Department, and Saifuddin a cloth merchant were examined. A large number of documents were also produced by the parties in support of their contentions.
16. On the assessm ent of the evidence and the documents the learned Rent Controller observed that through the aforesaid documents, it appeared that the business in the disputed shop was run by the name of 'Friends Cloth Stores' which was managed by different persons at different times and held that the firm represented by Abdul Kadir and Mohd. Shall as partners was not the tenant in the disputed premises and therefore they were not entitled to have any notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act. This finding was also confirmed by the learned Additional District Judge on an appeal filed by the firm M/s. Friends Cloth Stores of which Abdul Kadir and Md. Shall were said to be the partners.
17. Thus there is concurrent finding of fact by the Rent Con-troller and the first appellate Court. The rule is that the concurrent finding of fact cannot be disturbed in 2nd Appeal. At the outset the attention of the learned counsel for the appellant was drawn to this rule, but he pointed out that the concurrent finding was based on misinterpretation of documents, misreading of evidence, misstatement of facts and the documents were either ignored or rejected on flimsy grounds. I find considerable force in this contention. In this situation the force of concurrent finding is lost and not binding, which is evident, from the appraisal of evidence and the material on record. It was conceded by the learned counsel for the respondent that some of the documents were not considered by the lower Courts on the plea that some of them were irrelevant. To say merely that the documents are not relevant is not enough. It must be shown how a document is irrelevant. In other words adequate reasons must be stated, while rejecting the document and excluding them from consideration. In the absence of reasons, the view taken by the trial Court and confirmed by the first appellate Court cannot be reconciled with the rule of non-interference by the High Court.
18. Entering upon the analysis of the evidence, there are several documents supporting the claim of the appellant that the tenancy right created by operation of law namely section 30 of the Displaced Persons (Compensation and Rehabilitation) Act vested in the firm known as M/s. Friends Cloth Stores' of which Mohd. Shafi and Abdul Kadir were the partners in occupation of the shop since long before 20th December 1958 and continued to remain as such till the filing of the eviction application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, founded on the ground of default in payment of rent to the respondent who was transferee of the premises by virtue of the P. T. 0. dated 20th April 1961, issued by the Settlement Authorities.
19. In order to establish that the M/s. Friends Cloth Stores was the statutory tenant having Mohd. Shafi and Abdul Kadir as partners, firstly, there is an evidence of Abdul Kadir supported by Saifuddin who was the President of Kundan Bazar Cloth Merchant Association. The lower Courts gave no reason why they disbelieved the evidence of Saifuddin. The appellants produced the receipts Exhs. 0/2 to 9 for the payment of rent made to the Custodian Department. In all these receipts it has been shown that the rent was received from the Friends Cloth Stores. In Exh. 0/5 the name of Mohd. Shafi, in Exh.
20. 0/7 the names of Masihul Zaman and Zakaria and in Exh. 0/8 the names of Mohd. Shafi and Abdul Kadir had been mentioned besides Friends Cloth Stores. The genuineness of these receipts has not been disputed. The receipts are from the years 1953 to 1956. Thus these receipts establish that the Friends Cloth Stores was the firm in occupation of the premises during that period. The fact that in one of the receipts the names of Mohd. Shafi and Abdul Kadir have been shown, also establishes that they were the partners of the firm. In this connection the learned Rent Controller observed that different names appeared in the various receipts representing the firm and, therefore, the disputed shop was run by the name of 'Friends Cloth Stores' which was managed by different persons at different times, and since Exh. 0/7 dated 16-2-1956 shows the names of Masihul Zaman and Zakaria, it appeared that the firm was run by these two persons as proprietor up to 19-2-1956. On the other band the learned Additional District Judge observed that since the name of Abdul Kadir was only in one receipt i,e,, Exh. 0/8 and there was no written receipt in his favour showing him as a partner, the rent receipts issued by the Custodian in no way supported the contention of Abdul Kadir that he was in occupation of the disputed premises. It is rather sad that both the Courts did not apply their mind to the dates of two receipts that is Exh. 0/7 and Exh. 0/8. The first receipt in which the names of Masihul Zaman and Zakaria were shown is dated 16-2-1956, having paid the rent from 1-1-1956 to 30-6-1956, while the other receipt Exh. 0/8 is dated 29th June 1956 having paid the rent from 1-4-1956 to 30th May 1958. The dates and the period for which the rent was paid clearly show that Masihul Zaman and Zakaria were no longer partners of the firm and thereafter Mohd. Shaft and Abdul Kadir were running the business in the disputed shop. The observation of the learned Additional District Judge that there was no other receipt showing the name of Abdul Kadir stands dispelled by the receipt No, 382 dated 7-11-1959, in which it was shown that the amount was received from Friends Cloth Stores, Mohd. Shafi and Abdul Kadeer Khan on account of rent from 1-6-1958 to 30-9-1959 for the disputed premises. No attention was paid to this document, although this receipt was produced as 'Annexure F' during first appeal.
21. Then there are income-tax assessme nt orders Exh. 0/11 to Exh. 0/24 for the period 1950-51 to 31st March 1966. In all these assessm ent orders the name of the assessee has been shown as the 'Friends Cloth Stores' Kundan Bazar, Karachi, and the names of the partners as Mohd. Shafi and Abdul Kadir have been shown having equal shares in the partnership. In the face of these documents it is not understood how the two Courts below came to the conclusion that Abdul Kadir was not a partner of the firm. These documents were rejected on flimsy grounds. It was observed by the lower Courts that the partnership deed was not produced. In the first place the production of the partnership deed was unnecessary as both were registered partners of the firm with the Income-tax Authorities and the assessment orders provided the proof for the contention made by the appellants. Moreover the deficiency if any, has been supplied in this Court and the partnership deed has been produced as per order dated 3-2-1970 passed by my learned brother Noorul Arfin, J. It is a certified copy of the partnership deed produced before the Income-tax Department and was obtained from that Department. This has been marked by me as Exh. F. The certificate dated 21st August 1970, issued by the Income-tax Officer and is marked as Exh. E by me has also been produced and in this it has been shown that Mohd. Shafi and Abdul Kadir are the partners of the firm of M/s. Friends Cloth Stores, having equal shares.
22. Then there is an evacuee property Rent Receipt Book Exh. 0/10 produced before the learned Rent Controller. In this not only the names of Mohd. Shaft and Abdul Kadir are shown but their photos are also affixed under the seal of the Rehabilitation Department. This receint book is for the years 1958- 59 to 1959-60 showing the payment of rent. In this receipt book the date of possession was shown to be the year 1951. This document was rejected by both the lower Courts on the grounds which cannot be supported. Unfortunately they made misstatements. The learned Rent Controller observed that the book bore the signature of the officer without the seal of the Department, while the learned Additional District Judge observed that though the seal of the Department appeared on the book, but no signature of the officer who issued the book had been affixed on the said book.
23. Apart from this contradictory statement made by the lower Courts we had perused the receipt book during the course of the argument and we found that the signature as well as the seal of the Rehabilitation Department appeared on the document. The date shown under the signature is 31st May 1958.
24. Then there is another document Exh. 0/29. This is a Demand Notice dated 17-1-1962, issued to Friends Cloth Stores calling upon the firm to pay the rent which was outstanding. It is true that in this the names of the partners are not shown, but this document must be read with other evidence on record. At least it shows that the firm M/s. Friends Cloth Stores was in occupation of the shop. It seems that in pursuance of this notice, matter was taken up with the Settlement Department and a Certificate Exh. 0/30 dated 15-2-1962 was issued, showing that the rent from 1-2-1948 to 20-4-1961 had been cleared by the tenant.
25. Then is the bill of the property tax Exh. 0/43 for the year 1963-64 issued in the name of Friends Cloth Stores for payment of the tax.
26. On the other hand the lower Courts relied upon Exh. 19/2 which is the extract from the evacuee property register dated 1st August (year not shown) and Exh. 0/7 dated 16th February 1956 which is the rent receipt. In both the documents Friends Cloth Stores represented by Masihul Zaman and Zakaria has been shown and thus it was concluded that there had been change of partners of the firm from time to time and, therefore, it could not be said that Abdul Kadir was one of the partners. I am unable to support their finding as apart from these two documents there is no other document showing that any change in the constitution of the partnership had taken place. These two documents are dated 1st August and 16th February 1956, whereas there is another document Exh.
27. 0/8 dated 29th June 1956 which is subsequent to these documents and it clearly shows the names of Mohd. Shafi and Abdul Kadir as partners of the firm of M/s. Friends Cloth Stores. Not only this but even the Income tax Assessm ent Orders from 1950-51 to 31st March 1966 consistently showed the same two persons Mohamed Shafi and Abdul Kadir as partners of the firm having equal shares in the firm of M/s. Friends Cloth Stores. Furthermore the relevant date for the purpose of the statutory tenancy under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act is 20th December 1958, and in view of the documents which have already been dealt with, it has been fully established that on that date the partners of the firm were Mohd. Shafi and Abdul Kadir. The fact that Masihul Zaman and Zakaria were the partners in 1954 or 1956 is of no marterial consequence.
28. It was further observed by the learned Additional District Judge that in the distress warrant proceedings it was never asserted that the firm was the tenant. This is clearly a misstatement of facts and stands dispelled by the objections which were filed in the distress warrant proceedings.
29. Even the learned Rent Controller had found that an objection was taken that the firm was the tenant.
30. Reliance by the lower Courts was also placed upon the Municipal Rent Receipt Exhs. 0/25 to 0/28 in which the different number of the property was shown. The number of disputed property is 117 while in the four receipts it has been shown as No, 118/1. There appears a clear mistake of the number in these receipts, as it was never the case of the respondent nor it was pleaded before me that the appellants' firm was in occupation of shop bearing No, 118/1. On the contrary there was a concurrent finding that the firm was in occupation of the disputed shop, but the dispute simply centered round the constitution of the firm, that is to say, whether Abdul Kadir was one of the partners or not. So far the firm and Mohd. Shafi are concerned there is no dispute in this regard. It was further observed by the lower Courts that in Exh. 0/31 dated 27th September 1961, it was shown that there were three partners. Of course I agree that there is no explanation with regard to this statement, but it pales into insignificance in view of the overwhelming documentary evidence in support of the case of the appellants that the firm consisted of two partners namely, Abdul Kadir and Mohd. Shafi. So I attach no value to this statement in the document.
31. Having held that the firm known as Friends Cloth Stores consisting of two partners Mohd. Shafi and Abdul Kadir was the statutory tenant, this brings me the question regarding notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act. This section requires the service of notice by registered post with acknowledgement due to the tenant. The notice in this case was served upon Mohd. Shafi. The learned counsel for the appellants pleaded that this could not be treated to be a notice within the meaning of section 30. On the other hand it was urged by the learned counsel for the respondent that even presuming that there was partnership consisting of two partners the service of notice upon one would be deemed to be the notice to the partnership as well as the other partners, in view of section 24 of the Partnership Act. I am unable to uphold this contention for the simple reason that the respondent never recognised the partnership as tenant nor Abdul Kadir as partner. He all along treated Mohd. Shafi to be the tenant. The notice upon him was served in his individual capacity and not as a partner of the firm. Consequently the service upon Mohd. Shafi could not be treated service upon partnership or the other partners. Thus no notice as required by section 30 of the Displaced Persons (Compensation and Rehabilitation) Act was served upon the appellants and therefore the application under section 13 of the West Pakistan Urban Rent Restriction Ordinance itself was not maintainable.
32. So far the question relating to the rate of rent is concerned there is no dispute. It was found by the lower Courts that the rent was Rs, 32 per month as the latest municipal assessment. To this no exception has been taken before me. The position with regard to the rent which was deposited under the distress warrant proceedings is as under :- {{TABLE}} Rs, Ps.
33. 256 00 Deposited on 16-12-1961.
34. 190 00 Deposited on 8-1-1962.
35. 260 00 Deposited on 17-4-1962.
36. 714 00 Deposited on 3-1-1964 268 50 982 50 {{TABLE}} The default which was pleaded in the application was with effect from 20th April 1961 to 4th December 1963 and accordingly at the rate of Rs, 32 per month the amount worked out Rs, 1,008.
37. Thus on the date of the application Rs, 294 were due from the respondent, and after the amount of Rs, 268.50 was deposited on 3-1-1964, there was still a balance of Rs, 25.50.
38. In view of my finding that the notice as required by section 30 of the Displaced Persons (Compensation and Rehabilitation) Act was not given, I allow the appeal and set aside the orders passed by the lower Courts and dismiss the eviction application with costs throughout.