' This second appeal is directed against the impugned judgment, dated 17th September, 1978 of learned IVth Additional District Judge, Karachi, whereby appeal against the order of ejectment on the ground of default has been dismissed.
' Briefly stated the relevant facts are that the tenement in question is office accommodation in Rooms Nos. 155 and 156 on the first floor in the building known as Liaquat Bazar situated on plot Nos. 8 and 9/D-1 in Sarai Quarters, M. A. Jinnah Road, Karachi. Rent is Rs, 60 p. m. (Rs, 30 for each room). There is an agreement in writing which was executed on 8th February, 1954. Appellant namely Messrs Syed Brothers is tenant and respondents namely Messrs Film Exhibitors Limited are landlords. Both parties hereinafter will be referred as such. On 10th September, 1975 Landlords filed an application under section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the said Ordinance) in the Court of Xth Civil Judge and Rent Controller, Karachi against the tenant for ejectment on the ground of wilful and deliberate delault in the payment of rent from 1st July, 1973 to 30th September, 1975 (for 26 months). Sohail Qureshi filed written statement admitting tenancy denying default and claimed that he is in possession of registered A./Ds. Of cheques sent to the landlords. It is further stated in the written statement that original tenant M. A. Qureshi, Proprietor of the firm died on 17th March, 1975 and his son answering tenant namely Sohail Qureshi is only one of the legal heirs and had paid Rs, 1,500 to the landlords for adjustment of rent if any. It is further stated in the written statement that suit No, 159/75 is pending in the High Court which is being contested by so many legal heirs of the deceased. Names of about ten L. Rs, of late ' Mr. M. A. Qureshi are mentioned in the written statement and plea has been taken therein that ejectment application be dismissed as landlords have not impleaded L. Rs, of the deceased as parties.
2. On 7th June, 1976 Tentative Rent Order was passed and at that time the tenant and his counsel were absent. Direction was given for deposit of arrears as well as future monthly rent. Issue with regard to wilful default was framed. So far as evidence is concerned landlords examined Shaikh Abdul Rasheed, Managing Director and on behalf of tenant Sohail Qureshi examined himself and one witness Atiqur Rehman who deposed that in his presence Sohail Qureshi paid Rs, 1,500 to the landlords for adjustment of rent. After evaluation of the evidence the Rent Controller granted ejectment holding that wilful default has been committed. An appeal was filed against the said order of ejectment which was dismissed by the learned Additional District Judge as stated above, who has agreed with the learned Rent Controller and has upheld his finding.
3. So, in this second appeal on the question of default the findings of the two Courts below are concurrent and the interference of the High Court is sought on behalf of the aggrieved tenant on the ground that the question of default is mixed question of law and fact and there has been gross misreading of evidence by the two Courts below and further that there are some legal points involved also.
4. So far misreading, as alleged, is concerned, I can say safely that this contention is unsustainable.
From the side of the landlords Shaikh Abdul Rashid, Managing Director, who has been examined has testified that last rent was paid for the month of June, 1973 on 18th August, 1973. He has produced a counter-foil of receipt of rent as Exh. 4 and further stated that for the months of July and August, 1973 cheques were sent but the same were refused being late payment thereafter no rent was tendered. He has produced Exh. 5 which is letter from tenant enclosing cheque for rent for July and August, 1973 and Exh. 6 which is a letter from the landlords to the tenant returning the said cheque on the ground that payment was late and beyond the stipulated time. This witness further stated in his evidene that after the death of M. A. Qureshi, his son Sohail Qureshi was looking after the affairs of the firm. As against this Sohail Qureshi has deposed before the learned Rent Controller that his father used to run the firm "Messrs Syed Brothers" and he died on 17th March, 1975. He has admitted the tenancy and the rate of rent. He has further stated in his evidence that after the death of his father Shaikh Abdul Rashid informed him that there were arrears of rent and he paid him Rs, 1,500 for adjustment. This payment was made in presence of Atiqur Rehman. Shaikh Abdul Rashid did not issue any receipt. After the payment of Rs, 1,500 this witness traced out the record and found that arrears of rent were paid by his father and he produced copies of eight letters written by his father to the landlords Exh. 9 to Exh.
16. He has also produced postal receipts Exh. 17 to Exh. 24 and four A/D. Receipts Exh. 25 to Exh. 28 and one other letter Exh. 29 complaining about irregularity in sending rent bills and leakage of roof.
Sohail Qureshi in his cross-examination has admitted signature of his father Exh. 5 which is a letter, dated 16th August, 1973 enclosing cheque for the rent of July and August, 1973 but expressed ignorance about Exh. 6 which is reply to Exh. 5 sending back the cheque to Messrs Syed Brothers on the ground of late payment. Sohail Qureshi has further categorically admitted in his cross- examination before the learned Rent Controller that he had not verified from the Bank as to whether the cheques sent by his father were encashed or not. He further admitted having not enquired in writing from landlords as to whether there were arrears of rent against his father or not.
Strangely enough when Shaikh Abdul Rashid, Managing Director of landlords was in the Box he was not confronted by Sohail Qureshi with these eight letters Exh. 9 to Exh. 16 purporting to have been written by his father sending rent for the period of alleged default. No further proof was produced from the Bank that these cheques were encashed and the money specified in the cheques was debited. On the other hand Sohail Qureshi has admitted that he made. No such enquiry from the Bank whether these cheques were encashed or not. Even counter-foils of the cheques were also not produced. No question about these letters was put to the landlord and no reason was assigned for not so doing it. Even if it were to be assumed that these letters were traced out belatedly after the examination of the landlord but then, had it been so, request could have been made to the learned Rent Controller for recalling of the landlord's witness for confrontation with these documents but no such attempt was made. Admission by Sohail Qureshi that he did not verify from the Bank about the payment of these amount demolishes his assertion that payment was made. The evidence produced by the tenant on the question of default is most unsatisfactory and inadequate hence both the Courts below have rightly held that default has been committed.
5. Evidence of Atiqur Rehman is that Sohail Qureshi made payment of Rs, 1,500 in his presence to the "opponent" in his office and Sohail Qureshi further told him that these Rs, 1,500 were to be adjusted against the arrears. Evidence of this witness is not convincing when Shaikh Abdul Rashid was in the Box, it was not put to him that he was paid Rs, 1,500 by Sohail Qureshi in presence of Atiqur Rehman. The question was general in nature and reference was made to the alleged payment of Rs, 1,500 and it was denied by him that any payment was made to him before any witness. In the written statement it is mentioned that an amount of Rs, 1,500 was paid by Sohail Qureshi to the opponent for adjustment of rent but no mention is made that it was in presence of a witness. No mention is made of name of any witness. Name of Atiqur Rehman appears to be an afterthought. Sohail Qureshi has just casually mentioned that he had given Rs, 1,500 to the landlord in his office in presence of Atiqur Rehman and no receipt was issued to him. In cross he stated that he did not remember the date when he paid Rs, 1,500. Atiqur Rehman slated in his evidence before the Rent Controller that he went to Sohail Qureshi for condolence and then accompanied him to the Office of Shaikh Abdul Rashid. Sohail Qureshi took out some money from his pocket and gave it to Rashid and also told him that these were Rs, 1,500 for adjustment against the arrears. Sohail Qureshi asked Rashid to send the receipt of the amount after adjustment. It is not understandable why the receipt was not issued if such payment of Rs, 1,500 was made. Both parties were firms and did business by correspondence. No satifactory explanation is given. Atiqur Rehman has admitted in his cross-examination that he could not give the address and number of office of Shaikh Abdul Rashid and he could not tell on what date or day the payment was made. This evidence just does not ring true. Both the Courts below were right in not relying upon this evidence.
6. It was feebly argued by Mr. Nizam Ahmad that agreement in writing between the parties was not a registered document and was for an indefinite period, hence it could not be relied upon and tenant had the statutory benefit of paying rent within sixty days. Perusal of this agreement shows that it is on two one-rupee stamp papers and was executed way back on 8th February, 1954 but it is not registered neither period of time is mentioned therein for which it is supposed to be operative. Legally speaking, this document has no value or binding force of an agreement contemplated A under section 13(2)(i) of the West Pakistan Urban Rent Restriction Ordinance, 1959 because it does not comply with the requirements of Registration Act but then even if it is so and the law allows the tenant to pay rent within sixty days from the period from which the rent is payable but this argument will not help the tenant because it is claimed by the landlord that default has been made from 1st July, 1973 to 30th September, 1975 for about 26 months and no satisfactory evidence oral or documentary has been produced to prove that payment was made and default was not committed.
7. Mr. Nizam Ahmad came out with another argument that there is a legal point involved which is to the effect that this is a clear case of non-joinder of parties and legal representatives of deceased tenant M. A. Qureshi were not impleaded. He first contended that rent proceedings were initiated after the death of M. A. Qureshi as such these proceedings were against a dead person and on that ground a nullity in the eyes of law. No doubt, it is indisputable that M. A. Qureshi died on 17th March, 1975 and the Rent Case was filed on 10th September, 1975. In this context tenancy agreement executed by the parties, which is Exh. 2 on the record shows that agreement of tenancy was between Messrs Film Exhibitors Limited as Landlords and Messrs Syed Brothers as tenant. On behalf of tenants the agreement is signed by the proprietor. Sohail Qureshi has B admitted signature of his father on Exh.
2. This agreement may be invalid for the purpose of section 13 (2) (i) of the said Ordinance but can be acted upon for other collateral terms and conditions between the parties. Secondly correspondence is also carried on by Messrs Syed Brothers as tenant. Rent receipts are issued in the name of Messrs Syed Brothers as tenant. In the application for ejectment under section 13 of the said Ordinance, tenant is clearly shown as Messrs Syed Brothers.
8. In these circumstances it is crystal clear that tenant is none else but Messrs Syed Brothers and not M. A. Qureshi. Mr. Nizam Ahmad has cited the case of Imperial Dyeing and Printing Mills, Karachi v. Safdar Ali (1). There is absolutely no cavil with the proposition laid down in this reported case which is to the effect that provisions of Order XXII, C. P. C. Regarding abatement do not apply to the rent proceedings specifically but yet concept of abatement being based on accepted norms and fundamental rule of judicial procedure will have application to such proceedings., To this extent there is no dispute and the learned Rent Controller is competent to evolve his own procedure to deal with such a situation not necessarily applying all the provisions of Order XXII, C. P. C. With technical procedural details. Nevertheless the concept of abatement can be kept in view and followed by the Rent Controller. Apart from what is stated above the facts of the reported case are distinguishable in two aspects. Firstly the tenant was alive when the ejectment case was filed and after filing of written statement, he died and secondly in the ejectment application in the array of parties, the tenant was described as Messrs Imperial Dyeing and Printing Mills, Karachi (proprietary concern through its proprietor Mr. G. A. Karim). Tenant filed his written statement and did
(1) PLD 1971 Kar. 778 ' not dispute the sole proprietorship character assigned to him. Subsequently the tenant died and such information was given to the Controller but no steps were taken to bring the L. Rs, of tenant on the record and consequently ejectment application was dismissed on the ground that it abated.
9. In the instant case M. A. Qureshi died before commencement of rent proceedings and secondly ejectment application has been filed against Messrs Syed Brothers as tenant and there is no mention in the title of application that Messrs Syed Brothers is represented by the sole proprietor M.
A. Qureshi. It would be pertinent to point out at this stage that Mr. Wahab counsel for the landlords cited before me the case of Rashid Alimad and others v. Muhammad Irshad ( i) in which it is held that although provisions of Order XXII of C. P. C. Are not applicable in rent proceedings yet the principles can be invoked and any procedure can be adopted by the learned Rent Controller unless expressly prohibited. It is further held therein that if legal representatives do not appear the petition can be dismissed for non-prosecution but if legal representatives or any one of them appears, the Court cannot refuse to substitute them for the deceased. In the reported case landlord himself was alive and filed application for ejectment and subsequently died and his legal representatives sought to be impleaded in the proceedings.
10. Now in the instant case tenant is not M. A. Qureshi but Messrs Syed Brothers and the case was filed against Messrs Syed Brothers after the' death of M. A. Qureshi.
' In these circumstances and for the facts and reasons mentioned E above, I am of the view that question of bringing the L. Rs, on the record did not arise because tenant was not M.A. Qureshi but Messrs Syed Brothers Another view can be taken that Sohail Qureshi son of M. A. Quresbi voluntrily intervened in the rent proceedings, filed written statement, admitted possession of the premises and record of the firm and claimed to have paid rent of Rs, 1,500 to the landlord for adjustment of arrears. He gave the names of Rs, in the written statement just to create legal hurdles in the way of landlords. He could have asked that legal representatives be brought on the record but he refrained from doing so. He had filed a suit in the High Court for Letter of Administration against other L.Rs, who are his brothers and sisters. In the rent proceedings Sohail Qureshi assumed the role of tenant and made a strong contest that there was no default for which he produced evidence. In these circumstances no exception can be taken to the procedure adopted by the Rent Controller in bringing the proceedings to an end in the mariner as he did. In any case it was only a matter of procedure and in the second appeal in the High Court L. Rs, have been brought on the record. It may be pointed out here that at the time when second appeal was filed in the High Court appellant was already out of possession of the disputed premises which was taken over by the respondent in the execution proceedings in the Court of Rent Controller.
' For the facts reasons aforementioned, this appeal is dismissed with no order as to costs. .
(1) PLD 1975 Lab. 1195