' This first rent appeal is preferred by the appellant/landlord against the order of Rent Controller, Sukkur rejecting Rent Application No. 105/77 filed by him against the respondents for their eviction.
' The application was instituted by the appellant on ground of default, subletting and personal and bona fide requirement. The application was opposed by the respondents and the Rent Controller after recording evidence of parties dismissed the same on all the grounds. I have heard the learned counsel for the parties at length and for reasons hereinafter to follow I accept this appeal, set aside the order of the Rent Controller and grant the application.
' The default in the application was alleged by the appellant from July, 1975 till the filing of rent application which was instituted on 10th of December, 1977. The tenancy between the parties is under a written agreement. It is not disputed that at the time of commencement of the tenancy a sum of Rs. 10,000 was given by the applicant No. 1 as refundable deposit which was to be refunded on the termination of tenancy. The contention of the respondents before the Rent Controller was that the appellant had received rent upto August, 1977 at the rate of Rs. 200 per month, and thereafter the rent was enhanced to Rs.400 per month from 1-9-1977 in proceeding which the appellant started before the Martial Law Authorities. It was contended that rent at Rs.400 per month was tendered by the respondent but it was refused by the appellant. The appellant in his evidence before the Rent Controller denied any agreement having been arrived at between the parties before the Martial Law Authorities. The Rent Controller while holding that no default was committed by the respondents in payment of monthly rent held that payment of rent up to August, 1977 is admitted and thereafter rent was enhanced to Rs. 400 per month between the parties before the Martial Law Authorities under an agreement and as the rent sent by the respondent at the rate of Rs. 400 per month was refused by the appellant there was no default in payment of rent.
The alleged agreement between the parties entered into before Martial Law Authorities is on the file of the Rent Controller but it is admittedly not signed by the appellant or any other person on his behalf. It is also admitted by the learned counsel for the respondent that the person who allegedly wrote this agreement was not examined before the Rent Controller nor any person from the office of S.M.L.A. was examined to prove the above agreement. During pendency of appeal the respondents moved a miscellaneous application for producing an alleged receipt of Rs.
10.000 alongwith an application under section 21(3) of the Sind Rented Premises Ordinance, 1979, alleged to have been executed by appellant at the time the agreement was allegedly entered into before Martial Law Authorities, but this receipt also does not bear signature of the appellant. In these circumstances there is no evidence in support of the agreement alleged by the respondents.
In view of categorical denial by the appellant in his evidence before the learned Rent Controller that no such agreement was ever made between the parties before the Martial Law Authorities the burden of proving this agreement was on respondents which they failed to discharge.
Consequently the finding of Rent Controller that there was agreement between the parties for enhancement of the rent before the Martial Law Authorities is not supported by evidence on record.
Again the allegation in the rent application is that the respondents did not pay rent from July, 1975.
' The contention of the respondents in their written statement was that the rent was paid by the respondent upto August, 1977. The learned counsel for the respondents contended before me that this fact was admitted by the appellant before the Martial Law Authorities both in the alleged agreement and the application filed by him. I have already pointed that the evidence on record did not prove any agreement between the parties. The copy of application produced by respondents clearly shows that before Martial Law Authorities, appellant asserted the rent was due from July, 1975. The respondents failed to produce any other evidence to establish payment of rent upto August, 1977. No doubt rent was tendered through money order but it is admitted that it related to period after August, 1977 and that too was not tendered within the statutary period of 60 days from the due date. The learned counsel for the respondents then contended that the appellant was holding a sum of Rs. 10,000 as a deposit and since the agreement of the tenancy came to an end the respondents were entitled to the adjustment of that amount against the rent and if this adjustment is allowed there was no default on the part of respondents in payment of rent on the date of filing of application. To this contention of the learned coui.sel for the respondents, the learned counsel for the appellant replied that this deposit was made by the tenant Messrs Zafar Ahmed, Islamuddin while its adjustment is claimed by respondent No. 2 namely Messrs Zafar Ahmed, Muhammad Farooque, which cannot be allowed. It is not disputed that the amount of Rs. 10,000 was paid by the original tenant M/s. Zafar Ahmed, Islamuddin at the inception of the tenancy and this amount was refundable to them upon termination of the tenancy and handing over possession of the premises. There is nothing on record to show that the appellant at any stage consented to the transfer A2 of this amount in favour of respondent No.
2. In fact the allegation of appellant in the case is that respondent No. 1 without consent of appellant transferred possession of premises to respondent No.
2. In these circumstances there was clear default in payment of rent by the respondent No. 1 and Rent Controller wrongly decided the issue. I accordingly reverse the finding of learned Rent Controller on the issue of default.
' The second ground of ejectment pleaded in the rent application is subletting of the premises by respondent No. 1 to respondent No.
2. It is not disputed before me that the tenancy was intitially created in favour of M/s. Zafar Ahmed.
Islamuddin. It is also admitted that original rent agreement on behalf of the firm was signed by Islamuddin as partner of the firm. It is an admitted position on record that Islamuddin has retired from partnership and in his place a new partner Muhammad Farooque has been admitted and the business is now carried in the premises in the name and style of M/s. Zafar Ahmed, Muhammad Farooque. The appellant in his evidence before the Rent Controller categorically stated that he never accepted the new firm of M/s. Zafar Ahmed, Muhammad Farooque as the tenant of shop in dispute. The respondents on the other contended before the Rent Controller that the firm M/s. Zafar Ahmed, Muhammad Farooque were accepted as tenant by appellant on enhanced rent of Rs.400 p.m. before Martial Law Authorities. In this connection the respondents relied before the Rent Controller on the agreement dated 8-4-1978 alleged to have been entered into between the appellant and respondent No. 2 before the Martial Law Authorities. I have already reached the conclusion that no such agreement was ever entered into between the parties. The burden of proving consent on the part of the appellant in accepting respondent No. 2 as tenant was on the respondents which they failed to discharge. The learned counsel for the appellant relied on the case Premier Mercantile Service v. S.M. Younus PLD 1982 SC 79 in which conversion of a partnership firm into a limited Company was considered as transfer of possession by the tenant to a stranger without consent of "landlord. In the present case, the induction of a new partner in the firm after retirement of one of the original tenant Islamuddin is admitted which amounted to induction of a new a tenant in the premises and this could not be regularised without consent of the appellant and which the respondents failed to prove.
' The learned counsel for the respondents attempted to show that the present fact did not constitute coming into existence of a new firm and as such their was no subletting. The learned counsel in this connection relied on the case of Burma Oil Mills Ltd. v. Zamindar Cotton Factory PLD 1981 Kar.
141. The decision referred by the learned counsel was delivered by D.B. of this Court of which I was a member and judgment was also incidentally written by me. The above-cited case with due deference to learned counsel has no application to the present case. In that case the contention raised before the D.B. was that upon death of a partners and induction of his L.Rs. in the partner ship a new firm comes into existence and therefore the suit instituted by the old firm in which the deceased was a partner could not be continued by the firm in which the L.Rs. of the deceased are partner. This contention was repelled by us and it was held that upon death of a partner and induction of his L.Rs. as partners no new firm comes into extension and the suit instituted by the old partnership firm could be continued by the firm which included LRs of the deceased partner. No such question arises in the present case as Muhammad Farooque who is said to be the son of Zafar Ahmed has been joined as partner in the firm during the Vlifetime of his father and not as a result of death of his father. I accordingly hold that the appellant succeded in proving the second ground of ejectment also and accordingly reverse the finding of Rent Controller on this issue as well.
' The last ground urged in the application related to personal and bona fide requirement of appellant. The personal bona fide requirement is pleaded in paragraph 5 of the rent application as follows:- "5. That the applicant requested the opponent No. 1 that since he had dissolved the partnership and wound up his business, as such he should give him vacant possession as one of his sons namely Niaz Ahmed wanted to do some business as he is sitting idle, on which the opponent No. 1 promised to give vacant possession shortly."
' The learned counsel for the appellant contends that the evidence of applicant and Niaz Ahmed in the case fully established the case of personal and bona fide requirement pleaded in the application. The applicant in his evidence before the Rent Controller stated that his son Niaz Ahmed is sitting idle and his other son Skaukat Hussain who was minor at the time of filing of application is also grown up and he is also sitting idle and as such the premises is needed by him for these two sons. Niaz Ahmed in his evidence also stated that he and his brother Shaukat Hussain are sitting idle and the premises is needed by his father for them. Attempt was made before the Controller to show that Niaz Ahmed is settled at Karachi and was serving in a medical firm there, but this suggestion was denied both by the appellant and Niaz Ahmed in cross-examination. The learned counsel for the respondent attempted to show that admission by the witness of applicant and Niaz Ahmed that children of Niaz Ahmed were born at Karachi did show that he was settled at Karachi, and therefore, request was not bona fide. Firstly, the admission regarding birth of the children of Niaz Ahmed at Karachi is not sufficient to prove that Niaz Ahmed has no intention of residing permanently at Sukkur or to do business at Sukkur. Secondly, in the present case it is the case of the appellant which was not disputed by respondents that Niaz Ahmed was married at Karachi and his inlaws are settled at Karachi. Therefore, the birth of children of D Niaz Ahmed in these circumstance at Karachi was not such a circumstances which could lead to conclusion that Niaz Ahmed is also settled at Karachi. Niaz Ahmed in his cross-examination categorically denied that he was permanently settled at Karachi and stated that he is permanently residing at Sukkur. In these circumstances the above admission could not be held as sufficient to dislodge the case of personal and bona fide requirement pleaded by the appellant. The question of mala fide raised by the learned counsel for the respondents is otherwise of not much relevance now in view of complete safeguard provided to tenant in the r Ordinance by insertion of section 15-A in the Ordinance of 1979. There is nothing on record to show that Niaz Ahmed or Shaukat Hussain are occupying any shop in the same urban area or that they owned or possessed any such property in that urban area. In these circumstances F I hold that the appellant also succeeded in establishing his personal and bona fide requirement in the case.
' In view of the above discussion I reverse the order of the Rent Controller and grant the application of the appellant. The respondents are directed to put the appellant in possession of the premises within six months. The appeal was disposed by me by a short order dictated in Court after hearing the learned counsel for the parties on 10-3-1983 and these are the detailed reasons for that short order.