1. ' This appeal under section 21 of the Sind Rented Premises Ordinance, 1979, is filed by the appellants/tenants against order of eviction passed by the Rent Controller in Rent Case No, 1423 of 1972, dated 14-5-1985 directing eviction of the appellants from the premises both on the ground of default in payment of rent and sub-letting.
2. ' In the rent application instituted by the respondent she alleged default against the deceased tenant Mst. Shamsunissa for the period from March, 1972 to June, 1972. The rent application was instituted before the Rent Controller on 4-7-1972. In the written statement the deceased tenant denied default alleged against her and asserted that the rent was paid by her regularly through her sons by means of cheque as well as through cash. The plea of the respondent/landlady before the Rent Controller was that the premises which was originally inherited by her alongwith others was assigned to her exclusively by virtue of a decision in Suit No, 183 of 1971. It was her case before the Rent Controller that after the said property was transferred exclusively in her favour by virtue of the consent decree in the above suit, she served a notice, dated 27-10-1971 upon the deceased tenant Mst. Shamsunissa asking her to pay rent of the premises in future to her. The receipt of the notice is not disputed. It is also not disputed that thereafter, rent was being paid by Shamsunissa upto February, 1972. The dispute between the parties appears to have arisen in the month of March, 1972, when the rent for that month was tendered by one of the appellants through a Chowkidar of the respondent who had gone to collect rent for that month. It is the case of the appellants that the cheque, dated 12-4-1972 which was given by them to the Chowkidar of the respondent in discharge of the liability of rent for March, 1972, was returned by the Chowkidar saying that it was dishonoured when presented. However, the respondent in her evidence before the Rent Controller produced the letter, dated 14-4-1972 which shows that the cheque was forwarded through this letter. The learned counsel for the appellants contends that although the letter, dated 14-4-1972 was received by the appellants but it did not contain the cheque referred therein which was delivered to them earlier to the delivery of letter by the Chowkidar of the respondent. Be that as it may, the facts remain that on 14-4-1972 through the letter Exh. A/8 the respondent protested against the sending of rent through cheque which was drawn by the firm Bahauddin Watch Company. It is also an admitted position that in spite of written protest of respondent, dated 14-4- 1972, the appellants again sent that cheque to respondent through the letter, dated 20-4-1972 which is signed by one of the partners of Bahauddin Watch and Optical Company. The landlady once again returned this cheque on 17-5-1972 reiterating that this cheque could not be accepted by her as Mst. Shamsunissa was her tenant and not the firm Bahauddin Watch and Optical Company but in spite of that the deceased tenant did not tender rent in her own name. It, s also clear from the evidence on record that thereafter 4 months rent was sent together by money order in the month of July, 1972, which was received by the son of the landlady on 10-7-1972 after, filing. Of the above rent case but immediately on realising that the money order was sent by Messrs Bahauddin Watch and Optical Company and not by Mst. Shamsunissa (the deceased tenant); the amount was returned immediately by the respondent. Before the Rent Controller it was contended by the appellant that there was no default in payment of rent as the rent for the month of March was tendered by the tenant in the month of April which was unreasonably refused by the landlady.
3. The facts however, remain that the evidence on record shows that the cheque covering rent for the month of March, 1972 was drawn by firm and the cheque which is also on record is signed by a partner of the firm. In these circumstances the refusal by the landlady to accept the cheque for the month of March, 1972 was neither unreasonable nor it could be described as arbitrary. Similarly, the receipt of 4 months rent on 10-7-1972 by the landlady's son, in these circumstances also did not have the effect of erasing the consequences of default already committed by the deceased tenant. It may also be mentioned here that after the filing of the rent case which was instituted on 4-7-1972 no tender of rent was made by the deceased tenant or appellants until passing of rent order on 26th January, 1974. Learned counsel for the appellant contends that as there was a practice for acceptance of accumulated rent by the landlady therefore, they could not be heki to be defaulter in payment of rent. Firstly, no evidence was led before the Rent Controller to establish any such practice on the part of the respondent and secondly, the property itself came to the share of the respondent on 27th October, 1971 and the dispute between the parties arose in the month of March, 1972 namely, after about five months of the transfer of this property in favour of the respondent and, therefore, there could not have been any occasion for the respondent to have accepted accumulated rent in lump sum. In these circumstances, the finding of the Rent Controller holding the appellants as defaulters in payment of rent was quite in consonance with the evidence on record. I, therefore, uphold the finding of the Rent Controller on issue of default.
4. ' The next ground of ejectment pleaded before the. Rent Controller related to the subletting of the premises by the deceased tenant Mst. Shamsunissa to a firm named Bahauddin Watch and Optical Company. The learned counsel for the appellants contends that the firm namely, Bahauddin Watch and Optical Company was a family concern which consisted of two sons and daughter-in-law of the deceased Mst. Shamsunissa. He has referred to the deed of partnership at pages 49 and 73 of the lower Court record which shows that the firm Bahauddin Watch and Optical company consisted of the two sons and daughter-in-law besides the deceased Mst. Shamsunissa.
5. A reading of the partnership deed will show that no exception was made in the partnership deed with regard to tenancy rights of the premises which were thrown in the common pool of the partnership. It is provided in paragraph 17 of the partnership deed that upon dissolution of the partnership all assets belonging to the partnership business shall revert to the contracting parties which included besides the deceased tenant her two sons and a daughter-in-law. The learned counsel for the appellants contends that Mst. Zeenat Naz being the daughter-in-law of the deceased tenant could not be. Considered as a stranger. The fact that Mst. Zeenat Naz (one of the partners of the firm) was also wife of one of the sons of deceased tenant could not improve the case, in any manner. The fact that the deceased tenant died during the proceedings and her two sons who are partners of Bahauddin Watch and Optical Company have inherited the tenancy rights of the premises also made no difference in the case as in any case upon the death of Mst.
6. Shamsunissa the tenancy rights in the property could not devolve on Mst. Zeenat Naz who is partner in the firm as well. The Rent Controller in his order has referred to the case of Manik J.
7. Mobed and another v. Shah Behram and others PLD 1974 SC 351 to uphold sub-letting in the case.
8. The learned counsel for the appellant has referred to the observations appearing at page 365 of the report of that case to contend that unless it is shown that the use of the premises could not have been possible without using the business it cannot be said that it amounted to subletting. To further elaborate his submission the learned counsel cited the instance where a dairy farm, a bakery or cinema house is let out to a person alongwith its machinery and other fitting and fixtures and contended that in such case the premises cannot be used effectively by such person without the use of the fitting and fixtures provided in the premises. It is accordingly contended by the learned counsel that as in the present case there was no such case made out by the respondent therefore, no subletting could be said to have been proved against the appellants. I am unable to accept the contention of the learned counsel for the appellants. In the first instance no such case was pleaded before the Rent Controller. Secondly, it is no body's case that upon constitution of partnership only the business was taken over by the partners and the premises was not subject to the use of the firm. On the contrary the reading of partnership deed will show that no exception was made therein to show that the tenancy rights continued to remain vested with the deceased tenant. Under pars 17 of the partnership deed the entire assets of the partnership were liable to be distributed among contracting parties (partners) in the event of dissolution which also included the tenancy rights in the premises. In such circumstances it could not be said that the tenancy rights in the premises did not form part of assets of the partnership business. Therefore, no exception can be taken to the finding of the Rent Controller that the premises were sublet by the deceased Mst. Shamsunissa to the firm which consisted of different persons. It may also be mentioned here that transfer of the premises by the deceased tenant to her sons during her lifetime also amounted to subletting of the premises as it was only after the death of Mst.
9. Shamsunissa that the two sons of the deceased could claim tenancy rights. For the aforesaid reasons, I do not find any reason to interfere with the finding of the Rent Controller. The appeal is accordingly dismissed. The appellants are allowed four months time to vacate the premises subject to the condition that they shall continue to deposit monthly rent in Court regularly. There will be no order as to costs.