Respondent Hakim A.I had brought ejectment petition against the appellants on the ground of default in the payment of rent and the same was accepted and order of ejectment was passed against the appellants on 30-5-1984. The appellants/tenants have come in appeal.
2. The facts as given in the ejectment petition are that respondent Hakim A.I had rented out two shops in the Textile Plaza M.A. Jinnah Road Karachi to the appellants on 3-6-1982. The rent of each shop was Rs.100 per month and advance rent for seven months for the period from June 1982 to Dec. 1982 amounting to Rs.1,400 was paid at the commencement of tenancy. The appellants did not pay any rent whatsoever except the advance rent of Rs.2,400 for the period ending December, 1982. The rent was payable in advance on the 5th of each month and when the rent for 3 months fell in arrears, the respondent served the appellants with notice on 8-3-1983 asking them to vacate the premises for wilful default in payment of rent for a continuous period-bf three months. When the appellants failed to comply with the notice, the ejectment petition was filed on 12th April, 1983.
In their written statement, the appellants claimed that ejectment petition was not maintainable because the tenancy was in the name of their firm `Adrian and Wahid' but the ejectment application was moved in their individual names. On facts, it was stated that there was no written agreement between them and the respondent with respect to the terms and conditions of the tenancy which were governed by the general law of the land and rent of each month was payable in the following month. It was further stated by the appellants that they had offered the rent in time each month but the respondent refused to receive it from them and told them that the rent might be paid for Jan. And Feb. Together in March 1983, but when the, appellants did this the respondent demanded Rs.1,500 for five months, from January 1983 to May 1983, which meant that he wanted an arbitrary increase in the rate of rent from Rs.100 .Per month to Rs.150 per month for each shop or Rs.100 for both the shops. This was refused by the appellants and they sent the rent for the period from Jan. To May, 1983, amounting to Rs.1,000 by money order dated 10-3-1983 but respondent even refused to receive the money order. The appellant then deposited the rent in the Court vide Miscellaneous Application No.1 156 of 1983. The respondent examined himself arid has produced his own affidavit in support of his case and produced the receipt of the advance rent of Rs.2,400 as well as copy of the notice dated 14th April 1983, and closed his case. The appellants also tendered their affidavit in support of their case. Learned Rent Controller framed the following issues from the pleadings of the parties.
(1) Whether the application is maintainable under the law?
(2) Whether there exists relationship of landlord and tenant between the parties?
(3) Whether, the opponents have defaulted in payment of rent.
(4) What should the order be?
3. All the issues were decided in the affirmative and as a result an order of eviction was passed against the appellants against which this appeal has been filed.
4. Counsel of the parties have been heard and record of the case has been perused.
5. Issues No.1 and 2 pertain to the legal objections taken by the appellants that the tenancy was in the name of the firm and therefore the appellants could not have been proceeded against in their individual names and as such the ejectment petition was not maintainable and there was no relationship of landlord and tenant between the parties. There is no force in this contention of the appellants. There is no rent agreement between the parties and there is no proof of the contention of the appellants that the firm `Adrian and Wahid' was the tenant. The appellants have, in this connection, relied upon the receipt annexure `A' which is in respect of the advance payment of Rs.1,400 at the time of the commencement of the tenancy and it is to the name of `Adrian and Wahid'. This rent receipt is however not equivalent to a rent agreement, as claimed by the appellants themselves. Besides, there is not even a prima facie evidence to show that any firm by this name does even exist. Appellant Muhammad Salim stated in his cross-examination that Adrian was his son aged about 2-1/2 years and Wahid was the son of his brother Muhammad A.I and this son was also of the same age. It is thus evident that both the appellants are carrying on business in their' own name and the name of `Adrian and Wahid' on the rent receipt makes no difference. Moreover, a firm has no separate legal entity like a corporation or a limited company and the partners of a firm are jointly and severally Jiable for the liabilities of the firm. The only relevant point in this regard is as to who is responsible for the payment of rent. It is clear that the appellants are liable tot pay rent as per their own admission. They said that they had tendered the rent in time and it was refused. They further said that they sent the rent by money order and the money order was refused. The tender of rent either in person or through money order was not made by the firm. It was made by the appellant in their individual capacities. In this connection I am referred to PLD. 1975 Kar. 808, PLD 1982 SC 79 and 1982 CLC 1241. These authorities are only to the effect that a firm can sue and be sued but they do not show that a firm cannot be sued through a partner. At any rate reliance on these authorities was misplaced because, firstly, there is no evidence that any firm existed at all and, secondly, it is sufficiently char on record that the appellants had taken on rent these two shops in their individual capacities. I may also note here that the Supreme Court authority' referred to above is on an altogether different point and does not apply to the facts which are the subject-matter of issues Nos.1 and 2. Tile Supreme Court only holds that when a firm is transferred into a limited company-, it is a case of subletting because a firm is quite different from a limited company and therefore when the firm ceases to exist and its successor limited company occupies the premises without the consent of the landlord it means that the firm has vacated the premises and given them to the limited company which is a distinct legal entity having nothing to do with the firm and this is valid ground for the ejectment of the limited company from the premises.
6. We then come to issue No.3 which is the only remaining issue and is the only issue on the merits of the case. In the absence of a properly executed rent agreement, the respondent relied on the terms and conditions printed on the back of receipt annexure-A and says that these terms and conditions governed the relationship of landlord and tenant between him and the appellants. The learned Rent Controller has decided that these term, and conditions are binding upon the parties and constitute a valid agreement between the parties. In coming to this conclusion he has relied on 1982 CLC 1964 in which it is held that the conditions on the back of rent receipt are part of the agreement and are binding on the tenant. On this point learned counsel for the appellants referred me to 1982 CLC 656. As it happens, the judgment in this later authority is subsequent to the decision in the authority relied upon by the learned Rent Controller even though this subsequent decision was reported earlier. According to this later authority, terms and conditions on the back of rent receipt are not binding on the tenant as they do not constitute valid agreement. In this respect 1986 CLC 380 may also be referred to in which the same view is expressed. Learned counsel for the respondent referred me to 1941 (Vol.1) AER 172. It is an English case in which a Railway ticket contained some terms and conditions on its back whereby the Railway company exonerated itself from the liability of any injury suffered by a passenger as a result of some defect of maintenance to the railway carriage or on the railway platform. When a case for damages was brought out by a railway passenger for having suffered injuries as a result of fall because of having slipped on the platform due to a hole in the middle of it, it was held that the terms and conditions printed on the back of the railway ticket constituted a valid contract between the parties, specially because on the front portion of the railway ticket the warning "for conditions see back" was written. In this particular case, however, the -railway company wad not held responsible for the-injury sustained by the railway passenger because this warning on, the front portion of the railway ticket was obliterated by the date - stamp put on it by the railway clerk who issued the ticket and it was held that since this warning could not be read, the passenger was not duly informed of the terms and conditions. There is no necessity to consider the applicability of this foreign authority because the rulings of our own High Court on this particular point are available and have been referred to above. I would therefore, hold that the terms and conditions given on the back of the rent receipt Annexure A are not binding on `the appellants, and they do not constitute a valid contract or agreement-between the parties.
7: The appellants are therefore bound by the general practice of paying rent of each month in the following month.
8. There is no proof that the appellants tendered the rent in person and in time and the respondent refused to receive it. However, it is all admitted position that the rent for the period from Jan. 1983 to May 1983 was tendered by money order which was despatched on 10th March 1983. Since the rent for Jan. 1983 became due on 10th Feb. And so on and since a tenant may tender the rent due within 60 days of it having become due, the rent for the disputed period could have been paid by the appellants even upto 10th April 1983. As the- facts stand, this rent was tendered on 10th March 1983 and this tender was not only for the disputed period but it also included advance payment for the period ending May 1983. The respondent admits in his cross-examination having refused to accept the money order. During course of arguments, it was pleaded in defence of the refusal to receive the money order that in accordance With the terms and conditions printed on the back of the rent receipt the appellants were bound to pay an additional amount of 10% of the rent by way of surcharge and since this surcharge was not sent through money order, the same was refused.
Firstly, a levy of surcharge on the rent is not warranted under the law, and, secondly, the rent tendered through the money order has for an amount of Rs.1,000 whereas on the date when the money order was sent an amount of Rs.000 only was due and payable by way of rent and the respondent could adjust the additional amount towards surcharge and intimate the appellants accordingly. In any case, there was no justification for the refusal of the rent sent through money order. The tender of the rent through money order was proper and within time and under the circumstances it has not been established that the appellants had committed default, in the payment of rent. Findings of the learned Rent Controller on issue No.3 are therefore set aside.
9. As a result this appeal succeeds and the ejectment petition stands dismissed. Under the circumstances the parties arc left to bear their own costs.