IMAM ALI G.KAZI, J.- This appeal has been filed under section 21 of the Sind Rented Premises Ordinance, 1979, against the order passed by the VII Senior Civil Judge/Rent Controller, Karachi (South), on 12-10-1986 in Rent Case No.1187 of 1985. The Rent Controller has ordered the ejectment of the appellants, who are the tenants of the respondents, on the ground of default in payment of rent and subletting. The facts giving rise to the present First Rent Appeal are briefly stated as follows:-
1. Messrs National Bank of Pakistan are the owners of a Building Complex constructed on Plot No. C- 3, Block 8, Kehkashan, Clifton, Karachi. One of its shops bearing No. 8 was It out to Messrs Coffee Shop, Karachi, through an agreement executed by the said bank in favour of the said tenant on 1- 3-19"'". The agreement of tenancy was signed by the Manager, Model Branch, Kehkashan, of the respondents and Msl. Naz Shaikh, Mst. Naseema Shaikh and Mst. Nadra Shaikh, partners of the said firm.
The National Bank of Pakistan filed an application under section 15(2)(ii)& (in;(a)&(c) of the Sind Rented Premises Ordinance, 1979, in the Court of XXVI Senior Civil Judge and Rent Controller, Karachi. Their case was registered as Rent Case No.3347/82 in that Court. This rent application was filed impleading M/s Coffee Shop and its three partners, opponents Nos. 2,3 & 4. Opponents No. 2, 3 & 4 happened to be the partners of M/s Coffee shop at the time agreement of tenancy was executed: The applicants had It out the shop in question to the opponents on payment of Rs.4/- per soft, as rent in addition to certain other charges including the car parking charges. A total area of 612 soft, was It out to them, for which the tenants were liable to pay rent of Rs.2601/- per month.
The tenants instead of occupying the area It out to them took possession of 860 soft, without payment of rent for the extra area.
The applicants filed the application on the grounds of default in payment of rent and subletting the premises in question. On such grounds the applicants claimed eviction of the opponents from the premises.
2. Opponents No. 2, 3 & 4 did not contest the rent application but instead Mst Aroos Saiyeda Raza put in her written statement on behalf of the opponent No. 1 (M/s Coffee House). Through her written statement she claimed to have joined the partnership firm of M/s Coffee Shop after the premises in question were It out to them. Later on, according to her written statement, the original three partners retired from partnership, with the result that she became the sole proprietress of M/s Coffee Shop. The averments made in the rent case were generally denied.
3. The Rent Controller, on the basis of the pleadings of the aforementioned parties, formulated the following issues for the determination of the case;- "(1) Whether opponents are defaulters in payment of rent from April, 1980, to date?
(2) Whether premises in question has been sublet by the opponents 2 to 4 in favour of Mrs. Aroof Saiyeda Raza proprietress of Opponent No. 1?
(3) What should the order be?"
4. The applicants, in the case, examined Abdul Aziz, the general attorney of the National Bank of Pakistan, while the opponents No.2 to 4 (the original partners of the firm) were absent and became ex parte. Mrs. Aroos Saiyeda Raza examined herself and produced a number of documents in support of her case. The Rent Controller, on the basis of evidence and after hearing the applicants arid Mrs. Aroos Saiyeda Raza representing M/s. Coffee Shop, the oponent No. 1 decided the first two issues in affirmative and allowed the application. It is against this judgment that the present appeal has been filed.
5. Mr. Mohammad Akram Wasim, advocate appearing for the appellants (M/s. Coffee Shop through its sole proprietrees, Mrt. Aroos Saiyeda Raza) mainly contended that the learned Rent Controller had wrongly reached the conclusion that Mst. Aroos Saiyeda Raza could not be accepted as the tenant of the premises in dispute as she was inducted in the partnership without the consent of the applicants and as no agreement of tenancy was even exicuted in her favour. He further contended that Mst. Aroos Saiyeda Raza became the sole proprietress of M/s Coffee Shop w.e.f. 16-6-1979 when the other three partners executed a deed of retirement leaving her to be the sole proprietress (Ex.0-8). Since that date, according to him, she has not committed any default in payment of rent, although she continued to pay the rent in lump-sum at intervals which was accepted by the landlords without any protest. He referred to the rent receipts and correspondence on the subject between the parties to substantiate his such stand.
6. Mr. S.A. Waheed Aseem, advocate appearing for respondents, referred to clause 10(c) of the agreement of tenancy whereby the tenants could not assign or part with the possession of the premises or any part thereof without the written consent of the landlord. According to him the possession of the premises in question has been transferred to Mrs. Aroos Saiyeda Raza, a fact not denied by her. He supported the judgment of the Rent Controller passed in the case on both the grounds.
7. The agreement of tenancy executed on 1-3-1977 is on record. According to the facts stated in the recital part of the agreement it is expressly mentioned that M/s Coffee Shop, Karachi, shall be called, The Tenant" which expression shall wherever the context so admits include the person deriving a title under it." It will be thus seen that the tenancy of the premises in dispute was created in favour of M/s Coffee Shop, Karachi, which was to be treated as the tenant and it was further clarified that any person deriving any title over it shall also be taken to be the tenant. In this context it will be appropriate to make a reference to the provision of law made in section 5 of the Sind Rented Premises Ordinance, 1979. Section 5 of the said Ordinance is reproduced as under;-
5. Agreement between landlord and tenant. (1) The agreement by which a landlord lets out any premises to a tenant shall be in writing and if such agreement is not compulsorily registerable under any law for the time being in force, it shall be attested by, signed by, and sealed with the sea!
Of, the Controller within whose jurisdiction the premises is situate or, any Civil Judge or First Class Magistrate.
(2) Where any agreement by which a landlord lets out any premises to a tenant is compulsorily registrable under any law for the time being in force, a certified copy of the registered deed and where the agreement is not so registrable, the original deed duly attested under sub-section (1), shall be produced and accepted in proof of the relationship of the landlord and tenant: Provided that nothing in this section shall affect any agreement between the landlord and tenant immediately before coming into force of this Ordinance."
This provision of law has been especially introduced in the Sind Rented Premises Ordinance, 1979, prescribing the mode of executing agreements of tenancy and proof thereof. In case the agreement is a registered one production of a certified copy of it shall be taken to be sufficient proof of existence of relationship of landlord and tenant. In other cases, where the agreement of tenancy docs not require compulsory registration but is executed in conformity with the provision of subsection (1) of section 5 of the said Ordinance original deed when produced will be accepted as the proof of existence of relationship of landlord and tenant. Proviso to that section saves the agreements- between the landlord and tenant executed prior to the coming into force of the said Ordinance. Such agreements can always be produced to prove the existence of relationship of landlord and tenants and to ascertain the terms of tenancy in the case although it may not have been escotted as provided by section 5(1) of the Ordinance. The agreement of tenancy brought on record of the case clearly shows that the agreement was executed before coming into force of the Ordinance. Agreements executed prior to the enforcement of the said Ordinance will be considered as proof of existence of (he relationship of landlord and tenant and the stipulations made therein, if the saine are not contrary to the provision of the Ordinance, will always be enforced. In the present case, in view of above, the tenancy was granted and conferred on the firm "M/s Coffee Shop", and not in favour of the partners of firm at the relevant time. It, therefore, clearly follows that M/s Coffee Simp itself is to be treated as the tenant of the premises in dispute. It is nobody's case that the trade name of 'M/s Coffee Shop" has been changed and tenancy transferred in favour of some other firm or person. Under such circumstances, irrespective of the fact that Mst. Aroos Saiyeda Raza has, by now, become the sole proprietress of the firm, the tenancy shall continue to be in favour of the firm itself. Since there is; no evidence on record that the firm has been disbanded ordinance and premises sublet to another firm or a person, the finding recorded by the Rent Controller that the premises have been sublet cannot be allowed to stand. Arguments advanced by Mr. S.A. Waheed Aseem, advocate for the respondents, on this point have no force.
On the point of default inpayment of rent the Rent Controller although allowed Mrs. Aroos Sayeda Raza to contest the case without any objection from the other side, he ultimately held her not to be the tenant and therefore not liable for the default committed in payment of rent. According to him, the respondents No.2 to 4 were tenants and they had committed default in payment of rent. Mrs. Aroos Sayeda Raza, as the sole proprietress of M/s Coffee Shop, the tenant of the premises in question, will always be liable for the payment of rent to the landlords. She can only be ordered to be ejected on the ground of non-payment of rent if she is found to have committed default in payment of rent. The Rent Controller did not find her to be the defaulter and therefore her ejectment from the premises Could not have been ordered. The order impugned in this appeal is also bad on that count.
For the foregoing reasons, I set aside the order of the Rent Controller and allow the appeal. The case will be remitted to the Rent Controller to decide if M/s Coffee Shop, through its sole proprietress Mrs. Aroos Sayeda Raza, have committed any default in payment of rent in respect of the premises in question either on the basis of evidence already on record or after recording additional evidence that the parties may be permitted to produce in accordance with law.