' This appeal under section 21 of the Sindh Rented Premises Ordinance, 1979, is filed against the order dated 28-10-1987, passed by Mr. Zafar Ahmad Khan Sherwani Vth Senior Civil Judge and Rent Controller (West) Karachi, by which he directed the eviction of the appellant from the disputed premises within a period of 60 days.
2. The respondent, a partnership firm is the owner/landlord of Plots Nos.M-II/F-160 and 161, Block 'B', Shershah Colony, Karachi and the godowns constructed thereon. The appellant, a company incorporated under the Companies Ordinance, 1984, is the tenant of one of the godowns constructed on the above plot at a monthly rent of Rs,1,575. It is alleged that the appellant taking undue advantage of a dispute between the respondent and the Income Tax Department did not pay rent from the month of October, 1984, and intimated the respondent vide letter dated 30-9- 1985 that the rent for the period from October, 1984 to December, 1985, was tendered to Recovery Officer/I.T.O., Circle I, West Zone, Karachi, in response to a notice issued by him under section 92 of the Income Tax Ordinance, 1979. The dispute between the respondent and the Income Tax Department was, however, resolved on 15-5-1985 and consequently the notice issued to the appellant under section 92 of the Income Tax Ordinance, 1979, was recalled. The Recovery Officer also informed the respondent that the appellant had not paid/tendered rent for the period from January, 1985, and onwards. The appellant-company was confronted with this position through letter dated 10-9-1986, but with no result. Accordingly, on 6-10-1986, the respondent filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979, seeking the ejectment of the appellant on the ground of default in payment of rent.
3. The appellant has controverted the allegations based on facts. According to the case pleaded on behalf of the company the respondent recovered the rent on misrepresentation. The case of the appellant in main is that M/s. Haji Muhammad Rafique & Co. To whom the godown originally belonged are still owners of the same and the rent was being paid regularly to them. In short the appellant has disputed the relationship of landlord and tenant between the parties.
4. The pleadings of the parties gave rise to the following issues:--
(i) Whether there exists relationship of landlord and tenant in between the parties?
(ii) Whether the opponents have committed default in payment of rent?
(iii) What should the order be?
5. The respondent examined one of its partners, namely, Abdul Qadeer (P.W. 1), and Abdul Latecf (P.W. 2), one of the partners of M/s. Haji Muhammad Rafique & Co., previous owner of the premises.
The affidavit of Moosa, the Manager of appellant company was filed, but he did not appear before the Rent Controller for the purpose of cross-examination in spite of repeated opportunities and consequently the side was closed.
6. On the assessm ent of evidence available on record, the learned Rent Controller decided all the issues against the appellant and consequently allowed the application for ejectment. It is in these circumstances that the present appeal has been filed.
7. I have heard Mr. K.B. Bhutto, learned counsel for the appellant and Mr. S.A. Majid, learned counsel for the respondent. I have also gone through the record of this case carefully.
8. The perusal of the record shows that Plots Nos. M-II/F-160 and 161, Block 'B', Shershah Colony, Karachi and the godowns including the disputed one constructed thereon originally belonged to M/s. Haji Muhammad Rafique & Co., who had sold this property to the present respondent. On 1410- 1981, the respondent served the appellant with a notice under section 18 of the Sindh Rented Premises Ordinance, 1979, (Exh. A/2) intimating the change of ownership. This notice was acknowledged by Mr. A. Aziz Khan, Advocate on behalf of appellant (Exh. A/3), in which it was stated:-- "Messrs Haji Muhammad Rafiq & Company, previous owner of the godown premises No, M-II. 160- 161, 'B' Block, Shershah, Karachi, vide their letter of 10th February, 1980, though did inform my clients that they had sold the subject godown premises to your clients, they, i.e, Messrs Haji Muhammad Rafiq and Company did not give the date on which the sale transaction had taken place "
10. The respondent replied (Exh. A/3) through their Advocate on 20th December, 1981 (Exh. A/4) intimating the appellant to inspect the documents of title in the office on any working day and it was thereafter that the appellant accepted the respondent as their landlord. The record also shows that in the meanwhile a dispute arose between the respondent and the Income Tax Department and the appellant was served with a notice under section 92 of the Income Tax Ordinance, 1979, and in compliance thereof the appellant claimed to have made the following payments to Recovery Officer -- Income Tax Officer, Circle I, West Zone, Karachi:-
(i) 31-10- 1984Cheque No.034287 on the Chartered BankPeriod October toDecember, 1984.Rs.4,725
(ii) 7-1-1985Cheque No.697031 on MuslimCommercial BankJanuary, 1985 to December, 1985Rs.18,900.
' This dispute was, however, settled on 15-5-1985 and thereafter the respondent came to know through (Exhs. A/7 and A/8) that the appellant had only paid Rs,4,725 towards rent up to December, 1984, and the amount of Rs,18,900 said to have been paid by them, remained unpaid. It was in these circumstances that the appellant was served with a notice dated 10-9-1986 (EA. A/10) calling upon them to pay rent from 1-1-1985, but with no result.
10. Abdul Qadeer (P.W. 1), one of the partners of the respondent firm has testified the above facts. In cross-examination nothing has been elicited to detract the value of his testimony. The respondent also examined Abdul Latif (P.W. 2), one of the partners of M/s. H.M. Rafique & Co., the previous owners of this property and he has testified that they had not contacted the appellant at any time after the sale of the property to respondent. He has made it clear that they do not dispute the title of the respondent nor have ever asked for the rent from the appellant. He is a witness of truth and completely an independent person. He gave an account which is untarnished by exaggerations.
11. The evidence of Abdul Qadeer (P.W. 1), and Abdul Latif (P.W. 2), proves beyond any shadow of doubt that the appellant-company was in arrears from 1-1-1985. In rebuttal the appellant led no evidence. Moosa, whose affidavit was filed by the appellant did not appear before the Rent Controller for cross-examination for a period of about six months, when ultimately on 10-10-1987 the side of the appellant was closed. No effort was made to examine this witness on commission or to file affidavit of any other person, if he was not in a position to appear before the Court due to illness.
12. Article 115 of the Qanun-e-Shahadat, 1984, embodies the principle of estoppel arising from the contract of tenancy. It is based upon a healthy and salutary principle of law and justice that a tenant who could not have got possession but for his contract of tenancy admitting the right of the landlord should not be allowed to launch his landlord in some inequitable situation taking undue advantage of the possession that he got and probable defect in the title of his landlord (Field's Law of Evidence, 10th Edition).
13. A point which was touched upon during arguments may now be dealt with. It is contended on behalf of the appellant that M/s. Haji Abdul Razzak & Co., not being a registered firm could not file application for ejectment in view of the bar contained in subsection (3) of section 69 of the Partnership Act, 1932. This objection was not taken by the appellant in their written-statement filed on 11-12-1986. The question whether a partnership is registered or not, is a mixed question of facts and law and to permit it to be raised for the first time in appeal and that too during the course of arguments, would not only take the respondent by surprise and cause prejudice, but would work manifest injustice.
14. However, the case of Cooperative Development Funds and Projects through its Project Manager, Karachi v. Glimmer Textile Printing Industries, Karachi, reported in PLD 1976 Kar. 808, provides a complete answer to the objection raised on behalf of appellant, wherein it was held by MA. Rashid, J. (as he then was) that provisions of section 69 of the Partnership Act, 1932, do not apply to proceedings before the Rent Controller.
15. In view of the above discussion the appeal has got no merits and is dismissed with costs. The appellant is, however, allowed two months' time to vacate the demised premises.