' This appeal at the instance of tenant arises from the Order of the learned VIIIth Senior Civil Judge/Rent Controller, Karachi South, dated 27th September, 1986, thereby allowing the application for eviction of the appellant from Plot No,64/1, measuring 2,051 square yards, Nishtar Road, Karachi, hereinafter called ("the plot in question") on the grounds of subletting and default in payment of rent.
' The relevant facts, briefly stated, are these. On 8th August, 1984 the respondent filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979 (hereinafter called the Ordinance") against the appellants stating, inter alia, that he is one of the legal representatives of Seth Ebrahim Essaji Antria, who died on 14-5-1970, leaving behind him several legal heirs including him (the respondent), that he, vide Agreement dated 15-10-1949, had let out the plot in question to one Rahim Bux at a monthly rent of Rs,300. One Rahim Bux then sublet the plot in question to the appellant No,1 (Qadri Brothers Foundary and Works) in contravention of agreement and law, that Rahim Bux failed to pay the rent since June, 1977. The appellant No,1 was sending the rent through cheques in the name of deceased Ebrahimji and as such they were not encashed, that the respondent as well as the other legal representatives of the deceased Ebrahimji Esaji Antria required the plot in question in good faith for their own occupation and use for storing their merchandize. They were suffering losses and undergoing great hardship and inconvenience due to lack of suitable space for storing their merchandize and boosting their sales. On behalf of the L.Rs of the deceased Ebrahimji Essaji Antria, a legal notice dated 5th February, 1984 was also sent to the appellant No,1 calling upon it to vacate the plot in question on the expiry of 30 days of the receipt thereof. The appellant No,1 failed to comply with the said notice and did not vacate the plot in question. The appellants also failed to pay rent w,e,f. 1st June, 1977 to 31st July, 1984 (86 months) @ 300 p.m. Amounting to Rs,25,800 and as such they were liable to be evicted on this ground also.
3. The appellants contested the said proceedings by filing a joint written statement. They admitted the relationship of landlord and tenant between the deceased Essaji Ebrahimji Antria and the appellant No,1. They stated that appellant No,1 is a family firm. Even the deceased Rahim Bux used to conduct his business in the name and style of Qadri Brothers and Foundary Works. After his death his heirs were also carrying the business in the said name and style. Even in early years of the 'tenancy, when the landlord used to issue receipts, they were issued in the name of the appellant No,1. The payments were always made to the landlord through cheques of the appellant No,1. The appellants claimed to have no knowledge of the death of Seth Ebrahimji Essaji Antria and one of his L.Rs, named Shaukat Hussain. It was also pleaded that the appellants were neither served with notice under section 18 of the Sindh Rented Premise, Ordinance, 1979, nor were they ever informed about the change of ownership. It was further asserted that the landlords were called upon to supply a list of the L.Rs of deceased Antria and to inform if some L.Rs, had been authorised to receive rent. The respondents failed to comply with the above demand. In short, the allegations of default, subletting and personal bona fide need were denied. It was also asserted that the plea of personal requirement was male fide and based on no evidence.
5. The respondent filed his own affidavit-in-evidence, whereas on behalf of appellants, the affidavit-in-evidence of one Muhammad Lateef, attorney of all the legal heirs of late Rahim Bux and Manager of appellant No,1 was filed. The learned Rent Controller framed the following issues:-
(1) Whether the opponent No,1 has sublet the premises to opponent No,2?
(2) Whether the opponents have failed to pay rent and had thus committed default in payment of rent in terms of section 15 of the Sindh Rented Premises Ord., 1979?
(3) Whether the applicant requires the premises in good faith for his own occupation and use?
(4) What should the order be?
6. The learned Rent Controller answered the issues Nos.1 and 2 in the affirmative and issue No,3 in the negative. Consequently, he allowed the ejectment application as stated above. Hence this appeal at the instance of tenant.
7. Having heard the arguments of Mr. Makhdoom Ali Khan, Advocate on behalf of appellants and Mr. Badrudduja, Advocate for the respondent, at sufficient length, I found no merit in this appeal and dismissed it by a short order, dated 20th February, 1990, I proceed to record my reasons therefor. Making his submissions on the issue of subletting, the counsel for the appellants contended that the plot in question was taken on rent by deceased Rehim Bux Qadri in the name of Qadri Brothers. After his death, the name of the concern was changed from Qadri Brothers to `Qadri Brothers and Foundary Works Shop.' The plot in question was taken for business purpose in the year 1951 and ever since then the payment of rent was made through cheques of Qadri Brothers. Upon the death of Rahim Bux Qadri, his major L.Rs were joined as partners and the minor L.Rs were admitted to the benefit of partnership. In short, the learned counsel for the appellant submitted that the plea of subletting was wholly malicious. The firm of Qadri Brothers was registered as far as back as July 30, 1960 and right from that time till 17th July, 1977 rent was tendered through cheques of Qadri Brothers which was accepted by the landlords.
8. It was, on the other hand, contended by Mr. Badrudduja, learned counsel for respondent that in paragraph 1 of the written statement, it is stated that Rahim Bux Qadri always conducted his business in the name and style of Qadri Brothers and Foundary Works, and hence it is admitted by the appellants that it was a sole proprietary concern. It was, later on, pleaded in paragraph 5 of written statement that Rahim Bux Qadri right from the beginning carried on his business in conjuction with his family in the form of a family firm in the name and style of Qadri Brothers and Foundary Works. The respondent Masood Ahmed Antria, in paragraph 2 of his affidavit deposed that Rahim Bux was the lessee of the plot in question. During his cross-examination it was suggested that since the inception of tenancy cheques were sent towards rent by Qadri Brothers and not by Qadri Brothers Foundary and Works. In paragraph 10 of his affidavit, he deposed that Qadri Brothers was not a family firm or concern. It was a proprietary firm of Rahim Bux, who always mentioned with his name "Proprietor" of Qadri Brothers. Likewise, in paragraph 11 of his affidavit, it is stated that the'rent was received in the name of Qadri Brothers when the tenant Rahim Bux was alive and he was sole properietor of Qadri Brothers. He then submitted that in the title of 1st appeal 6 of 1960 (Ex. X-11) Rahim Bux, respondent was shown as Proprietor of Qadri Brothers Foundary and Work Shop. There was no cross-examination done in respect of these exhibits and hence it turned out to be an admitted fact that Rahim Bux was the sole proprietor of the business carried on by him in the name of proprietary concern. He also invited my attention to Ex.X-8 and Ex.X-9, which are the copies of application for bringing the L.Rs, of Ebrahimji Essaji Antria filed in Rent Case No,704/67 in the Court of VIIIth Rent Controller by the L.Rs, of Rahim Bux Qadri. It is proved by these documents that L.Rs, of deceased Rahim Bux Qadri already knew that Ebrahimji Antria had died and he was succeeded by the L.Rs, whose names are given in these applications. Mr. Badrudduja, therefore, urged that the plea taken in the written statement that the appellants did not know about the death of Ebrahimji Essaji Antria and the names of his L.Rs, is absolutely false. He then referred to Ex.112, which is Certificate of Registration regarding Qadri Brothers issued by the Registrar of Firms, Karachi on 12-6-1966, to contend that the firm Qadri Brothers came into existence on 15-10-1951. He then referred to Ex.113 which is also a certificate issued by Registrar of firm in respect of Qadri Brothers and Foundary Works, which was formed on 1-7-1980 as a partnership firm, through Partnership Deed, dated 1st July, 1980 (Ex. 114). He also invited my attention to several other documents prevalent on record to urge that the plot in question was let out to an individual whereas it is now occupied by a firm and hence it was a clear case of subletting inasmuch as a firm is a different entity than the individual partners. In respect of his contention he placed reliance on the authorities reported in P.L D 1984 SC 351 and PLD 1983 Karachi 168.
9. After hearing the arguments of learned counsel for parties and perusal of the documents referred to above, I am clearly of the opinion that the learned Rent Controller has committed no error in holding it to be a case of subletting, for the following reason: "The premises, therefore, is being used by a partnership firm since 1980. Therefore, there is clear subletting by the opponent."
' Assailing, the impugned order on the issue of default, it was contended by Mr. Makhdoom Ali Khan that there was no wilful default committed in payment of rent by the appellants. He submitted that the finding of Rent Controller to the effect that tendering of rent by cheque is not a valid tender is erroneous in law, in the context of the facts of this case inasmuch or right from the inception, the rent was being paid through cheques by the appellants and the landlord was accepting the same.
He also emphasised that the learned Rent Controller has erred in holding that the respondents were justified in not encashing the cheques tendered by the Qadri Brothers, after it had become a partnership. In his submission, Qadri Brothers was registered on 30th July, 1960 and right from that date onward till 17th June, 1977 the rent was tendered by the firm of Qadri Brothers through cheques and it was accepted by the landlord. He also contended with vehemence that the learned Rent Controller was wrong in holding that the respondent was within his right to reject cheques as subletting had taken place, consequent upon the registration of the firm. According to him, there was no such plea taken by the respondent in the ejectment application. The case as pleaded in the ejectment application was that the cheques were not accepted as they were sent in the name of dead person. The finding thus recorded by the learned Rent Controller was patently beyond the pleadings. In support of his case, the learned counsel for the appellants placed reliance on the authorities reported in PLD 1980 SC 298, 1983 CLC 346, 1982 CLC 1847, PLD 1967 SC 530, PLD 1987 SC 1313.
10. It was, on the other hand, submitted by Mr. Badrudduja Khan learned counsel for respondent that the remittance of rent in the name of dead person was no remittance in the eye of law. He drew my attention to the above-referred documents, viz., Exs.8, 9, 10 and 11 to contend that it was well within the knowledge of the appellants that the original owner Ebrahimji Essaji Antria had died on 14-5-1970 leaving behind several heirs including the respondent. The mere fact that cheques were accepted upto 1977 was of no material effect nor did it create a relationship of landlord and tenant between the parties. The appellant, vide their advocate's letter (Ex.X-4), expressed their willingness to deposit the rent in the Court of Rent Controller under section 10 of Sindh Rented Premises Ordinance, 1979, yet no deposit was made nor any pay-order was sent to the respondent or any other co-owner of the plot in question. It was thus a clear case of default in payment of rent.
Lastly, the counsel for the respondent urged that even after the filing of the ejectment application, no rent was deposited by the heirs of deceased Rahim Bux in Court. The rent for the months of May to August, 1984 was remitted on 19th September, 1984 and by that time there had been a default of payment of rent for the months of May and June, 1984. No rent was at all paid for the period from April, 1977 to April, 1984.
11. I have given my due consideration to the above-noted submissions made by the learned counsel for the parties and I am clearly of the view that it is obviously a case of default in payment of rent not only of months but of years. I have already held above that the appellants knew about the death of Ebrahimji Essaji Antria, the original owner and hence the remittance of rent in the name of a deceased person through cheques, even if it is for the sake of arguments assumed to be proper, was no payment in the eye of law. In this view of the matter, there is no escape from the conclusion that the learned Rent Controller has also decided this issue rightly in the affirmative and no legitimate objections can be taken to his impugned order in this behalf.
12. The learned counsel for the respondent also attempted to argue by way of cross-objection that the case of personal bona fide requirement was also established on record. I am, however, of the opinion that the impugned order of the learned Rent Controller suffers from no infirmity in respect of the issue of personal need as well. The objection of the learned counsel for respondent is, therefore, overruled as being without substance.
13. In the result, the appeal fails and is hereby dismissed. I would, however, allow the appellants six months' time to vacate the premises.