1. ' SAJJAD ALI SHAH, J.---Leave was granted in this appeal to consider contentions as follows:-
(1) Whether ejectment application should have been dismissed as non-maintainable for the reason that it was filed against Ibrahim s/o Hussain Ali, who has nothing to do with tenant and tenement?
(2) On the plea of default, details of payment of rent given in written statement and affdavit of tenant and not challenged in cross-examination, should have been deemed to be admitted justifying finding of no default.
2. ' Briefly stated the relevant facts are that landlady Mst. Tahira Begum filed ejectment application under section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959, against her tenant, namely, Ibrahim s/o Hussain Ali, on the ground of default for non-payment of rent from 1-1-1971 to 31-8-1971 at the rate of Rs,125 per month which was registered as Rent Case No,2345 of 1971 in the Court of VIth Civil Judge and Rent Controller, Karachi. Address of tenant mentioned in the title of ejectment application is that he is carrying on business in Shop No,423-C, as Home Comforts, Central Commercial Area, P.E.C.H. Society, Karachi.
3. ' Written statement was filed on 7-12-1971 not by Ibrahim son of Hussain All named tenant in ejectment application but by Saleem son of A. Hussain showing himself as partner of M/s. Home Comforts. In the title of written statement against opponent in place of Ibrahim son of Hussain All is mentioned M/s. Home Comforts. In paragraph 2 of written statement it is stated that M/s. Home Comforts, a partnership firm, consisting of Saleem A. Hussain and Feroze A. Hussain is tenant of applicant (landlady) of premises in question and applicant with ulterior motives has described real tenant as "Ibrahim s/o Hussain Ali, carrying on business in Shop No,423-C, as Home Comforts". In paragraph 3 it is mentioned that M/s. Home Comforts is tenant since 1962 from the days of previous landlord from whom landlady purchased property in 1969. Landlady made applications to Martial Law Authorities for increase of rent. In paragraph 4 details arc given claiming that rent had been paid regularly by M/s. Home Comforts and allegation of default is denied. Averment is made in the written statement that rent for all 8 months from 1-1-1971' to 31-8-1971 has been paid by cash and by cheques, particulars of 'which have been given. Claim is made that landlady refused to accept money order sent to her as rent for months of August and September, 1971.
4. ' During the pendency of ejectment case landlady Mst. Tahira Begum expired and her L.Rs, were brought on the record. In evidence affidavit was' filed by Mirza Khalid Rashid Baig who is one of the L.Rs, of deceased landlady, it is stated that tenant is Ibrahim son of Hussain Ali and written statement is filed by M/s. Home Comforts who are not tenants of the demised premises. In paragraph 7 it is stated that opponent Ibrahim appeared in the Court once and thereafter remained absent. Deponent was cross-examined in the Court -nd he stuck to his claim that M/s. Home Comforts are not the tenants of premises in dispute but they are in occupation of another space bearing No,420-C. He also reiterated that there was default from 1-1-1970 and no rent was paid and accepted thereafter. Attempt was made to have a receipt admitted through this witness in support of the claim that rent was accepted from M/s. Home Comforts by landlady. This witness denied signature on Exh.1/6 to be of his mother. There is another receipt also but it was not shown to this witness, nor any mention is made about it by him in the cross-examination.
5. ' On behalf of M/s. Home Comforts affidavit of evidence was filed by Mehboob son of Abdul Hussain. He stated in paragraph 2 that M/s. Home Comforts, a partnership firm, is tenant of the applicants in respect of premises in case for the last more than two decades. He produced some documents relating to the period or previous landlord and acknowledgements of two money orders Exhs.1/6 and 1/7 purporting to show them to have been signed by the landlady. In paragraph 3 it is stated by him that the landlady did not send any notice as was required under section 13-A of West Pakistan Urban Rent Restriction Ordinance, 1959, but intervenor/tenant/M/s. Home comforts started paying rent to the new landlady on the basis of letter of attornment/letter of intimation sent by previous landlord Mr. Murad Rajab All Hemani. In paragraph 4 he has mentioned payment by cheque and has produced some counterfoils. In paragraph 5 he has stated that he did not know any Ibrabim son of Hussain Ali, who was ever partner of M/s. Home Comforts. Mehboob son of A.
6. Hussain was cross-examined on 17-3-1984. He admitted that 8 years back Saleem A. Hussain and Feroze A. Hussain left partnership which is not yet registered and he alone was running the business. He stated that he made no application to the Court to implead him as a party in this case. He did not inform the landlord about his occupation of the premises in place of previous partners. He admitted that business of M/s. Home Comforts was being carried in 424-C, P.E.C.H.
7. Society, Karachi, but to the extent of correspondence only. He admitted that Saleem and Feroze are his real brothers. He denied a suggestion that he removed intervening wall.
8. ' After appraisement of evidence Rent Controller gave finding vide order dated 24-9-1984 that since M/s. Home Comforts have filed written statement in which they have admitted that they are tenants of the demised premises and not Ibrahim, hence application of ejectment is maintainable against them. So far default is concerned it is held by the Rent Controller that rent receipt dated 24-10-1970 Exh.1/6 shows that rent of Rs,250 being arrears for two months, October and November, 1970, was paid to Mst. Tahira Begum. For the period of default from 1-1-1971 to 31-8-1971, some counterfoils of cheques have been produced as exhibit intervenor 1/8 to 1/11. These counterfoils of cheques are produced without payment certificates of the concerned bank, which is not conclusive proof of payment of rent. It is duty of the tenant to prove with conclusive evidence that he has not defaulted particularly when relationship of landlord and tenant is called in question. In such circumstances learned Rent Controller held that M/s. Home Comforts claiming to be tenants have failed to satisfy the Court that default is not committed.
9. ' Against the order of Rent Controller granting ejectment on the ground of default appeal was taken to the High Court where it was dismissed on the ground that default has been proved. Following paragraph from the judgment of the High Court, which is pertinent in nature, is reproduced hereunder:-- "The default has been proved and there exists relationship and the Rent Controller in Issue No,1, has clearly come to the conclusion on this point and this proposition has also not been denied by both the counsel appearing in this Court but the only contention of the learned counsel of the appellant is that as Ibrahim was wrongly impleaded as a party, therefore, the application is not maintainable.
10. This I fear, I cannot accept in the circumstances when on the basis of the evidence and admission on the part of Home Comforts, it is admitted that they are tenants and have been paying the rent and the Rent Controller considered their pleadings in the case and rightly came to the conclusion that default has been committed."
11. ' In this appeal before us also Mr. Suleman Kassam, Advocate for appellant, contended vehemently that ejectment application filed against Ibrahim son of Hussain Ali was not maintainable for the reason that said Ibrahim son of Hussain Ali was neither tenant nor had anything to do with tenement hence ejectment application should have been dismissed. Thereafter fresh ejectment application should have been filed against M/s. Home Comforts as tenant. Contention is untenable for the reason that at the very outset of the ejectment proceedings when written statement was filed such objection was not raised that ejectment application should be dismissed as non- maintainable simply for the reason that Ibrahim son of Hussain Ali was not tenant but positive assertion was made in the written statement that M/s. Home Comforts were the tenant and not only that but stand was taken that default of 8 months in the payment of rent was not committed as alleged against Ibrahim son of Hussain Ali in the application for eviction and proper explanation was given in details as to how rent was paid by M/s. Home Comforts for the period of default. In the evidence also attempt was made to prove that there was no default and rent was paid to the landlady. In such circumstances it was rightly held by the learned Rent Controller that the tenancy is admitted by Home Comforts and default'is proved against them. No person can be allowed to approbate and reprobate in the same breath. So far as the other contention of appellants is concerned that on the plea of default, details of payment of rent given in written statement and affidavit of tenant which were not challenged in the cross, should have been deemed to be admitted justifying finding of no default is concerned, we would like to observe that this is a finding of fact in respect of which findings of two Courts below are concurrent and against the appellant.
12. Reasons advanced by the two Courts below in support of the finding are cogent and convincing with which we agree. There is no merit in this appeal which is hereby dismissed.