1. ' The facts giving rise to this appeal are that the present respondent No,1 had filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979, hereinafter referred to as the Ordinance against the present appellant and respondents Nos. 2 and 3 for their ejectment being Rent Case No,134 of 1985 (Old Case No,13 of 1984). The rent case was instituted on 9-41984. The case of the applicant is that she is the landlady/owner of a building situate on Plot No,73-D Block No,6, P.E.C.H.S. Nursery Commercial Area Karachi and the respondent No,2 (Nizamuddin) is her tenant in the back portion of the ground floor of the building since the year 1968, present rate of rent being Rs,170 per month. According to the landlady the tenant had to pay electricity charges in addition to the above rent and that rent receipts were being issued in the name of respondent No,2 c/o HNA Furnishers. The landlady also claimed that the said rent was being collected generally by her son. However, it is alleged that the opponents have failed to pay the rent since September, 1983 till March, 1984 (seven months) and also failed to pay electricity charges for the said period. The landlady also took the plea that her sons have come of the age and, therefore, she required the premises for her sons to do their own business therein. The other ground taken by the landlady was that the tenants have caused damage to the premises. The respondent No,2 filed his written statement denying the allegation levelled against him. He took the plea that it is the firm, known as Messrs HNA Furnishers who are the tenants and that all the three opponents were the partners in the firm. He further took the plea that the said firm was not joined as party to the proceedings and, therefore, very rent application was not maintainable. The other two opponents which included the present appellant filed their written statement who also took similar grounds. However, all the opponents in their written statements alleged that a dispute had arisen amongst the three partners (opponents) with regard to their partnership and thus they filed a civil suit in the High Court of Sindh being Suit No,457 of 1983 and that in this suit an order was passed on 2-8-1983 whereby Mr. Abdul Sattar Advocate was appointed as Receiver to take over the properties of the partners firm and discharge their liabilities. They also contended that in that suit the Advocate for the present respondent No,2 was directed to pay a sum of Rs,2,500 to the Receiver for this purpose.
2. It is further the case of the opponents that the Receiver offered the rent to the landlady but she refused to accept the same and, therefore, from March, 1983 the present appellant started depositing the rent in Court in a Miscellaneous Rent Case. The said civil suit No,457 of 1983 was ultimately compromised and disposed of by an order passed on 2-2-1984. The opponents also denied that they caused any damage to the premises and that the landlady and her sons have so many other properties and shops of their own and that they do not require the present premises in good faith for their personal use. On these pleadings of the parties the Rent Controller settled the following issues:
(1) Who is the actual tenant of the applicant?
(2) Whether the opponents have committed default in payment of rent as well as electricity charges? #TBS (3) #TBE Whether the opponents have damaged the case premises and impaired its value and utility?
(4) Whether the applicant requires case premises for herself and her sons' personal bona tide use?
(5) What should the order be?
3. ' The landlady filed affidavit-in-evidence of her sons and attorney, namely, Qamarul Islam, who was cross-examined while the present appellant filed his own affidavit-in-evidence and was cross-examined. The other two opponents i,e, present respondent Nos. 2 and 3 did not give any evidence in the case nor appeared to cross-examine the witness of the landlady. The Rent Controller then after hearing the counsel for the parties passed the impugned order. Being aggrieved, the present appellant has preferred this appeal.
4. ' During the pendency of appeal the appellant expired and his L.Rs, were joined.
5. ' I have heard the learned counsel for the parties. The counsel for the appellant has submitted that issue No,3 was decided against the landlady and that no appeal is filed against that issue.
6. However, he has pressed his submissions with regard to the issues Nos. 1, 2 and 4. Issue Nos. 1 and 2 were taken-up by the Rent Controller jointly and dealt with at length. It may be observed that the case of the appellant and the two co-tenants in their respective written statements is that it is the firm Messrs HNA Furnishers who are the tenants and not the respondent No,2 alone. The evidence produced on the record comprises of counterfoils of the rent receipts issued by the landlady which are DdiA/2 to Exh. A/56 and cover the period from 29-8-1968 to 3-8-1983. All these fifty-five receipts are issued in the name of Nizamuddin, respondent No,2. Of course some of the receipts are in the name of Nizamuddin c/o HNA Furnishers. This does not mean that the tenant is the firm as not a single receipt is issued in the name of the firm HNA Furnishers. The burden to prove this contention was on the appellant and his co-tenants but they have not produced a single receipt or any other document showing that the tenancy was in the name of the firm and not in the name of respondent Nizamuddin. On the contrary the appellant in his cross-examination at one place stated "I had taken the premises on rent in the year 1968". He has also produced a copy of plaint in Suit No,457 of 1983 filed by the appellant which is Exh.O/1. In this plaint in paragraph 2 the appellant stated that since first July, 1969, the plaintiff and the defendant Nos. 2 and 3 started to run the business of manufacturing and supplying of furniture and other allied business under the name and style of Messrs Hafiz Muhammad Hassan and Nizamuddin Furnishers and that thereafter on 30-6-1971 a partnership deed between the plaintiffs and defendants Nos. 2 and 3 (the three opponents in the rent case) who are present appellant and respondents No,2 and 3 was duly executed. In paragraph 4 he further states that this partnership was registered with the Registrar of Firms on 11-10-1971. However, no partnership deed has been produced nor it has been shown if the premises in dispute were incorporated in the assets of the partnership firm. Admittedly the premises in dispute were taken on rent in the year 1968 and the partnership firm was constituted and registered in the year 1971. The rent receipts since the year 1968 stand in the name of Nizamuddin the respondent No,2 and there being nothing on the record to show that this tenancy or the premises were included in the partnership assets, it may be concluded that the 'tenancy was in the name of respondent Nizamuddin and not in the name of the firm. Accordingly in case of non-payment of rent by the tenant Nizamuddin landlady had the right to seek his ejectment or that of any other person claiming under him.
7. ' Now I come to the second aspect of these issues i,e, whether the rent has been duly tendered to the landlady within due time. The case as set up by the tenant is that from 8-8-1983 till 2-2-1984, their suit for dissolution of partnership being Suit No,457 of 1983, was pending in High Court of Sindh and a Receiver had been appointed and that they had paid a sum of Rs, 2,500 to the Receiver for discharging the liabilities of the firm and also that Receiver offered the rent to the landlady but she declined to accept. It may be observed that the appellant has not examined Mr. Abdul Sattar, Advocate, the Receiver appointed in the suit to substantiate his contention that the rent was offered to the landlady and was declined by her. In rent cases where the ground of default is taken by the landlady, the burden is on the tenant to prove that the rent was A duly tendered as required under section 10 of the Ordinance. In the present case the tenants have not been able to substantiate their contention as mentioned above. No efforts were even made by the tenants to examine the said Receiver in support of their contention. It may be observed that the said civil suit terminated on 2-2-1984 when the order was passed on the compromise application. The present rent case was filed by the landlady on 9-4-1984. The appellant has not been able to show if after termination of the civil suit, any effort was made by the appellants to offer the rent to the landlady.
8. Pertinent question was asked from Mr. Abdullah, the learned counsel for the appellant who was also assisted in the Court by one of the LRs of the appellant and he candidly conceded that neither the rent was offered to the landlady personally by the appellant nor the same was tendered through money-order. The learned counsel for the appellant, however, submitted that the rent was deposited in Court in M.R. Case No,977 of 1984 during the month of March, 1984. Even this fact would not help the present appellant as a voluntary deposit of rent in Court in the name of landlady would not be a due tender under section 10 of the Ordinance unless the rent is offered to the landlady and she has refused or avoided to receive the same. In the present case, admittedly the rent was not offered to the landlady and, therefore, mere deposit of, rent in the Court of Rent Controller at a subsequent stage to create a safeguard against the penalty likely to be imposed for non-payment of rent would be of no avail to the tenant. The learned counsel for the appellant has submitted that non-payment of rent during this period was for the reasons beyond the control of the appellant, and therefore, he is not to be penalised for the same. He has placed reliance on a number of cases decided by the superior Courts. In my view the said case-law would not help the present appellant as in the present case it was not due to the reasons beyond the control and power of the appellant or on account of any supernatural act that the rent was not offered to the landlad in due time. He has not been able to explain as to why during this period or even after the disposal of the said civil suit on 2-2-1984 the rent was not offered to the landlady as required under section 10 of the Ordinance. In this view of the matter I am inclined to hold that the tenants have committed default in payment of rent as well as electricity charges and I do not find any reasons to interfere with the findings of the learned Rent Controller on these issues.
9. ' Now I come to issue No,4. It has come from the evidence of landlady's attorney and son Qamarul Islam on the record that the said premises are required for the two sons of landlady, Qamarul Islam and Badrul Islam, to carry on their own business. As against this the' case of the tenants is that they own three other properties' also and that this ground taken by them. For ejectment is not a bona fide ground. The tenants have not been able to bring any evidence on record to show that the landlady or her sons own or possess any other premises. However, a reference may be made to the cross-examination of Qamarul Islam the son and attorney of the landlady who has admitted that he is an Engineer with Pakistan Petroleum Limited and drawing Rs,5,000 as monthly salary. He has also admitted that his other brother Badrul Islam is also in. Service. In these circumstances I am of the view that the respondent No,1 the landlady has not been able to show that she required the premises in dispUte in good faith for her sons to run their business as they are already in lucrative services. I would, therefore, set aside the finding of the Rent Controller on this issue and answer the same against the landlady.
10. ' In view of the above discussion and findings on issues Nosi and 2 to the effect that the default in payment of rent has been committed, I would maintain the eviction order passed by the Rent Controller. This appeal is accordingly dismissed with no order as to costs. The appellant and respondents Nos. 2 and 3 shall hand-over the vacant and peaceful possession of the premises to the respondent No,1 within sixty (60) days from the date of this order.
11. ' Above are the reasons for the short order announced in Court on 16-9-1992.