1. ' The abovementioned two appeals are being disposed of by one and the same judgment, as in both the appeals the premises involved and the parties are the same. Similarly they carry common questions of law and facts.
2. ' Appeal No,1000/88 has been filed against the impugned order dated 20-10-1988, whereby learned Vth Senior Civil Judge/Rent Controller, Karachi East allowed Rent Application No,524/87 directing appellant Syed Sardar Hussain Jaffery to hand over vacant possession of the shop in dispute to respondent Dr.Mohammad Ali Khan.
3. ' F.R.A. No, 999/88, has arisen in respect of the same order dated 20-10-1988, passed separately by the same Rent Controller in respect of the same shop in Rent Case No,586/87 whereby the appellants Syed. Sardar Hussain Jaffery and his son Syed Baqar Hussain Jaffery have been directed to hand over the vacant possession of the sme shop in dispute to respondent Dr. Muhammad All Khan.
4. ' At the outset it may be mentioned that the proper course for the learned Rent Controller was to consolidate both the rent applications as the shop in dispute and the parties were the same.
5. Anyhow there appears no miscarriage of justice as both the rent applications were decided on the same day by recording more or less the same separate judgments.
6. ' It appears that the subsequent rent application bearing No,586/87, was filed in respect of the same shop as during the pendency of Rent Application No,524/87 present appellant No,2 i,e,, Syed Baqar Hussain Jaffery filedSuit No,916/87 in the Court of Xth Civil Judge, Karachi for a declaration and injunction in respect of the same shop that he was a tenant therein and the present respondent be restrained from ejecting him otherwise then in due course of law.
7. ' I have heard Mr. Ghulam Muhammad Ibrahim, learned counsel for the appellants in both the rent appeals, as also Mr. Muhammad Zubair Qureshi, learned counsel for the respondents.
8. ' It is an admitted fact that the shop in dispute bearing No,298-C, Block-2, Commercial Area, PECHS, Karachi, was originally rented out in the year 1969 to appellant Syed Sardar Hussain Jaffery father of appellant Syed Baqar Hussain Jaffery. Such rent agreement was duly executed between the parties. It is urged by the appellants that in the year 1976 the tenancy was surrendered by appellant Syed Sardar Hussain Jaffery in favour of appellant Syed Baqar Hussain Jaffery. It is further urged that since the year 1976, up to the month of October, 1985, appellant No,2 had been paying rent through crossed cheques to the landlord. It is further submitted that after 1985, the rent was being paid to the respondent in cash. It is explained that since appellants and the respondent were close relatives, hence appellant No,2 Syed Baqar Hussain Jaffery never demanded receipts in token of the payment of rent from respondent Dr. Muhammad Ali Khan.
9. ' It is urged that there had been no subletting by appellant No,1 in favour of appellant No,2. That since the year 1976 the respondent was in full knowledge of the alleged surrender of tenancy by appellant No,1 in favour of appellant No,2. Furthermore the respondent never objected to the payment of rent by appellant No,2.
10. ' The learned counsel for the appellants strenuously urged that besides payment of rent through cheques, appellant No,2 was also paying electricity bills etc., in respect of the consumption of Electricity in the shop in dispute. Furthermore he also placed reliance on the income-tax assessm ents for different years to show that appellant No,2 was the tenant, and has been carrying on business in the shop in dispute.
11. ' On the point of default, Mr. Ghulam Muhammad Ibrahim, submitted that admittedly there is close relationship between the parties, as such appellant No,2 did not demand the receipts from the respondent in respect of payment of rent in cash after the month of October, 1985. Mr. Ghulam Mohammad Ibrahim has placed reliance on the following authorities on subletting and the default in payment of the rent:-- ' MLD 1986 Karachi 2771, Muhammad Qayyum v. S. Akhtar Hussain Zaidi, PLD 1982 Karachi 28, Muhammad Bux and others v. Ghulam Rasool, 194 CLC (Kar.) 2682, Muhammad Hussain v.
12. Mst.Hatuk, PLD 1979 Karachi 597, Ghulam Muhammad Qureshi v. MRs, Hawabai.
13. ' On the other hand Mr.Zubair Qureshi learned counsel for the respondent submitted that appellant No,2 was the son of appellant No,1. As such the respondent was receiving rent from appellant No,2 in good faith, on the presumption that the rent was being paid by the son on behalf of the father.
14. ' He further submitted that there was not an iota of evidence to show that there was proper surrender of tenancy by appellant No,1 in favour of appellant No,2. There is no indication that such change of tenancy was approved by the landlord, and that there had been fresh agreement of tenancy between the respondent and appellant No,2. As such, according to Mr.Zubair Qureshi, it was a clear case of subletting by appellant No,1 in favour of appellant No,2.
15. ' As regards the default in payment of rent, Mr.Zubair Qureshi submitted that admittedly there was absolutely no evidence to show that the rent was being paid in cash by appellant No,2 or by appellant No,1 to the landlord after the month of October, 1985. He submitted that there was no force in the contention that the appellants were not obtaining receipts for the payment of rent in view of the close relationship between the parties.
16. ' Mr.Zubair Qureshi placed reliance on the following authorities:-- ' 1980 SCM R 506 Abdul Rashid v. Saleh Muhammad, 1982 CLC 1618, Rashid Ahmed v. Khushi Muhammad and 1986 M LD 368 Delhi Fine Art Press v. Mst Salama Begum.
17. ' I have considered the submissions of both the learned counsel in the light of authorities submitted by them and the evidence recorded by the learned lower Court in both the rent applications. The authorities quoted by both the learned counsel lay down general principles of subletting and default of payment of rent. But facts of each case differ and none of the authorities have direct bearing on the present appeal.
18. ' I have come to the conclusion that the contention that the tenancy was surrendered by appellant No,1 in favour of appellant No,2 is not substantiated by the evidence on record. Admittedly in the absence of documentary evidence such as execution of fresh agreement of tenancy, the creation of fresh tenancy cannot be proved. Payment of rent through cheques by the son on behalf of the father in no way creates fresh tenancy in favour of the son. Similarly no such tenancy can be created by payment of electricity bills and submission of the Income Tax Returns. Furthermore it has come on record that appellant No,1 is still in active possession of the shop in dispute and is carrying on his business therein. As such both the allegations of surrendering the tenancy by appellant No,1 to appellant No,2, and that of subletting are not proved.
19. ' The appellants have failed to prove that the payment of rent was being made in cash after the month of October, 1985. The contention, that the receipts for payment of rent were not being demanded by appellant No,2 as a result of close relationship between the parties, does not appeal to reason. As such the allegation of default in payment of rent stands proved.
20. ' As a result of the above discussion, I do not find any force in both the appeals, and the same are hereby dismissed. Parties are to bear their own costs. The appellants are directed to hand over the vacant possession of the shop in dispute to the respondent within two months of the date of this order.