1. ' By this appeal the appellant has challenged the orders passed by the VIIth Senior Civil Judge/Rent Controller, Karachi (South) on 31-1-1988.
2. ' Briefly the facts are that the present respondent claiming to be owner of Shop No,168 at Saddar Cooperative Market, Karachi had filed the said rent case against the present appellant/tenant on the grounds of default and personal requirement. The present appellant also is said to be tenant in the said shop at the monthly rent of Rs,200 and is alleged to have committed default in payment of rent since 1st January, 1977. The rent case was instituted on 30-5-1983. The appellant/tenant filed his written objections wherein he denied the relationship of landlord and tenant and challenged the maintainability of rent case. The case of the appellant is that the present respondent is not the owner of the said shop and that the said shop had been cancelled and subsequently leased out to the present appellant vide lease agreement dated 26-12-1977 and that he had paid two instalments also. On these pleadings of the parties the following issues were settled by the Rent Controller:
(1) Whether relationship of landlady and tenant exists between the parties?
(2) Whether opponent is defaulter in payment of rent from January, 1977 till date?
(3) Whether applicant requires the shop in question for her personal bona fide use?
(4) Whether opponent is in arrears of rent, if so what is the amount?
(5) What should the order be?
3. ' The present respondent in support of her case filed the affidavit-in-evidence of her son and attorney, namely, Jamil Hussain, who was cross-examined. She also examined Project Director of the Saddar Cooperative Market Mr. Ibrahim Shah, who was also cross-examined. The appellant filed his own affidavit-inevidence and also the affidavits-in-evidence of his witnesses Riazuddin and Noor Ali, all of them were cross-examined. The learned Rent Controller after hearing the arguments of the Advocates of the parties was pleased to pass the impugned order. Being aggrieved the present appellant has preferred this appeal.
4. ' I have heard the learned counsel for the parties. At the very outset it is pointed out by the learned counsel that Issue No,3 was not proved by the present respondent in the lower Court. The learned counsel have agreed that issue No,1 is the main issue and the findings of this issue will have bearing on all other issues. This issue pertains to the existence of relationship of landlord and tenant between the parties. Mr. Muhammad Younus, Advocate for the appellant has submitted that in this case the shop in dispute was originally allotted to one Bashir Muhammad and after his death the same was transferred to Mst. Imtiazi Begum, the widow, by consent of all the legal heirs of the deceased. An agreement of perpetual lease was also executed in favour of the said Imtiazi Begum on 31-3-1969. The said Imtiazi Begum is said to have paid a sum of Rs,3,425 and further sum of Rs,275.01 was also paid by her. This lmtiazi Begum also died on 23-6-1969 and her legal heirs made an application for substitution/transfer of the said shop in the names of the said legal heirs but the Project Manager cancelled the lease of Imtiazi Begum vide his order dated 30-11-1977 and offered the same shop to the present appellant and an agreement of perpetual lease was executed in his favour on 26-12-1977. From this the learned counsel for the appellant has submitted that this agreement of lease holds the field as the same has not been challenged or set aside. He has further submitted that as per terms and conditions of the lease the said shop could not have been rented out to the present appellant by the respondent and, therefore, the very rent case is not maintainable. The learned counsel for the appellant has also referred to the evidence of the parties and submitted-that subsequent setting aside of the order passed by Project Director on 30-11-1977 would not by itself render the agreement of perpetual lease in favour of present appellant as ineffective. He has also referred to the affidavits-inevidence. The learned counsel for the appellant has read cross-examination of the appellant in which appellant has tried to build-up a new case to the effect that he was doing business in this shop since 1970 with Fazal Mehmood, the husband of present respondent as his partner. He has further submitted that the said Fazal Mehmood was a sleeping partner. However, in cross-examination he has stated that he used to pay Rs,200 p.m. To the said Fazal Mehmood. As against this Mr. Abdul Sattar Sheikh, Advocate for the respondent has submitted that admittedly the present appellant had been paying Rs,200 per month to the said Fazal Mehmood, the husband of the present applicant. He has further submitted that the present appellant has nowhere set up a case in his written objection or in affidavit-in-evidence nor any document has been produced by him to substantiate such contention. Learned counsel has further submitted that the attorney of the applicant in his evidence has specifically stated that the applicant had paid the entire dues amounting to Rs,9,359.99 as total price of the shop by receipt dated 9-8-1982 and thus, had acquired the vested right in the shop for all purposes. He has also submitted that consequent upon acquiring lease rights the present applicant served the appellant with a notice dated 28-3-1983 as contemplated under section 18 of the Sindh Rented Premises Ordinance, 1979. He has further submitted that in spite of service of such notice the present appellant did not pay the due rent and, therefore, obviously he has committed default.
5. ' I have considered the above submissions of the learned counsel and also examined the record of the lower Court. The Project Director who has been examined has produced in his evidence a copy of the order passed by the Secretary, Labour Corporation Department, Government of Sindh as Exh.4/A. This order clearly shows that the Project Director had cancelled the allotment of Mst. Imtiazi Begum on her death vide order passed on 30-11-1977 and then allotted the same to the present appellant. The said order of the Secretary has dealt with the case at length and has set aside this order of Project Director by order passed by him on 28th July, 1982. The reason given for setting aside the said order is that the order passed by the Project Director is without jurisdiction as he was not the competent authority to do so. This order of the Secretary has not been challenged by the present appellant and holds the field. The agreement for perpetual lease executed in favour of the present appellant is prior to this order and is a consequence of the order of the cancellation passed by the Project Director on 30-11-1977. Now, when the very order of Project Director which was the basis has been set aside by a competent authority, all consequent acts done or orders passed would be rendered ineffective as held in the case of Yousuf All v. Muhammad Aslam Zia (PLD 1958 SC (Pak.) 104), in this case it was held by their Lordships: "And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded."
6. ' In view of the above principles of law the subsequent agreement of perpetual lease in favour of the present appellant would have no legal force.
7. ' Now, I take-up the other aspect of this case. It is admitted position that this order of Secretary stands in favour of the present respondent and consequently an order was issued by Project Director on 3-1-1983 whereby the said shop has been transferred to the present respondent who is the daughter of deceased Mst. Imtiazi Begum. Thus, the lease stands revived in favour of the present respondent. It is also not denied by the present appellant that the respondent has paid the full price of the said shop which would result in her acquiring of legal rights in the said shop. A copy of the agreement for perpetual lease has been placed on record which shows that paragraphs Nos.12 and 13 of this agreement say: "12. That so long as all the instalments mentioned in clauses (1), (2) and (3) heretofore are not paid, the status of the LESSEE shall be of a LICENSEE and he shall not sublet, transfer or assign his interest to any other person or persons.
13. That the LESSEE shall be entitled to pay all the instalments at any time at his pleasure or discretion with a view to get the lease-deed executed in his favour."
8. ' The contents of the above paragraphs would show that the condition restraining the lessee from subletting, transferring or assigning his interest to any other person is operative, so long as all the instalments as mentioned in clauses (1), (2) and (3) are not paid. In the instant case the attorney of the respondent has specifically stated in his affidavit-in-evidence that all the instalments or the total price of the shop is paid-up vide receipt dated 9-8-1982 (paragraph 13 of the affidavit). In this view of the matter the said prohibitory clause would not be applicable and the present respondent would be within her rights to sublet the said shop. The learned counsel for the appellant has referred to paragraph 15 of this agreement which provides that such subletting would not be without written permission of the lessor i,e, the Project Director and in the present case no such permission has been obtained and thus, the very lease in favour of the present respondent is liable to cancellation. In the first instance the burden to prove this fact was on the appellant but he has not brought any evidence on record to support his contention. However, if the respondent has not obtained any written permission, it would be the matter between the respondent and the Project Director wherein the present appellant has no say. As far as the present appellant is concerned, the relationship stands established in view of the notice served on him under section 18 of the Sindh Rented Premises Ordinance, 1979. The mala fides of the appellant are clear from the reply he has sent to this notice through his Advocate wherein he has asked the respondent to supply him with the copy of the order of the Secretary although he himself was a party and his Advocate Mr. Shamshad Alam Lari had argued the case before the Secretary. Thus, the present appellant had full acknowledge of that order and there is no occasion for him to ask for the copy of the said order.
9. These facts clearly establish the existence of relationship of landlord and tenant and, therefore, the Issue No,1 stands answer in favour of the present respondent.
10. ' As regards Issue No,2 about the default it is an admitted fact that present appellant used to pay Rs,200 per month to Fazal Mehmood the husband of the present respondent. He has not stated in evidence if that amount was towards the share of the partnership. Even -otherwise when a business is done in partnership the payment is made according to the profits earned or where losses are suffered the question of the payment would not arise. No fixed payment can be made to any of the partners unless such agreement is proved. In the present case there is nothing on record to substantiate the above contention of the counsel for the appellant. It is also admitted that after receipt of the notice under section 18 of the Sindh Rented Premises Ordinance, 1979 no rent has been paid. Even after institution of the present rent case no rent was paid by the appellant to the respondent. In these circumstances the appellant is a defaulter in payment of rent. Not only this but for the reason that he had denied the existence of relationship of landlord and tenant, which stands proved in view of the above discussion, the consequent order is that the appellant is liable to be ejected forthwith. Accordingly, I dismiss this appeal with costs but allow sixty (60) days time to the appellant, as granted by the Rent Controller, to hand over vacant possession of the premises to the respondent.