' Through present petition the concurrent decisions delivered by 6th Senior Civil Judge/Rent Controller, Karachi (East) and District Judge, Karachi (East) in Rent Case No.248 of 1996 and Rent Appeal No.461 of 2001 on 17-7-1998 and 16-12-2002 respectively have been assailed.
2. Briefly, the facts are that in April, 1995 respondent Mrs. Yasmin Carim occupied shops hearing Nos.3 and 4 situated on the ground floor of the building constructed on Plots Nos.317 and 318, Central Commercial Area, Allama Iqbal Road, P.E.C.H.S., Karachi (hereinafter referred to as "the shops") as tenant. The rate of rent was Rs.1500 per month each shop. Such tenancy agreement was executed on 19-6-1995 wherein it was expressly mentioned that Mrs. Yasmin Carim, the tenant, had paid Rs.9,000 to Mst. Malka, the landlord, as rent for the months of April, May and June, 1995. That future rent from July, 1995 was to be paid by the 10th of calendar month in advance. According to the agreement the payment was to be made by depositing the rent in petitioner/landlord's PLS Account No.60055-5, Habib Bank (Pvt.) Ltd., Shah Faisal Colony-I Branch, Karachi through respondent/tenant's banker namely Deutsche Bank Limited, I. I. Chundrigar Road, Karachi.
According to record, the following deposits were made in the above mentioned account of the landlord from the account of Messrs (Pvt.) Ltd.:-- {{TABLE}} Date Ace-Color Services Amount 6-8-2003 Rs.1,500 17-9-1995 Rs.1,500 23-9-1995 Rs .3 ,000 5-10-1995 Rs.3,000 Total: Rs.9,000 {{TABLE}}
3. As the deposits were made from the account of Messrs Ace-Color Services (Pvt.) Ltd. The landlady served Deutsche Bank Limited with a notice dated 28-1-1996 directing them not to deposit any amount in her account from the account of Messrs Ace-Color Services (Pvt.) Ltd. As they were strangers to her. With the notice she also dispatched cheque of Rs.9,000 to them. Said cheque was, however, sent back to the landlord through letter dated 12-2-1996. After that, under the directions from the landlord, her bank declined to accept the amount sent through the banker of the tenant.
Ultimately she (landlord) closed her account.
4. The tenant then deposited the rent for the months from October, 1995 to June, 1996 with the Rent Controller on 20-12-1995 in Miscellaneous Rent Case No.694 of 1995. Thereafter also she deposited rent from July, 1996 to December, 1996 in the same rent case.
5. On 15-5-1996 the petitioner/ landlord filed rent case mentioned above for ejectment of the tenant on the ground of default in payment of rent with effect from July, 1995 and subletting the premises to Messrs Ace-Color Services (Pvt.) Ltd.
6. In her written statement the tenant/respondent denied the commission of default in payment of rent and subletting of the shop. She pleaded that in fact she had paid the rent of four months i.e. From April to July, 1995 at the time of signing the agreement on 6-7-1995. She pleaded that the agreement was prepared on 29-6-1995 but in fact it was signed on 6-7-1995 when she paid cash Rs.7,00,000 as ''Pagri" and Rs.12,000 as rent for four months.
7. The Rent Controller dismissed the rent case holding that the tenant/respondent had neither sublet the shop nor committed default in payment of rent. The appeal against that judgment dated 17-7-1998 was dismissed by the learned District Judge, Karachi (East) on 16-12-2002.
8. While arguing the petition, learned counsel for the petitioner contended that although the serious controversy between the parties was regarding the amount of rent paid by the tenant to the landlord at the time f tenancy agreement but the two Courts below did not advert to the evidence of the parties in that respect. He referred to the evidence on that point stating that the tenancy, agreement produced in evidence contains clearly that the tenant/respondent paid the rent of three months i.e. April, May and June, 1995 in advance and future monthly rent he had to pay in advance by 10th of each calendar month. That the tenant/respondent did not pay the rent for July, 1995 at all. The rent for the months of August to October, 1995 was credited in the Bank of the landlord by Ace-Color Services (Pvt.) Ltd. And not by the tenant/respondent. Therefore, it was not valid remission of the rent.
9. The learned Advocate further submitted that in fact tenant Yasmin Carim had inducted Ace- Color Services (Pvt.) Ltd. In the shops without consent of the petitioner landlord and as such she had sublet the shops. He further argued that the findings recorded by the learned two Courts below on the issue relating to the subletting of the shop are against the law settled by the Supreme Court.
He referred to the admission by Yasmin Carim, the tenant/responcient in her evidence that the shops are in use of her partnership firm in which the other partner is her spouse. The learned Advocate further contended that the under tenancy agreement Yasmin Carim was tenant in her personal and individual capacity, therefore, by inducting Ace-Color Services (Pvt.) Ltd. In the shops she is responsible of subletting. In support of his contention he referred to the decision of the Honourable Supreme Court in Manek J. Mobed and another v. Shah Behrarn and others PLD 1974 SC 351 and judgment of this Court in Roshan Ali v. The Standard Insurance Co. Ltd. 1986 CLC 953.
10. The learned Advocate for the respondent No.1 defended the impugned decisions arguing that the learned two Courts below have recorded their findings appreciating the evidence on record in accordance with law, therefore, this Court is not supposed to assess the evidence once again in exercise of its Constitutional jurisdiction. According to him, the evidence on respondent/tenant's side proved that the rent of four months i.e. April to July, 1995 was paid at the time of signing the tenancy agreement. Addressing the question of sublease he contended that under the tenancy agreement, the tenant/respondent could do the business specified therein. The same clause of the agreement does not require her to carry on the business all alone or in partnership. Since the business being run in the shops is according to the terms of the agreement the allegation of subletting the shops is without force and the findings of the two Courts below in that respect are correct.
11. As regards the default in payment of rent the dispute is over the rent for the month of July, 1995.
Although the parties produced evidence on that point but the learned two Courts belcrtv did not advert to that evidence. In fact, the trial Court omitted that aspect whereas the learned Appellate Court mixed the question of the rent for the month of July, 1995 with the rent of other months deposited in the account of petitioner/landlady by Messrs Ace-Color Services (Pvt.) Ltd. It is really strange to note that even the tenant respondent No.1 did not claim to have deposited the rent for the month of July. 1995 yet the learned Appellate Court held that deposits of the rent from the account of Messrs Ace-Color Services (Pvt.) Ltd. Including the rent for the month of July, 1995.
Therefore, the finding was surely based on misreading and non-reading of the evidence on record.
12. The evidence on record, as it is, does not establish the payment of rent for the month of July, 1995 by the tenant/ respondent No. 1 . Both of the parties admit that the tenancy agreement contains a clause that the tenant had made payment of rent for three months i.e. April to June, 1995 at the time of agreement. The other clause of the agreement speaks that it was executed on 29-6-1995. Against that the respondent No. 1/tenant had produced oral evidence that signatures on the agreement were delayed up to 6-7-1995, therefore, she had paid the rent of four months including the month of July, 1995 at the time of signing the agreement but that oral evidence does not carry any weight. Thus the default in payment of the rent for the month of July, 1995 has been established. Additionally the deposits details whereof are shown in Paragraph No.2, show that on 6- 8-2003 and 17-9-1995 also the rent of one shop was deposited and not of both of the shops which was the further default in payment of rent in the light of the terms of the tenancy agreement which required the payment of monthly rent by tenth of the current month.
13. As regards the subletting the two Courts below have recorded finding against the petitioner misreading the evidence and applying wrong principles of appreciation of the evidence. The admission by respondent No.1/tenant Yasmin Carim that business in the shops was being run by Messrs Ace-Color Services (Pvt.) Ltd. Was not taken and appreciated in its true perspective. As Yasmin Carim, the tenant is partner in Messrs Ace-Color Services (Pvt.) Ltd. Both of the Courts below held that she had not parted with the possession of the shops, therefore, was not responsible of subletting them.
14. Although Yasmin Carim was partner in Messrs Ace-Color Services (Pvt.) Ltd. But the tenancy in respect of the shops was in her individual and personal capacity whereas the induction of Messrs Ace-Color Services (Pvt.) Ltd. In the shop legally amounted be parting with the personal possession and as such was subletting. It was also admitted fact that rent for the month of August, September and October, 1995 was deposited in the account of petitioner/landlady by Messrs Ace-Color Services (Pvt.) Ltd. Thus the evidence on record did establish the subletting of the shop. The decisions of the Honourable Supreme Court in the cases Manek J. Mobed and another and of this Court in Roshan Ali (supra) are clear on the point.
15. In view of above the decision of the two Courts below are against the material on record and in contravention of the law laid down by the superior Courts, therefore, not sustainable. Consequently, they are set aside. The respondent No.1 being responsible of default in payment of rent and subletting of the demised shops is liable to eviction. Therefore, rent case of petitioner based on those grounds is accepted. The respondent No.1 is directed to hand over the vacant possession of the shops within 6 months from the date of this judgment subject to deposit of the rent due and the monthly rent of September, 2003 by 10th of November, 2003 and the future rent by the 10th of succeeding calendar month till the expiry of 6 months' period. In case of default to deposit the rent she shall be liable to immediate eviction by the Rent Controller without notice.