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Second Appeal No. 122 of 1981, decided on 21st April, 1982.

‑‑ S. 13 (2) (i) read with Civil Procedure Code (V of 1908), O. XXX, r. 1 (1)‑Rent application against firm‑Rent Controller passing ejectment order against firm (tenant)‑‑Contention that rent application being not competent for rent case against firm cannot be filed=Held, contention devoid of force for if firm can be tenant in law, it may also be sued‑Held further, rent applica tion' if incompetent against firm, appeal by firm also not competent.

Messrs Construction Services (Pak.) v. Ali Hussain F. R. A. No. 49181 fol.

‑‑ S. 13 (6) and Explanation to S. 15 (4) read with Civil Procedure Code (V of 1908), S. 100‑Default in compliance of order under S. 13(6)‑‑Concurrent findings tenant not depositing rent in compliance with order under S. 13(6)‑Contention default beyond control because only partner in K not well and could not deposit rent within time‑Business of firm not closed‑Held, default not justifiable and concurrent findings ox two. Courts on question of non‑compliance of tentative order cannot be interfered with by High Court in second appeal.

Munawar Abbas for Appellant.

Khurshid Anwar Shaikh for Respondent.

Date of hearing : 21st April, 1982.

This is a second appeal against the 'order dated 30th August, 1979 passed in Rent Case No. 198/78 and Rent Appeal No. 578/79 respectively, by the learned First Rent Controller and learned 11nd Additional District Judge at Karachi respectively.

The brief facts leading to the filing of the above appeal are that the respondent filed an ejectment case under section 13 of the late West Pakistan Urban Rent Restriction Ordinance, 1959, inter alia on the ground of default. It seems that the tentative rent order was passed on 4th December, 1978 ordering the appellant to deposit a sum of Rs. 34,680 for the period from March, 1977 to November, 1978 at Rs. 1,600 per month plus Rs. 80 as conservancy charges, within a period of one month.

It is an admitted position that the respondent did not deposit the rent as was ordered. Thereupon, the respondent filed an application under section 13 (6) of the late West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance), which was allowed by the learned Rent Controller by his aforesaid order dated 30th August, 1979 and the appeal filed against the said order was also‑dismissed by the aforesaid order dated 9th July, 1981. The petitioner being aggrieved by the above orders has filed the present second appeal.

2. (a) Mr. Munawar Abbas, learned counsel for the appellant has made the following submissions :‑

(i) That rent application was not competent against the appellant as no rent case can be filed against a firm.

(ii) That even otherwise there was no wilful default in non‑compliance of the tentative ‑rent Order.

(b) Reverting to the first contention of Mr. Munawar Abbas, learned counsel for the appellant that the rent application could not have been filed against a firm, it may be observed that he has drawn my attention to Order XXX, C.P.C. and has submitted that the above provision is only applicable to a suit and not to rent proceedings. In my view, the above contention is devoid of any force. If a firm can be a tenant in law, it must f low from it, that it may also be sued. It may be pointed out that the appellant had not raised any such objection before the learned Rent g Controller. Furthermore, the appeal has been filed by the firm. If the rent application was not competent against the firm, the appeal is also not competent as it has been filed by the appellant firm. In this regard, it may be pertinent to refer to an unreported judgment given' by me in 1.R.A. 479/81, namely Helsrs Construction Service (Pak) v. Mr. A Hussain wherein similar argument was advanced, which was repelled in the following words :‑

"(d) With reference to the third contention that a rent case is to be filed against the partners of a firm and not against the firm itself as the rules applicable to a civil suit cannot be pressed into service in a rent proceeding, it will suffice to observe that the rent case is to be filed against a tenant. A tenant may be a living person or may be a juristic person. A registered firm is a juristic person, which can sue and be sued. In my view the above principle applicable to a civil suit can be pressed into service in a rent proceeding if the tenant is a registered ,firm. It may be pointed out that even an unregistered firm can be sued but cannot sue itself."

I am bound by my own judgment. Furthermore, I see no reason to take different view in the instant case.

(c) As regards the above second contention, it may be stated that it has been candidly conceded by Mr. Munawar Abbas that the rent was deposited on 28th February, 1979 and not within one month from the date of the tentative rent order namely, from 4th December, 1978. However, his contention was that on the date of hearing when the rent order was passed, the learned counsel then appearing for the appellant before the Rent Controller was busy in the High Court and, therefore, could not appear in the rent case. It has been further submitted by him that the learned counsel for the appellant after attending his case in the High Court went back to the District Court and inquired about the progress in the rent case, thereupon, he was told that the case was adjourned to 18th January, 1979 and, that on the latter date he discovered about the passing of the above rent order. Even if I were to accept the above explanation as correct and sufficient to justify the non‑compliance of the tentative rent order prior to 18th January, 1979, it will not make any difference. Admittedly, the appellant did not deposit the arrears of within one month even from the date of acquiring of the knowledge of the passing of the aforesaid tentative rent order. As pointed out hereinabove, according to the learned counsel for the appellant, the appellant' then counsel came to know about the rent order on 18th January, 1979 and factually the rent was deposited on 28th February, 1979. However, Mr. Munawar Abbas has submitted that this default was also beyond the control of the appellant for the reason that the only partner in Karachi was not ‑Well and, therefore, arrangement could not be made for deposit in the above rent within time. But the learned counsel for the appellant was unable to state that because of the illness of one of the partners of the firm, the business was closed down and that no transaction was conducted. The above default is not justifiable. Both the Courts have exercised the discretion properly. The concurrent finding of the two Courts on the question of non‑compliance of the tentative rent order cannot be interfered by this Court in a second appeal unless it is found to be perverse or contrary to the record, which is not the case.

3. For the foregoing reasons, I do not see any merit in the above appeal, and, therefore, it is dismissed but I grant four months' time to the appellant from today on the condition that the appellant shall continue to deposit rent in terms of the Rent Controller's tenative rent order and in case they will commit default, the respondent shall be entitled to file an execution application without waiting for the expiry of the above period of f our months. Furthermore, in case the appellant fail to hand over vacant possession of the expiry of four months, the Rent Controller shall issue writ of ejectment without further notice to the appellant .

K. M. A Appeal dismissed.

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