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First Rent Appeal No.345 of 1984, decided on 7th January, 1987.

--Ss.15, 21 & 22--Ejectment--Service upon firm, held, was to be deemed good service whether all or any of its partners were within or out of country.

--Ss.15, 21 & 22--Ejectment--Execution proceedings--Eviction order against a firm--Appellant one of partners of firm--Contention that as a result of a dispute with his partners he became tenant of owner/ landlady--Appellant failing to produce any tenancy agreement in his support or any document or intimation to the effect that partnership stood dissolved and he became sole proprietor, or any receipt that he was paying rent--Contention of appellant, held, was devoid of force--Appeal against order of ejectment passed against tenant was dismissed in circumstances.

Mirza A.Rashid for Appellants.

Syed Inayat Ali for Respondents.

Date of hearing: 21st December, 1986.

This First Rent Appeal is directed against the order dated 13-3-1984 passed by the Xth Senior Civil Judge/Rent Controller, Karachi whereby he dismissed the application filed by the appellant.

The facts leading to the filing of the above appeal are that the respondent No.1 is the owner/landlady of Khatri Building situated on Plot No. K-4-1-S-19, Gali No.2 Moosa Line, Karachi and the respondent No.2 were the tenants in respect of godown at the monthly rent of Rs.50/-. The respondent No.1 filed eviction application No.824 of 1975 against the respondents No. 2 on the ground of default in payment of rent for the period 1-9-1974. The respondent No.2 filed written statement and resisted the eviction application. The learned Controller after taking into consideration the evidence adduced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties allowed the eviction application vide order dated 9-1-1983 and directed the respondents No.2 to hand over the vacant possession of the disputed premises to the respondent No.1 within one month from the date of the order. As the respondent No.2 did not vacate the disputed premises, the respondent No.1 filed execution application No.11 of 1983. The appellant filed application under section 22 of the Sind Rented Premises Ordinance read with section 151 C . P . C . Qasim son of Abdullah filed counter-affidavit on behalf of the respondent No.2 and stated therein that he was carrying on the business in the name and style of Qasim and Sons. The appellant also filed suit No.2435 of 1975 against the respondents. This suit was for declaration that he is the tenant in respect of the disputed premises. This suit was dismissed by the Civil Court. I have also perused the judgment in suit No.2435 of 1975 filed by the appellant against the respondents.

It is an admitted position that the respondent No.1 filed eviction application against Kassim and Sons. The respondent No.2 not only appeared in the case but contested the case. The case of the respondent No.2 was that it was the sole proprietary concern and Kassim was carrying on business in the name and style of Kassim and Sons. The Controller after taking into consideration the evidence adduced by the parties and after taking into consideration the arguments of the learned counsel for the parties allowed the eviction application on merits. The cause title of the eviction application makes it clear that it was firm that was sought to be made liable for eviction and it was described as a firm.

The case of the appellant is that there are four brothers, Kassim, Din Muhammad, Alimuddin and Muhammad Siddiqui, Kassim is the eldest. The further case of the appellant is that the godown was taken on refit for their own firm but since Kassim was the eldest brother and in order to save same thing from tax the said godown was taken on rent by the appellant from the respondent No.1 in Benami name of Kassim and Sons.

A service upon the firm is deemed to be good service, whether all or any of the partners are within or out of Pakistan. Kassim appeared and defended the case. The eviction order was passed on merits. If there is any dispute between the partners inter se that cannot be tried within the action between the landlady and the firm. The appellant's further case is that there were disputes and thereafter he became tenant of the respondent No.1. The appellant had failed to produce any tenancy agreement in support of his submission. The appellant had not brought on record any document or intimation showing that partnership stood dissolved and the appellant became sole proprietor of the firm or payment receipt showing that he was paying rent. In this view of the matter the submission of the appellant is devoid of any force.

For the foregoing reasons the appeal is dismissed with no order as to costs. The appellant is, however, allowed four months' time to vacate the premises in dispute on or before 30-4-1987. In case of failure to hand over the vacant possession of the premises within the time allowed, the writ of possession will be issued without any notice.

The above are the reasons of my short order dated 21-12-1986 dismissing the appeal after conclusion of the arguments.

M . Y . H . / D-7 / K Appeal dismissed.

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