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Revision No.46 of 1984, decided on 20th May, 1986.

‑‑0. XXI, R. 58, Sind Rented Premises Ordinance (XVII of 1979), S.15‑‑Revision‑‑Ejectment‑‑Execution proceedings‑‑Objections filed by intervenor on behalf of partnership firm in execution proceedings to the effect that firm was entitled to notice‑‑Trial Court allowing objection but District Judge reversing his finding on ground that no rent had ever been tendered by said firm to landlord‑‑Landlord filed ejectment proceedings against respondent who was in possession of premises and had been treated as their tenant since long and there had been different litigations between them with same status‑‑Intervenor firm had never tried to deposit any rent and in fact very existence of firm was open to doubt and firm was raising a mere technical plea without any substance‑‑Interference declined in revision.

Abdul Nasir Khan for Appellant.

A.M. Hashmi for Respondents.

Date of hearing: 20th May, 1986.

This revision application is directed against the order passed by IIIrd Additional District Judge, dated 8‑10‑1983 whereby the appeal of the respondent was accepted and the order passed by Ist Senior Civil Judge, Karachi in Execution No.2 of 1976 arising out of Rent Case No. 2798 of 1974 was dismissed.

2. Tae relevant facts are that the respondent No.l is the owner of the disputed premises and respondent No.2 was the admitted tenant of the same from 1963 onwards. The respondent No. 1 filed Ejectment Case No. 215 of 1969 and the compromise took place between the respondents Nos.l and 2 by which the respondent No.l agreed to continue the tenancy of respondent No. 2 on the same terms and conditions but had enhanced the rent at Rs.250 per month. The previous agreement of tenancy was Exh.7, where Muhammad Matin was shown as carrying on business in the name of M.A. Agencies and the fresh agreement executed on 5‑8‑1972 showed the M.A. Agencies a partnership firm, as the tenants through its managing partner Mr. Muhammad Matin. However, it is an admitted position that the receipt No. 269, dated 1‑3‑1974, Exh. 16 shows the tenant as M.A. Agencies through its proprietor Muhammad Matin.

3. There was default in the payment of rent in 1974 and, therefore, the present Ejectment Case No. 2798 of 1974 was filed. The matter was contested by M.A. Matin, who claimed himself to be the proprietor of M.A. Agencies.

4. Issues were framed but evidence was not recorded in view of the fact that the deposit of rent order had been made in the case but the respondent No.2 did not deposit the rent and, therefore, his defence was struck off. Muhammad Matin had taken the position that because the dispute has arisen between him and the other heirs of his father, Muhammad Amin, in respect of the partnership of M.A. Agencies, therefore, he was not able to deposit the rent.

5. It may be mentioned here that there was a partnership between Muhammad Matin and his father Muhammad Amin, on 9‑10‑1962 in the name of M.A. Agencies showing the address as 7‑B, Second Floor, Zam Zam Chamber, Dunolly Road, Karachi, but in spite of that fact Muhammad Matin had still taken the present premises on rent on 9‑10‑1962 in his own name.

6. After his defence was struck off, Muhammad Matin filed an appeal against his ejectment but the same was dismissed.

7. Muhammad Matin again filed second appeal in the High Court but he did not meet with any success.

8. When the respondent No. l filed execution application against Mohammad Matin then for the first time Muhammad Jamil, claiming himself to be the heir of Muhammad Amin, filed objections on behalf of the partnership firm M.A. Agencies and claimed that after the death of Muhammad Amin in 1975 the partnership had devolved upon the heirs of Muhammad Amin and Muhammad Matin in pursuance of para 7 of the partnership deed between Muhammad Amin and Muhammad Matin executed on 9‑10‑1962. But the application of M.A. Agencies does not show that Muhammad Jamil was in fact the person in possession of the property. On the other hand, it is clearly stated that Muhammad Matin had started to mis‑appropriate and convert the partnership assets into personal assets and that it was in March, 1976 when the other partners /intervenor had come to know that the decree holder in collusion with Muhammad Matin had filed ejectment case against him and had obtained his ejectment. It was claimed that partnership firm, was in fact, in possession of the premises in question.

9. The learned Civil Judge examined the evidence of the parties and allowed the objection of the Intervenor firm, M. A. Agencies, and held that since the partnership firm was the tenant of the premises in dispute therefore, it was entitled to notice of the rent proceedings and since that was not there, therefore, the execution could not take place against M.A. Agencies, a partnership firm, while the ejectment order was only against M.A. Matin.

10. The learned Additional District Judge, however, took a broad view of the matter and came to the conclusion that Muhammad Jamil came in the picture for the first time when the application was made on behalf of respondent No.2 by Jamil who was the real brother of respondent No.l. The learned A.D.J. took into question the fact that a : no rent had ever been tendered by the said firm to the landlord and that in fact the address of the said firm as Wazeer Mansion while the present premises was room No.7‑B, Zam Zam Chamber, Dunolly Road, Karachi. He further took into consideration that Muhammad Jamil or the firm had never contested the original proceedings. He, therefore, reversed the decision of the Civil Judge.

11. The learned counsel for the applicant, Mr. Abdul Naseer Khan has submitted that execution has been allowed against a firm, which A was not even made a party in the original proceedings. It appears to me that the objections of the present applicant firm has hardly any substance. This firm had come into existence in 1962 and yet the tenancy in 1963 was created in the name of M.A. Matin on behalf of M.A. Agencies without showing that M.A. Matin was acting as a partner of any firm. All the time the rent receipts had been issued in the name of M.A. Matin upto 1972 and there was never any contest made by the deceased Muhammad Amin in respect thereof as to who was the owner or partner of M.A. Agencies. The compromise in Rent Case No 215 of 1969 between the respondents Nos. 1 and 2 had provided for continuance of the same tenancy and, therefore, the partnership firm could not have been allowed to come in between. But Exh.10 shows that it was an agreement between the landlord and a partnership firm through M.A. Matin as its Managing Director. But another surprising fact is that although this agreement of tenancy was in existence and late Muhammad Amin was also alive but he never bothered to raise any objection as to why the receipts upto 1974 were being issued by the respondent No.l in the name of M.A. Agencies, through its proprietor. Muhammad Matin. Therefore, there is apparent conflict between Exh.10 viz. the agreement executed on 5‑8‑1972 and the rent receipts which were continued to be issued upto 1974. The respondent No.l had not admitted the execution of Exh.10 but even if the execution of Exh.10 was presumed to be of respondent No.1 still the position is that M. A

Matin as well as Muhammad Amin have allowed the rent receipts to be issued in favour of Muhammad Matin as proprietor of M.A. Agencies

In these circumstances, there was nothing wrong that the respondent No.l filed ejectment against Muhammad Matin, who had been treated as their tenant throughout the year 1962 and there had been different litigations between them with the same status. It was too late for Muhammad Jamil to get up the case of the tenancy in favour of the partnership when this partnership had never asserted this position as a tenant right from 1972 till 1976. This firm had never tried to deposit any rent and in fact, the very existence of this firm in actuality is opened to doubt except that the heirs of Muhammad. Amin may claim their accounts from M.A. Matin in view of the alleged partnership of 9‑10‑1962. However, I refrain to make any comment on that aspect of the matter as I do not want to prejudice position of any body in this regard. It appears to me that the present alleged firm of M.A. Agencies is raising a mere technical plea without any substance particularly in view of the fact that Muhammad Matin has always been in possession of the premises and Muhammad Jamil did not even allege as to when he was inducted into the possession of the same and in what manner and by whom. In these circumstances, this revision is dismissed.

M. Y. H. /5158/K Petition dismissed

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