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Civil Revision Application No. 200 of 1962, decided on 13th September, 1962.

Premises let to firm-Suit for ejectment brought not against firm but against one of its partners in his personal capacity-Suit, held, not maintainable.

Messrs Chand Oil Mills v. Haji M. Muhammad Zakria & Co. and others P L D 1958 Kar. 510 distinguished.

Waheed Farooqi for Appellant.

Naimuddin for Respondent.

Dates of hearing : 31st August and 12th September 1962.

-Seth Haji Abdul Karim, proprietor of the firm Haji Abdul Karim Abdul Balim, acquired Plot No. 23 by registered deed Exh. 11 from Messrs David Sasoon & Co. Ltd. on 3rd May 1937. On the 10th of November 1947, Haji Abdul Karim Abdul Hakim, through their proprietor, Abdul Qudus Abdul Hakim, registered a lease-deed, Exh. 3, of Plot No. 23, with buildings thereon, in favour of Messrs Mahboob & Co., by their proprietor Mahboob for a period of 3 years at a monthly rent of Rs. 50, on the terms and conditions stated therein. On the 2nd of October 1950, Abdul Karim Abdul Hakim sent letter, Exh. 5, to Messrs Mahboob & Co., calling upon them to deliver vacant possession of the plot and the shop on the 10th of November 1947, the date on which the lease expired. As possession of the shop and the plot, was not delivered Haji Abdul Karim and others moved an application before the Rent Controller, Karachi against Mahboob and others on the 13^th of November 1950 for grant of an ejectment certificate under section 9 of the Sind Rent Restriction Act. The Additional Rent Controller Karachi granted the certificate on the 23rd of July 1952. Against the grant of the certificate, Haji Moosa and Mahboob Ahmad made a revision application under section 20 of the Sind Rent Restriction Act. They also moved a separate application in revision against the order of the Additional Rent Controller, Karachi, dated 29th July 1952, fixing Rs. 55 as fair rent of the premises on an application made by them. Both these revisions were dismissed by the then Chief Court of Sind.

2. On the 26th of February 1953, Messrs Haji Abdul Karim Abdul Halim brought a suit against Mahboob for his ejectment from the shop premises and for recovery of arrears of rent and mesne profits amounting to Rs. 1,375: Mahboob defendant raised various objections to the plaint. He firstly denied that the plaintiff had let the shop premises to the defendant, and challenged the right of the plaintiff to institute the suit. He further contended that Messrs Haji Moosa & Brothers had possession of the shop in suit, and that a. valid notice of ejectment had not been issued. He also denied that the plaintiffs required the shop in good faith for his own use. It was claimed that the rent of the premises was not accepted by anybody, and that the plaintiff firm was not, in any case, entitled to realise rents and mesne profits. On the pleadings of the parties, the following issues were framed

(1) Whether the plaintiff is a registered firm If not, what is its effect

(2) Whether the plaintiff has the locus standi to bring the suit

(3) Whether the plaintiff let the premises to the defendant. If not, what is its effect

(4) Whether Haji Moosa & Brothers are in possession of the premises If so, what is its effect

(5) Whether the letter dated 2-10-1950 is invalid as a notice If so, what is its effect

(6) Whether the certificate of ejectment entitled the plaintiff to file this suit

(7) Whether the plaintiffs are not entitled to rent as stated in para. 7 of the written. statement

(8) To what relief, if any, the plaintiff are entitled.

3. The learned Sub-Judge held on issues Nos. 2 and 3 that the real lessor was Haji Abdul Karim and Abdul Halim, and not Haji Abdul Karim and Abdul Hakim, and that the latter firm was in existence as a firm before the 9th of August 1950, and the date of their joining as partners was incorrectly shown in the certificate of registration as the 9th of August 1950. He further held that the defendant could not challenge the landlord's title in view of section 116 of the Evidence Act. On issue No. 4, he held that the possession of Haji Moosa & Brothers was trace able to the defendant who had negotiated and settled the lease, and that the story that the registered lease deed was superseded by an oral agreement was unbelievable. Holding issues Nos. 2 to 7 in favour of the plaintiff, he decreed the plaintiff's suit. Mahboob then filed an appeal before the District Judge Karachi, which was accepted by the Additional District Judge, Karachi, by his order dated the 26th of October 1959. Dissatisfied with this order, Messrs Haji Abdul Karim Abdul Halim filed a second appeal before this Court, which, having been admitted, has now to be treated as a revision in view of section 59 (4) of the Code of Civil Procedure (Amendment) Ordinance, XLIV of 1962.

4. In the registered lease-deed, the lessor was named as firm Abdul Karim Abdul Hakim through its proprietor Abdul Qudus Abdul Hakim. The defendant, therefore, urged that the plaintiff firm, namely, Abdul Karim Abdul Halim was not the lessor. He further relied on a certified copy of the registration certificate of the firm Abdul Karim Abdul Halim Exh. 4 which showed that the partnership firm was registered on the 9th of August 1950. As this certificate amounted to conclusive proof of the date of registration of the firm under section 68 of the Partnership Act, the learned Additional District Judge came to the conclusion that the firm having been registered subsequent to the grant of the lease could not have been the lessor, and dis believed the statement of Qudus that the firm was in existence since 1936. The learned Additional District Judge also held that though the suit premises were leased to Mahboob & Co. through its proprietor Mahboob, the lease was in favour of Mahboob & Co., and the suit should have been brought against the company, and not against Mahboob in his individual capacity. He, there fore, held that the finding of the learned Sub-Judge on issue No. 3 was not maintainable. On issue No. 4, he came to the conclusion that Haji Moosa & Brothers were in possession, but it was not the same firm as Mahboob & Co. and the change was not merely in the name of the firm. He came to this conclu sion because in the receipt Exh. 10 which was put to the plaintiff in cross-examination, and was admitted to have been passed by him, Abdul Qudus acknowledged receipt of Rs. 50 as rent from the 10th of September to 10th of October 1948 from Haji Moosa & Brothers.' The learned Additional District Judge also came to the conclusion that though Haji Moosa & Brothers was the same partnership firm as Mahboob & Co., and the substitution of Haji Moosa & Brothers in place, of Mahboob & Co. had no material effect, but the suit had not been brought even against Mahboob & Co., and had been brought against Mahboob as an individual, and, therefore, the suit had not been brought against the lessee at all. Therefore, holding that the plaintiff-firm had no locus standi to bring the suit, and that the suit was not brought against the lessee at all, as it had been brought against Mahboob in his individual capacity and not against Mahboob & Co., or Haji Moosa & Bros., he dismissed the suit with costs.

5. Learned counsel for the appellant argued that the learned Additional District Judge clearly erred in coming to the conclusion that the plaintiff was not the lessor. He urged that the mention of the name of the firm as Haji Abdul Karim Abdul Hakim in the

lease-deed was a clerical mistake for Haji Abdul Karim Abdul Halim who was the real lessor, and in this bahalf relied on the registered deed of sale, Exh. 11, in favour of Haji Abdul Karim as proprietor of the firm of Haji Abdul Karim Abdul Halim, dated the 3rd of May 1937. He further drew our attention to Exh. 6, in which Mahboob and Haji Moosa admitted that they were tenants of the firm Haji Abdul Karim Abdul Halim. This admission was made in the course of proceedings taken by Haji Abdul Karim for obtaining a certificate under section 9 of the Sind Rent Restriction Act. This was entirely overlooked by the lower Appellate Court. Besides the defendant/respondent himself produced receipt Exh. 10 dated 18-10-1948 which showed payment of Rs. 50 as rent to Haji Abdul Karim Abdul Halim for one month from 10th September to 10th October 1948. The learned Additional Dirtrict Judge held otherwise, because a certified copy of Registration Certificate showed that this firm was registered on 9-8-1950. The appellants, however, filed before the Additional District Judge a certified copy of the corrected Registra tion Certificate of the firm which showed the date of joining of the partners in the firm Haji Abdul Karim Abdul Halim as the 24th of September 1935. This date was corrected from 9-9-1950 to 24-4-1935 by the rectification applications dated 9-9-1959 and 19-9-1959. The partners of this firm are shown as Abdul Halim, Abdul Qudus and Sultan Ahmad sons of Abdul Hakim. This certificate supports the statement of Qudus as his own witness that the firm was in existence since 1936, or so. Though this document was placed on the record of the lower Appellate Court, it was neither admitted in evidence nor rejected. It is a certified copy of a public document, and we see no reason why it should not be admitted in evidence as prayed by the learned counsel for the appellant. As the objection taken by the defendant that the premises were not leased to the defendant by the plaintiff was vague, the plaintiff's attention was not directed to the precise nature of the objection, which must have been a surprise to him. It is, therefore, iminently just that we should admit this document. It is thus established that the firm Abdul Karim Abdul Halim was in existence since 1935. We, therefore, hold, agreeing with the trial Court that the firm Abdul Karim Abdul Halim is the landlord, and the plaintiff had locus standi to institute the suit. The finding of the lower Appellate Court on this question must, therefore, be set aside. The lower Appellate Court failed to take into account the document Exh. 10 produced by the plaintiff himself, and Exh. 6 which show the plaintiff as the lessor.

6. The second objection of the learned Additional District Judge on which he dismissed the suit that it had not been brought against the lessees at all, must prevail. The suit has been brought against Mahboob, son of Gulab carrying on business in the name of the firm Haji Moosa & Brothers, Marriot Road, Karachi. The lease-deed was executed by Messrs Mahboob & Co. by their proprietor Mahboob. Thus the lease-deed itself shows that Messrs Mahboob & Co. was the lessee. It is in evidence that Mahboob & Co. did not conduct any business, and that the business was commenced under the name and style of Haji Moosa & Brothers, a registered partnership concern. No doubt Mahboob has admitted that he did not inform the plaintiff in writing that the tenancy in future would be in the name of Haji Moosa & Brothers, but Mahboob and Haji Moosa have stated that the original tenancy lasted only a month, and thereafter they contacted Abdul Qudus and informed him that henceforth they would do business in the name of Haji Moosa & Brothers, and future rent would also be paid by that firm, and Abdul Qudus agreed to it. The original lease was determined by surrender, and future rent having been agreed to be paid by the firm, was actually paid by the new firm. In support of this statement, receipt Exh. 10 was produced. This receipt was given by Abdul Qudus on 18-10-1948 and acknowledges receipt of a sum of Rs. 50 as rent from 10th September to 10th October 1948 from Haji Moosa & Brothers'. Consequently the statements made by Mahboob and Haji Moosa are supported by the receipt Exh. 10, the execution of which has been admitted by Qudus. Mahboob and Haji Moosa have also stated as witnesses that ever since December 1947, the name of the firm inscribed on the board is Haji Moosa & Brothers. The plaintiff could not have been unaware all along that Haji Moosa & Brothers have been carrying on business in the shop in dispute, and the finding of lower Appellate Court is clearly borne out by the receipt Exh. 10 that Haji Moosa & Brothers were accepted as tenants by the plaintiff. Learned counsel for the appellant contends that section 92 of the Evidence Act bars the admissibility of oral evidence to prove any variation in the terms of the lease which was entered into by a registered document. He has referred us to its fourth proviso. This contention has no force because the defendants/respondents have not relied on oral evidence to rescind, vary or modify the terms of the original lease. What they rely on is clause (f ) of section 111 of the Transfer of Property Act which provides that lease of immovable property is determined by implied surrender. The defendants/respondents have relied on receipt Exh. 10, which is in fact documen tary evidence, and not oral evidence. It is further argued on their behalf that it can be proved by conduct that a new lease was entered into, and that section 92 does not bar it.

7. The first Appellate Court has held, accepting the state ments of the defendants along with the receipt Exh. 10, that Haji Moosa & Brothers were in possession of the shop, and were accepted as tenants. In the application for fixation of fair rent, Haji Moosa & Brothers claimed that the firm was in possession of the shop as tenants and, therefore, the plaintiff was not unaware that Haji Moosa & Brothers claimed to be the tenants and were in possession. The plaintiff denied this fact in his reply, but the Rent Controller did not hold otherwise. The position that emerges is that the plaintiffs knowing that Haji Moosa & Brothers were carrying on business in the premises not only did not implead them as defendant, but did not even implead Mahboob & Co. as defendants. Instead the plaintiffs chose to implead Mahboob only in his personal capacity and, therefore, the suit is not brought against the firm which was in possession as a lessee, and hence the suit has been rightly dismissed.

8. Some authorities were cited before us by the learned counsel for either side, but it is not necessary to refer to them. Clause (g) of section I l l of the Transfer of Property Act provides that a lease of immovable property determines by implied surrender. In this case the original lease m favour of Mahboob & Co. is proved to have been surrendered and the law permits it. Conse quently it was necessary for the plaintiffs to have sued Haji Moosa & Brothers in the suit for ejectment.

9. Learned counsel for the appellant has argued that the plea that Haji Moosa & Brothers were the lessors not having been taken, the defendant could not be allowed to raise it. This contention has no force because issue No. 4 covers this fact and evidence has been led on it by both the parties. The plaintiff cannot be said to have been taken by surprise as the precise contention was also raised by Haji Moosa & Brothers in the application to the Rent Controller for fixation of fair rent and no prejudice can legitimately be claimed by the plaintiff. It is significant that even before us no prayer was made for allowing the plaintiff to implead Haji Moosa & Brothers as defendants. When objection was raised by the defendants that Haji Moosa & Brothers were in possession; and an application had already been made on their behalf for fixation of fair rent, the plaintiffs should have impleaded the firm or all its partners as defendants.

10. Learned counsel for the appellant has relied on the case of Messrs Chand Oil Mills v. Haji M. Muhammad Zakria & Co. and others (P L D 1958 Kar. 510), which holds that under the law there is no bar to filing a suit against a partner of a firm, as under section 43 of the Contract Act in a suit upon a contract made by a partner on behalf of a partnership, the promisee can compel all or any of the partners to perform the whole of the promise. The provision in Order XXX, rule 1, C. P. C. that in a suit against a firm, it may be sued in the name of the firm is only procedural ; and it does not in any way affect the substantive law laid down in the Contract Act. This case has no application to the present case which is one of tenancy, and is not a case under the Contract Act of two or more persons making a joint promise. Under rule I of Order XXX, C. P. C. the plaintiff could have sued the firm in the name of the firm, or otherwise all the partners of the firm, but citing Mahboob as defendants, "carrying on business , in the name of the firm of Haji Moosa & Brothers" is not suing the firm, but amounts to a suit against Mahboob in his personal capacity. The other partner Haji Moosa has no been impleaded at all, and the lessees have not been sued.

11. We are dealing with this matter in revision, and as we agree with the first Appellate Court that the suit has not been brought against the lessee, namely, Haji Moosa & Brothers, we see no force in this petition, which is dismissed with costs.

K. B. A.

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