1992 PLP 1014 (MLD)

This First Rent Appeal is directed against the order dated 4‑2‑1987 passed by the I1Ird Senior Civil Judge/Rent Controller, Karachi south, allowing the eviction application and directing the appellants to put the respondents in vacant possession of the shop in dispute within sixty days from the date of the order. The facts leading to the filing of the above appeal are that. the respondents are the owners and landlords of the building on Plot No.N.P.9/42 43, Napier Quarters, Karachi. The case of the respondents, as set out in the eviction application, is that the appellant No.1 is the tenant of the respondents in respect of a shop premises/portion in the building on the aforesaid plot. The eviction was sought on the following grounds:‑ (1) The appellant No.1 has unauthorisedly and illegally sublet and/or transferred the said shop premises to the appellant No.2. (2) The appellant No.1 has failed to pay rent from 1982 till the date of riling the application. (3) The respondents have purchased the said building for the purpose of establishing Imran son of respondent No.2 in business as he does not own nor occupy any business premises and as such respondents required the said premises in good faith reasonably and bona fide for the use of Imran who wants to do the business of old cloth and other business. The eviction application was resisted by the appellants. The appellants contended that the appellant No.1 was the sub‑tenant of M/s. Kutch Flour Mills (Mst. Fatima Bai widow of Umer Moosa), and it was within her knowledge that the appellant No.1, which is a partnership concern, was running its business under the name and style of M/s. Pak Tea Company (the appellant No.2). The allegation of unauthorisedly and illegal subletting and/or transferring the shop premises to the appellant is denied. The allegation that the respondents have purchased the building in question only for the purpose of establishing Imran is also denied. The allegation of default is also denied. The respondents filed affidavits‑in‑evidence of Mohammad Aslam and Imran. The appellants filed affidavit‑in‑evidence of Mohammad Sharif m rebuttal. The learned Controller, on assessment of the evidence adduced by the parties, decided point No.1 in the negative and other two points in the affirmative and allowed the eviction application on the ground of subletting and personal requirement. The appellants being aggrieved, have filed the present appeal. In support of the above appeal, Mr. Khalilur Rehman, learned counsel appearing for the appellants, raised the following contentions:‑ (1) The appellant No.2 is sister concern of appellant No.2 and Mohammad Sharif is partner in both the firms and therefore it cannot be said that the appellant No.1 has sublet the shop premises to appellant No.2. His further contention was that Mst. Fatima Bai, the premises owner of the shop premises had filed Suit No.3181/79 against Pak Tea Company' in respect of shop in question which was subsequently compromised, therefore it was within the knowledge of Mst. Fatima Bai that appellant No.2 was in possession of the shop in dispute and the present respondents have stepped into the shoes of Mst. Fatima Bai, the previous owner of the disputed premises. Therefore at this stave the respondents cannot take this plea of sub letting. (2) The respondents have failed to establish that they required the shop premises for Imran. His further contention is that the respondents have acquired possession of another shop from other tenant, as such their requirement is not established due to changed circumstances. On the other hand, Mr. Abdul Sattar Memon, learned counsel for the respondents submitted that the findings on both the points are in accord with the evidence on the record. The shop in question is required for Imran. as such there are no changed circumstances. In order to appreciate the respective contention of the learned counsel for the parties, it is advantageous to reproduce section 15(2)(iii)(a) of the Sindh Rented Premises Ordinance, 197Q (hereinafter referred to as the Ordinance):‑ "

15. Application to Controller.‑‑(1)............ (2) The Controller shall, make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that‑‑‑ (i) . .................. (ii). ................. (iii) the tenant has without the written consent of the landlord‑‑‑ (a) handed over the possession of the premises to some other person;" Under this subsection, a landlord would be entitled to evict his tenant if he handed over possession of the premises to some other person without the written consent of the landlord. The respondents would be entitled to evict the first appellant, only if they established that the first appellant has handed over the possession of the shop premises to the second appellant. The case of the respondents in their application under section 15(2) .(iii) (a) of the Ordinance was that the appellant No.1 has unauthorisedly and illegally sublet and/or transferred the said shop premises to the appellant No.2 when eviction is sought on that ground. It is not settled law that the onus to prove parting with the possession is on the landlord. If the landlord prima facie shows that the occupant Was in exclusive possession of the premises let out for valuable consideration, it would then be for the tenant to rebut the evidence. In the present case, the respondents produced no evidence to show such parting with the possession in spite of the appellant's denial in the written statement of any parting with possession It was averred by them therein that first appellant was the sub‑tenant of 1M/s. Kutch Flour Mills (Mst. Fatima Bai widow of Umer Moosa), and it was within her knowledge that the appellant Nod, which is a partnership concern, was running its business under the name and style of M/s. Pak Tea Company (the second appellant). The averment that the first appellant was running its business under the name and style of M/s. Pak Tea Company provided the necessary ammunition for a formidable battle in which the respondents took upon themselves to show that the first appellant has parted with the possession of the shop premises to the second appellant. The first respondent filed his own affidavit‑in‑evidence wherein he reiterated the same facts that the first appellant has without. permission/consent and. unauthorisedly and illegally sublet and/or transferred the said shop premises to appellant No.2. He admitted in his cross‑examination that his mother had filed- Suit No.3181/79 against Pak Tea Company. He denied the suggestion that the first appellant and the second appellant are running business in the shop in dispute before 1979. He stated that first appellant has handed over possession to the second appellant. tae admitted that Mohammad Sharif is working in the shop. He showed his ignorance that Mohammad Sharif, on behalf of first appellant, is depositing runt in Misc. Rent case. It is pertinent to note that Mohammad Sharif is shown as partner in the second appellant (Ext. A/7). Mohammad Shaftf filed affidavit‑in‑evidence in rebuttal wherein he stated that he is partner of M/s. Jamil Sons & Company and is also partner of M/s. Pak Tea Company, and both the concerns are being run at the shop premises in question for the last so many years to the knowledge of Mst. Fatima Bai. He stated that M/s. Jamil Sons and Company had filed Misc. Rent Case No.25/72 and started depositing rent. After change of ownership, the rent of the shop premises is being deposited by M/s. Jamil Sons & Company (the photostat copy of Misc. Rent Case. No.2126/85 is annexed to the affidavit and marked as 0/4). He replied that some of the partners of the first appellant and second appellant are common. The appellants relied principally on the plaint in Suit No.3181 of 1979 filed by Kutch Flour Mills against Pak Tea Company. The evidence was clear namely, that to the knowledge of Kutch Flour Mills, the second appellant was occupying shop premises. In Chaplin v. Smith (1926) 1K.B. 198, the lessee covenanted with his lessor that he would not assign or underlet or part with possession of the demised premises or any part thereof. He assigned his business to a company of which the Managing Director and in which he held a controlling interest. He carried on the business of the company on the premises which were stated to be its registered address and on which the name of the company was exposed. He kept the key of the premises in his possession. The company agreed to indemnify him in respect of rates and taxes. The company appeared in the valuation list for the parish as the occupier of the premises of the purpose of the poor rate. Subsequently as second company was formed, of which the lessee was the Managing Director, and which took over the business, assets, and liablities of the first company. In negotiating for this transfer the lessee stipulated that he should remain in possession as actual tenant of the demised premises. On these facts, the Court of appeal held that there had been no breach of the lessee's covenant. At page 211 Scrutton L.J. made the following observations:‑ "He did not assign, nor did he underlet. He was constantly on the premises himself and kept the key of them. He did business of his own as well as business of the company. In my view he allowed the company to use the premises while he himself remained in possession of them." Foa on Landlord and Tenant, 6th Edition at page 323 summarised the law on the subject in the following words:‑ "The mere act of letting other persons into possession by the tenant, and permitting them to use the premises for their own purposes, is not, so long as he retains the legal possession himself, a breach of the convenant." It is clear from the aforesaid decision that there cannot be a sub letting unless the tenant parted with legal possession. The mere fact that another is allowed to use the premises or common partners run the business while the tenant, that is, the first appellant retains the legal possession is not enough to create a sub‑tenancy. Section 105 of the Transfer of Property Act defines a lease of immovable property as to transfer of right to enjoy such property. Therefore to create a lease or tenancy or sub‑lease or sub‑tenancy, a right to exclusive possession and enjoyment of the property should be conferred on another. In the present case, the exclusive possession of the shop premises was not given to the second appellant. The first appellant continued to be the tenant though in regard to the business carried on in the premises they formed a sister concern wherein some partners are common. The second appellant is not given any exclusive possession of the shop premises or a part thereof. The first appellant continues to be in possession subject to the liability to pay rent to its landlord. I therefore hold that in the circumstances of the case, the first appellant did not part with possession of the shop premises to the second appellant and therefore the first appellant is not liable to be evicted on this ground. In that view of the matter, the findings on this ground are set aside. Reverting to the last contention of Mr. Khalilur Rehman that the respondents have not established that they required the shop premises for Imran son of respondent No.2, it is suffice to observe that the respondents averred in their eviction application that the respondents have purchased the said building for the purpose of establishing Imran in business as he does not own nor occupy any business premises and as such respondents required the said premises in good faith reasonably and bona fide for the use of Imran who wants to do the business of old cloth and other business. The appellants denied contents of para 4 of the eviction application in their written statement. The respondents repeated the same facts in the affidavit‑in‑evidence of Mohammad Aslam. To a question in cross‑examination, Mohammad Aslam replied that there are three shops in the building, out of which one is in his possession, the other is in possession of Riaz and the third is the shop in dispute. He denied the suggestion that his brothers are doing second‑hand clothing business in the space. To another question, he replied that he is doing business of tea. To another question, he replied that Haji Moosa (the second respondent) is estate broker. He denied the suggestion that Imran is also working with his father as estate broker. To another question, he replied that "it is a fact that Imran has worked a business of second‑hand clothing. Imran has not obtained import licence of second‑hand clothing. Imran is not paying Income Tax Imran is doing his business since last 2 years. I do not know if Imran is running Bank account. It is incorrect to suggest that Imran is not in need of shop but I want to give it on rent on huge pugree". Imran son of Haji Moosa stated in his affidavit‑in‑evidence that the property has been purchased to establish him in business. He further stated that "I want to do business of old and second hand clothes and other allied business in the premises in dispute. That the premises in dispute is required by me bona fide and in good faith for doing business therein by me. That neither I nor my father has any other business premises for carrying on my aforesaid business of old and second‑hand clothes and other allied business therein". He admitted in his cross‑examination that he is student of S.M. College 1st Year. It is advantageous to reproduce the relevant portion from his cross -examination which reads as follows:‑ "I am a Commerce student. I want to continue my study upto B.Com. My father is Estate broker. I have 2 brothers who are minors. I have no Bank account. I have not obtained an import licence for the year 1985‑

86. I have not filed any application for registration as importer with Chief Controller of Imports and Exports, Government of Pakistan." In rebuttal, the appellants filed affidavit‑in‑evidence of their partner Mohammad Sharif. Mohammad Sharif stated in his affidavit that "it is absolutely denied that the shop premises in question is required by the applicant for establishing Imran son of Haji Moosa, the son of applicant No.2. As admitted by the above‑named Imran, he is still a minor and a student of 1st Year Inter Com. Said Imran had further admitted in his cross‑examination that he had no experience of business nor he has so far done any business of import as alleged by applicant No.1 and that he still wants to continue his education, and complete his B.Com., and thereafter higher studies. Thus the shop premises in question are not bona fide required by the applicants for setting up Imran in business". The appellants stated that except the two shops, one in occupation of the appellant and the other in the occupation of Riaz Trading Company, the entire building is in occupation of the respondents, which is far in excess of their present and future requirements. After analysing the evidence, the learned' Controller came to the conclusion that the respondents established that they required the shop premises in dispute for Imran who wanted to do business in second‑hand clothing.‑ The respondents had stated that one shop was in occupation of Mohammad Aslam where he is doing business of selling tea, the other shop is in occupation of Riaz Trading and the third shop is in occupation of the appellants. In the aforesaid background, the learned Controller came to the conclusion that the requirement of the respondents was reasonable and bona tide. I: is a well settled law in this branch that the need of the landlord must be reasonable and must be bona fide in order to evict the tenant on the relevant provisions of the various Ordinances. Whether in a particular situation the need was reasonable or bona fide must be judged from the objective view point, not merely by assertion or denial of the parties. The learned Controller applying the tests which appeared to him to be objective tests found that such need is bona fide or reasonable. He accordingly allowed the application on this ground also. The evidence of Mohammad Aslam and Imran was consistent with averment made in the eviction application and nothing in rebuttal was brought on record by the appellants. In my view the conclusion arrived at by him is neither contrary to evidence on record nor it is perverse. I am satisfied that the learned Controller rightly concluded that the respondents had succeeded in establishing personal and bona fide need of Imran in respect of the shop premises in dispute. Lastly the appellants filed an application seeking to bring certain subsequent events on record. The alleged subsequent event is that the respondents had filed eviction application against Riaz Trading Company on the ground of personal requirement and subletting. Riaz died during the pendency of the eviction application. Riaz's sons filed an application stating therein that the shop premises in occupation of Riaz Trading Company, was already handed over to the respondents. The contention is that having regard to this subsequent event, that is, handing over of the shop, the present claim for shop does not survive. I am afraid, this circumstance, even if true, will not tilt the balance in favour of the appellants. Even if the need of the other two brothers, namely, Mohammad Aslam and Haji Moosa, who are co‑owners is taken into account, the order of eviction is supportable on the basis of their need. The application is, therefore, of no practical assistance to the appellants. In the result, the appeal is dismissed with no order as to costs. The appellants are allowed four months' time to vacate the shop premises subject to their paying the monthly rent during this period. AA./J‑128/K Appeal dismissed.