P L D 1958 (W (PLP)

Hansraj and others v. Bejoy Lai Seal and others A I R 1930 P C 59 and Rain Kinkar Banerjee and others v. Satya Charan Srimani and others A I R 1939 P C 14 approved. Nurul Arfin for Petitioners. Vellani for Respondents. LARI. J.‑-- The respondent No. 2 Messrs. Adamji Abdul Ali and Sons are landlord of tenement No. 10, in building known as Oriental Chambers, situate at South Napier Road, Karachi. One Ghulam Khan was their tenant in respect of this premises. He transferred all his rights in the premises to the petitioners by means of a deed called deed of assign ment on 18th July 1955. Under the provisions of Karachi Rent Restriction Act 1953 a landlord can eject an occupant of premises only under certificate issued by the Rent Con troller, Karachi and this certificate is permissible in case where a tenant sub‑lets the tenancy to a third person. Accordingly the respondent No. 2 filed an application for certificate under section 10 (2) of the said Karachi Rent Restriction Act 1953. The petitioners objected to the issue of the certificate on the ground that they were assignees and not mere sub‑lessees and consequently there had been no infringement of the provisions of the Karachi Rent Restriction Act. The Rent Controller accepted the plea and held that it was not a case of sub‑letting but absolute transfer and rejected the petition of respondent No. 2 for issue of a certificate. They went in revision to the Chief Judge, Small Causes Court, Karachi who took a contrary view and ordered issue of the necessary certificate. The petitioners have come in for quashing this order of the Chief Judge, Small Causes Court, Karachi by means of a writ of certiorari on the ground that the Chief judge has been guilty of an error of law apparent on the face of the record. The first line of reasoning adopted by Mr. Nurul Arfin the counsel for the petitioners who argued the case ably is that sub‑lease is only that transfer in which an ultimate reversion is reserved to the transferor while an assignment dispenses with such reversion in any shape or form. This is fallacious and is not based on the law as prevalent in Pakistan. "Lease" has been defined in section 105 of the Transfer of Property Act as a transfer of a right to enjoy immovable property, made for a certain time, express or implied, or in perpetuity. Thus lease in ordinary parlance A can be an absolute transfer without any possibility of reversion to the lessor. This view was expressed by the Privy Council in case Hunsraj and others v. Bejoy Lai Seal and others (A I R 1930 P C 59). Their Lordships observed It is not surprising to find that the rule, arising out of the special conditions of land tenure in England, that a conveyance to operate as a lease must reserve a reversion to the lessor finds no place in the Act. In India a lessor is expressly empowered to grant a lease in perpetuity, and is not obliged for that purpose, as in England, to grant a lease for lives, or for a term, with a covenant for perpetual renewal ; and, similarly, a lessee as sub‑lessor can create a sub‑lease for the unexpired residue of the term with the same incidents as any other sub‑lease. Assignment is really no term of law in India and every transfer is a sort of assignment. The same view was repeated by the Privy Council in case Ram Kinkar Banerjee and others v. Satya Charan Srimani and others (A I R 1939 P C 114). Their Lordships observed "In form, this grant which is described as a "settlement" transfers the whole and indeed more than the whole of the original grantees' term to the sub‑grantee and would under English law amount to an assignment of the head lease, but it is well‑settled by Indian law and is common ground to both parties in the present case that such a transfer operates by way of sub‑demise and not of assignment". The next line of reasoning pursued by Mr. Nurul Arifin is based on the provisions of section 108 (j) of the Transfer of Property Act. It runs thus : "The lessee may transfer absolutely or by way of mortgage or sub‑lease the whole or any part of his interest in the property". The contention is that what the Karachi Rent Restriction Act prohibited was sub‑lease and not transfer absolute. This argument can hold good only if the three classes of transfer mentioned in this sub‑clause were mutually exclusive but this is not so. In the case mentioned above their Lordships observed : "that they were not prepared to hold that the three classes of transfer are mutually exclusive". We are of the same view. Besides the word 'sub‑let' cannot be said to have been used in section 10 of the Karachi Rent Restriction Act in any restricted sense. It has been used in the general sense. The general meaning of the word 'sub‑lease' is a lease granted by the tenant, does not matter whether the grant is absolute or only limited. In this view `sub‑lease' would cover what is described as an assignment by the petitioners' counsel. The above would show that the Chief Judge, Small Causes Court could reasonably take the view that the assign ment in question comes within the purview of the word sub‑lease' as contemplated by the Karachi Rent Restriction Act. The petition necessarily fails and is dismissed. In view of the fact that the two tribunals had taken different view we order the parties to bear their own costs. K. B. A. Petition dismissed.