P L D 1961 (W (PLP)

ABDUL HAMID, J.‑This is a Letters Patent Appeal by the plaintiff against the judgment of one of our learned brothers dated 16th September 1958, who heard the case on the original side, and dismissed the plaintiff's suit. The suit was for the eject ment of the defendants and for the recovery of Rs. 60,266‑10‑8 as compensation or mesne profits.

2. The facts of the case briefly are that Mst. Havabai who was the plaintiff in the suit, and is now an appellant before us, was the owner of the premises bearing No. 11/1, sheet R. C. 8, situated at the junction of the Bunder and Hospital Roads, Karachi. It consists of a cinema known as Imperial Talkies, show rooms and some shops and quarters. Sometime in 1942/43, the premises were leased to one Hariram Rewachand. That lease was renewed on 3‑5‑1947 by another lease deed which was registered. The lease was for a term of 22 years and pay ment of a rent of Rs. 2,000 per mensem. It was also a condition of the lease that if the premises were to be rebuilt after destruc tion by fire, the rent would be increased to Rs. 2,500 per month. The premises caught tire in 1948 and a part of the building and furniture were destroyed.

3. Hariram Rewachand migrated to India in August 1949, and his tenancy rights in the premises were declared by the Custodian to be evacuee property, and whatever of the premises was standing on the site was seized by the Custodian's order on 13‑8‑1948.

4. On 18‑1‑1950, Havabai applied to the Custodian for releasing the property, and while the proceedings before the Custodian were pending, a lease deed was executed by Mst. Havabai on 24‑9‑1949 in favour of Nurullah, which is Exh. 47‑A on the record. This was an unregistered document, arid under it the premises were let out to him on the terms arid conditions on which these had been leased to Hariram Rewachand under the lease deed of 3rd May 1947.

5. On 26‑9‑1949, that is 2 days after the execution of Exh. 47‑A another lease deed was executed in respect of the premises. It is Exh.

48. The difference between‑this lease‑deed (Exh. 48) and the previous one (Exh. 47‑A), was that in the second deed it was further stipulated that the lessee would undertake repairs 'at his costs to the tune of Rs. 50,000 and would hold a lien for it on the property. This document was also not registered, but the terms of both in other respects were identical. Both were described as "Deed of Provisional Lease" and in both it was stated that they would be replaced by a regular lease deed in favour of the lessee or their nominees on the same terms and conditions.

6. In the proceedings before the Custodian instituted by Havabai for releasing the property from the Custodian's control, temporary possession of the property was given. to Havabai by the Custodian on 28‑9‑1949 for affecting repairs but it was taken back from her and re‑seated by the Custodian on 18‑1‑1950. Mst. Havabai was directed to establish her claim to its possession in a Civil Court.

7. On 3‑2‑1950, Mst. Havabai executed an Agreement Exh. 49, in favour of Nurullah and six other persohs : (1) Sharif Haroon. (2) Habib Haroon, (3) Latif Haroon, (4) Ashraf Haroon, (5) Asghar Latif and (6) Ghulamali. By this docu ment, six other persons were associated as lessees with Nurullah in the first instance, and were called the second party. One Mahmood (son of Abdur Rahim), the husband of Havabai, was also introduced as third party. It was stated in the deed that the seven lessees will take steps to obtain possession of the property from the Custodian, and after that they and Mahmood, the husband of Havabai, would constitute a partnership, and the partnership thus constituted would become the lessee of the property. A partnership of the eight persons was to be created and that partnership was to become the lessee of the property on payment of its 4,000 per mensem as rent. That portion of the deed runs as follows :‑ "That the second and third parties shall enter into an agreement of partnership to run the cinema. The shares of the partners shall be equal in profit and loss, but third party (that is Mahmood, husband of Mst. Havabai) shall not be required to invest any capital, which shall be found entirely by the Second Party. (4) The agreement of Partnership shall further provide that every partner shall be entitled to take equal part in the manage ment of the business . . . . . ."

8. In another clause (No. 5), it was provided that the first party, (that is Mst. Havabai), shall lease to the newly constituted partnership the Imperial Cinema for a period of 20 years from 12‑8‑1949 at a rent of Rs. 4,000 per ‑month. A proper lease deed was to be drawn up by lawyers (Para 6). All this was to happen on the recovery of possession of the property from the Custodian. In the event of failure to obtain possession, the Agreement was to become void. (Para. 7).

9. It so happened that on 14‑2‑1950, possession of the premises was given back by the Custodian to Mst. Havabai, and on the following day, Mst. Havabai delivered possession of this property to Nurullah only under a writing dated 15‑2‑1950 (Exh. 50). Nurullah has signed the document showing that he had taken possession of the property on 15‑2‑1950. No partnership deed, as contemplated by the Agreement 3‑2‑1950, was executed.

10. On 25‑5‑1950, Mst. Havabai, through her counsel, asked the seven members of the intended partnership, to execute a lease deed in terms of the agreement of 3rd February 1950, but they repudiated the agreement of 3rd February 1950.

11. Nurullah stated through his counsel on 29‑5‑1950 (hat the agreement of 3rd February 1950 stood cancelled, and he alone was in possession of the property as lessee since 15‑2‑1950, in pursuance of the agreement of 26th September 1949, and was prepared to abide by its terms. He stated that he had .deposited rent for the past months,. And was prepared to deposit rent for the future.

12. On 13‑11‑1950, Mst. Havabai brought Suit No. 661 of 1950 against Nurullah and seven others including Mahmood, her Kusband, on the allegations that they were in possession of the property as licensees, and were liable to ejectment. In that suit, a sum of Rs. 60,266‑10‑8 was also claimed as compensation or mesne profits for the use and occupation of the building from 12th August 1949.

13. While this suit was pending in this Court, Nurullah presented in 1954 an application to the Rent Controller for the reduction of the rent, and the learned Rent Controller, by his order dated 5‑6‑1954, reduced the rent from Rs. 2,500 to Rs. 1,515 per mensem. This order of the Rent Controller was confirmed on review by the Chief Judge, Small Causes Court, by his order dated 18‑2‑1955.

14. Mst. Havabai then instituted a suit on 27‑6‑1955 (Suit No. 582 of 1955) in which the decisions of the Rent Controller and the Chief Judge, Small Causes Court, were challenged.

15. Both the suits, S. No. 661 of 1950, which was for the ejectment of Nurullah and 7 others, and Suit No. 582 of 1955, in which the reduction of rent was challenged, were heard together, and were decided by a learned Judge of this Court sitting on the original side, by one judgment dated 16‑9‑1958. In the suit for ejectment, his decision was that Nurullah alone was a lessee of this property because a lease was created in his favour alone by the "DEED of Provisional Lease" dated 26th September 1949. He was not held liable to ejectment because the Controller of Rent's certificate for his ejectment had not been obtained, which was necessary under the provisions of section 13 of the Rent Restriction Act.

16. In the other suit, the challenge offered to the reduction of rent was not accepted. Reduction was maintained because Nurullah was held to be a tenant and legally competent to apply for reduction of rent under the provisions of the Karachi Rent Restriction Act.

17. There are now two appeals before us, one, against the decision in Suit No. 661/1950, and the other against the decision in Suit No. 582/1955. The judgment will dispose of both these appeals.

18. The main grounds of attack on the judgment are the following :‑ (1) A lease in fact was created under the document of 26th September 1949, Exh. 48, in favour of 8 persons Nurullah and 7 others, but only Nurullah was mentioned as a lessee. The lessees other than Nurullah have repudiated the lease, and all the lessees are liable to ejectment, because repudiation by the lessees has terminated the lease. (2) The lease deed of 26‑9‑1949 is an unregistered document, and Nurullah even if he is admitted to be a lessee, has not acquired the status of a tenant. He is only a licensee and the protection of the Rent Restriction 'Act is not available to him. He can be ejected by a suit without any certificate from the Rent Controller under the Rent Restric tion Act. (3) The lease deed of 26‑9‑1949 was superseded by the agreement of 3rd February 1950, and reliance should have been placed on that agreement and effect should have been given to it. Under this agreement eight persons (the defendants) are lessees and they are bound to pay rent at the rate of Rs. 4,000 per mensem and bound to abide by other conditions of the agreement.

19. The decision of this appeal depends on the determina tion of the question whether Nurullah was a tenant in respect of the premises in dispute under Mst. Havabai, or he was only a licensee or a trespasser. If it is held that he alone was the tenant in this premises as contemplated by section 2 (7) of the Karachi Rent Restriction Act, 1953, and a tenancy was in existence in his favour,' then the suit for ejectment would not be competent to the plaintiff without the Rent Controller's certificate. The suit as instituted would become liable to dismissal.

20. For the purpose of that Act ".tenant" h has been defined in section 2 (7) of the Act, and the definition runs as follows :‑ "2 (7) `tenant' means any person by whom or on whose account rent is payable for any premises, and includes every person from time to time deriving title under a tenant and also every person remaining in possession of the premises leased to him after the determination of the lease with or without4the consent of the landlord."

21. We have to determine from the circumstances, of the case whether by any arrangement, oral or written, Nurullah is a person by whom or on whose account rent is payable for the premises in dispute If it is once discovered that he was let into possession by the landlord, and for his possession rent is payable by him to the landlord, he would fall. within the ambit of the definition, and would be within the protection of the Karachi Rent Restriction Act, 1953.

22. Nurullah's defence in this case was that he was 'a tenant in respect of this building, was let into possession as such by Mst. Havabai, the landlady herself, and has in fact paid a part of the rent to her. He claimed to be in possession under the deed of Provisional Lease dated 26‑9‑1949 as tenant in his own right and not to be liable to ejectment. With respect to the Agreement of 3‑2‑1950, he said that it was never implemented and was not acted upon.

23. We have examined the relevant documents and have also perused the evidence, and are in agreement with the opinion of the learned trial Judge that a lease was ‑in fact created in Nurullah's favour by Mst. Havabai under the deed of 26‑9‑1949, Exh.

48. In this deed, there is no mention of any other lessee, nor is there anything in it to show that Nurullah was to hold the lease on behalf of any partnership. The document describes itself as "Deed of Provisional Lease". In the body of the document, with respect to this property, it has been said :‑ "That the said property or the demised premises and things described in the said Schedules I and II to the said Deed of Lease is hereby provisionally demised unto the Lessee .." By describing Nurullah as a `lessee' and the premises as `demised premises', and by fixing the rent for it at Rs. 2,500 per month, the document can be said to be nothing but a deed creating a tenancy in favour of Nurullah. This document, on its own strength, is capable of, creating an influence of tenancy in Nurullah's favour.

24. But there is further evidence of this inference in his favour in another document, (Exh: 50). On 15‑2‑1950, the Attorney of Havabai wrote a letter to Nurullah stating that the Custodian had awarded possession of the premises to her, and he should immediately take possession of it under the deed of 26‑9‑1949. It says " You can immediately take actual possession of the premises according with the Provisional Agreement of Lease dated 26th September 1949 .."

25. Three rooms of this building were in the possession of one Yacoob and in relation to them, it was said that they would also be placed in his possession. On 20th February 1950, Abdul Rahim, Attorney of Havabai, addressed another letter to Nurullah with respect to these 3 rooms, and said: " ..I am glad that I can today put you in possession under my agreement over the entire premises agreed to be let out to you. This is to confirm delivery of possession to you just now."

26. There are also certain admissions by Mst. Havabai, her counsel and her Attorney Abdul Rahim in support of tenancy in Narullah's favour. These have been brought on the record to show that these buildings have been admitted to have been let out to Nurullah alone as tenant. The first of these admissions is in an application by Abdul Rahim, Attorney of Hawabai, addressed to the Rehabilitation Commissioner on 31‑12‑1949 for permission to run the cinema business. In paragraph 5 of this application he stated that he had spent enormous amounts of money on the repairs of the roofing of the said building and has given lease of it to Nurullah. In para. 5 of the application it is said : " ....being unable to spend more on it as also being deprived of rent, I was constrained to give a lease of the said‑building to one Nurullah on 26‑9‑1949 casting upon him the responsibility of doing at his own expense the remaining necessary repairs and all other things necessary for starting a cinema such as furniture, fixtures, electric fittings, decoration, painting, plastering, etc."

27. In her revision application to the Custodian, which was presented to him on 18‑1‑1950, Mst. Havabai in para. 6 of the grounds of revision, has stated as follows : ‑ " ..The applicant on determination of the lease has re‑let the premises to Mr. Nurullah, Hamid Building, Bunder Road, Karachi."

28. Again in his affidavit dated 27‑2‑1950 presented in the Chief Court of Sind, Karachi in a suit (No. 96 of 1950) instituted by one Yacoob Sadat against Mst. Havabai for the possession of the same building, which he claimed as a joint lessee with Hariram Rewachand, the Attorney of Havabai, Abdul Rahim, stated in paragraph 14 : ‑ "She (i e., Havabai) has already let out the ,Cinema to Mr. Nurullah."

29. In another affidavit given by the same Abdul Rahim in the same case on 16‑5‑1950, he stated in para. 9 :‑ "The plaintiff` (that is Yacoob Sadat) has incorrectly alleged that lie is not aware that the cinema building has been already let out to Mr. Nurullah."

30. These admissions have been proved and have not been satisfactorily explained away by their makers. From the Deed of 26‑9‑1949, the letter of 15‑2‑1950 and from these written admissions, it is abundantly clear that a lease was created in Nurullah's favour in respect of these premises on payment of a rent of Rs.2,500 per month, and he took possession of the premises on 15‑2‑1950 as a tenant.

31. But the learned counsel for the appellant contended that the Provisional Lease Deed dated 26‑9‑1949 cannot be admitted in evidence and cannot be relied upon for the creation of a tenancy. It was an unregistered document creating a lease for a period of more than one year, and required registration. It has not been registered and: is not admissible in evidence for want of registration.

32. The answer to this argument is that, no doubt the document cannot be admitted for creating a lease, but is admissible for disclosing the character of Nurullah's possession over the premises in dispute. It can be relied upon to show that Nurullah was in occupation of the premises in his capacity as a tenant or as a lessee. There are now a large number o authorities in support of the view that the documents inadmissible in evidence for want of registration, can be admitted and relied upon for collateral purposes, which includes the purpose of ascertaining the character of a person's possession over the property. The Deed of Provisional Lease dated 26‑9‑1949 is no doubt not admissible to create a lease in Nurullah's favour, butt it is admissible to show that he was in possession of the premises as a tenant on payment. of rent of Rs. 2,500 per month.

33. That he was 'in possession of this property as a tenant on payment of rent is also ascertainable from the letter written by Havabai's Advocate on 15‑2‑1950 (Exh. 50) in which he admitted to have placed Nurullah alone in possession of this pro perty as a tenant, in terms of the lease deed dated 26th September 1949. Both the documents are admissible for ascertaining the character of Nurullah's possession. over the premises. (See 46 C W N 419, A I R. 1930 Pat. 20 , and 530, A I R 1940 Pat. 498 and 45 I C 217). The perusal of these two documents discloses the character of Nurullah's possession as that ,of a tenant. From this evidence, which is documentary and which cannot be rejected, tenancy in favour of Nurullah is abundantly clear.

34. The other contention of the learned counsel for the appellant was that a lease in fact was created by an oral agree ment in favour of 7 persons in the Gymkhana, and thereafter the Deed of 26‑9‑1949 was executed in favour of Nurullah, only, and he, as a co‑partner, held the property as lessee on behalf of his seven other partners. He cited I L R 31 Mad. 45 for this view. This contention cannot be accepted for the simple reason that the evidence in support of it is the oral word of Abdul Rahim, Attorney of the plaintiff, against which there are written documents and written admissions of the plaintiff and her agent. In the Provisional Lease Deed of 26‑9‑1949, in the letter of 15‑2‑1950, and in the admissions made in the applications and affidavits, lease in favour of Nurullah alone has been admitted. There is no mention of partnership anywhere. We have been asked to accept partnership of 8 persons under the Deed of 26‑9‑1949 on the statement of Abdul Rahim alone, That statement is against his own written admissions, and cannot be accepted. The first point that the lease be deemed to have been created in favour of 8 persons, has no fore at all.

35. The second point urged is that the lease is being claimed by Nurullah under an unregistered document of 26‑9‑49 and he does not legally acquire any tenancy under it. His possession is that of only a licensee, and as a licensee, he can be ejected without the Rent Controller's certificate. For this view, he sought support from A I R 1943 All. 279.

36. As against that, it has been contended by the learned counsel for the respondent that tenancy can be inferred from unregistered documents, and for this view he has relied on the following cases :‑ (1) A I R 1936 Oudh 102 (Janki v. Kanhaiya Lal.) (2) A I R 1925 Cal. 1171 (Ramchandra Agarwala v. Syameswari (3) A I R 1930 Pat. 20, and (4) A I R 1940 Pat. 498.

37. We are of the opinion that the Deed of 26‑9‑1949 and the letters of 15‑2‑1950 and 20‑2‑1950 are admissible in evidence to show in what capacity Nurullah has been in posses sion of the disputed premises. These documents show that the character of his possession words that of a tenant. On the language of these documents, he was in possession of the premises as a tenant on payment of rent. He, on the strength of these docu ments, falls within the definition of `tenant' as given in section 2 (7) of the Karachi Rent Restriction Act, 1953. He is neither a licensee nor a trespasser, but a tenant at will, ejectible without notice required under the Transfer of Property Act.

38. With respect to the contention that the agreement of 3‑2‑1950 superseded the Deed of Provisional Lease dated 26-9‑1949, and created a tenancy in favour of 8 persons men tioned in that agreement, on payment of rent of Rs. 4,000 per month, we are‑of the opinion that that agreement has not superseded the contract of 26‑9‑1949. The Deed of 26‑9‑1949 was a Deed of Provisional, Lease, and was a complete contract. Under that contract, Nurullah was let into possession as tenant. The document of 3‑2‑1950 was only an agreement, and under D this agreement a partnership had to be brought into existence, which was ‑ not done. Under that agreement, tenancy was to be created in favour of that partnership on payment of a rent of Rs. 4,000 per mensem. That agreement was not pursued and was not acted upon because no partnership was created. It was a conditional agreement and lapsed for want of implementa tion. It became a Waste paper and could not form the foundation of any right in any person.

39. Apart from this that Agreement of 3‑2‑1950, being an agreement only, cannot supersede a contract. No novation of the contract of 26‑9‑1949 by the agreement of 3‑2‑1950 has taken place at all. Under section 62 of the Contract Act, which E was pleaded in this behalf, to constitute a novation of a previous complete contract, the subsequent arrangement in super session of the first should also be a complete contract, and not an agreement:

40. Section 62 of the Contract Act reads as follows :‑ "

62. If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed."

41. Here we have a complete contract of 26‑9‑1949 between Nurullah and Havabai. That contract can be super seded by another contract, if it is between the same parties, i.e., between Havabi and Nurullah. But we have, instead of a subsequent complete contract, only an agreement, and that too between different parties, Havabai on one side and Nurullah and six others on the other side. There is no novation of contract, in 'the meaning of section 62 of the Contract Act, in this arrangment., The learned counsel for the appellant on this point cited Gurandittu Mal v. F. O. Labhu Ram (A I R 1936 Lah. 476), which has no application. This point is also decided against the appellant. In that case, there were two contracts between the same parties.

42. We are of the view that Nurullah is a tenant in respect of these premises. Tenancy in his favour can be inferred from the Lease Deed of 26‑9‑1949, the letters of 15‑2‑ i 950 and 20‑2‑1950, and the admissions of the plaintiff and her attorney and counsel. To those documents, we can refer for ascertaining the nature of Nurullah's possession, and ,for his liability for payment of rent. Those documents confer on him the status of a tenant as defined in section 2 (7) of the Rent Restriction Act, 1953.

43. He is no doubt a tenant at will, as he holds tenancy under an unregistered deed, and could be ejected without notice under the provisions of the Transfer of property Act. But as section .10 of the Karachi Rent Restriction Act imposes limitation upon the recovery of possession, by the landlord, from a tenant at will, who is ready and willing to pay rent, no ejectment decree can be passed against Nurullah without a certificate from the Rent Controller under section 10 (2) of the Act. The impediment against ejectment protrudes from the Rent Restriction Act, and not from the transfer of property Act. No such certificate has been obtained in this case. The suit for recovery of possession was barred under section 10 (1) of the Karachi Rent Restriction Act.

44. We are also of the opinion that the agreement of 3‑2‑50 did not supersede the contract of 26‑9‑1949. It was only an agreement, and dependant on a condition, which was not fulfilled. The agreement had to come into force upon the consti tution of partners is of eight persons. That condition remained unsatisfied and the agreement for want of fulfilment of that con dition was rendered void. Mst. Havabai's suit for ejectment of a tenant was correctly dismissed. ' 44 The second suit of 1955 was also correctly dismissed because in that suit the character of Nurullah as tenant. was challenged, as we have already found that Nurullah was a tenant in this property, the Rent Controller had authority to determine the fair rent under the provisions of the Karachi Rent Restriction Act. His decision was therefore, not without jurisdiction. That suit was also correctly dismissed.

45. For the reasons stated above, we see no reason to interfere in the two appeals before us and dismiss both with costs. A. H. Appeals dismissed.