1988 PLP 1418 (MLD)

This appeal under section 21 of the Sind Rented Premises Ordinance, 1979 is filed against the order of the Rent Controller dated 13-9-1984 whereby he allowed the ejectment application riled by the respondent on the grounds of default in payment of rent and subletting. The respondent instituted ejectment case against the appellant alleging three grounds namely, default in payment of rent from September, 1978, subletting of shop by appellant No.1 to appellant No.2 and personal and bona fide requirement of the respondent in respect of the shop in dispute. The application was resisted by the appellant No.2 as well as by appellant No.1, through his attorney Yousuf Hashim Bharoocha by filing a joint written statement. The learned Rent Controller allowed the ejectment application only on the ground of default in payment of rent and subletting of the premises by the appellant No.1 to appellant No.2. Learned counsel for the appellants contends that the learned Rent Controller did not consider the evidence properly in holding the appellants as defaulter m payment of rent. It is alleged by the learned counsel that from the original receipts for deposit of rent in Miscellaneous Rent Case No.4440/78 it is quite clear that there was no default in payment of rent by the appellants. Alongwith the memo. of appeal the appellants have produced original receipts of deposit of rent in Miscellaneous Rent Case No.4440/78 and at the hearing of this appeal Mr. S. M. Af7a1, learned counsel for the appellants also placed on record before me two applications made by the respondent for withdrawal of rent deposited in Miscellaneous Rent Case No.4440/78. The authenticity of these documents are not disputed by the learned counsel for the respondent and after going through the same it is quite clear that there was no default on the part of the appellants in payment of rent as rent from September, 1978 was regularly deposited by the appellant in Court in Miscellaneous rent case. However, with regard to the second ground of eviction the learned Rent Controller rightly reached the conclusion that there has been subletting of the premises by appellant No.1 to appellant No.2. The learned counsel for the respondents contends that the partnership deed produced in the case clearly. establishes that the tenancy in respect of the premises exclusively belongs to appellant No.1 and that the appellant No.2 was in no way concerned with the tenancy right in the premises. On the basis of these stipulations it is contended by the learned counsel for the appellants that there could not have been subletting of the premises by the appellant No.1 to the appellant No.2. In support ( f his contention learned counsel has referred to the cases of Motal Bai v. Abdul Aziz and others P L D 1968 Kar. 635, Muhammad Yousuf and others v. Adam Ali and others 1981 C L C 596 and Grindlays Bank Ltd. v. M/s. Alliance Commercial Corporation 1984 C L C 2336. Learned counsel for the respondent on the other hand contended that the evidence before the Rent Controller clearly established that the appellant No.1 has left the country by about the time the alleged agreement of partnership was entered into between the parties and it has also come in the evidence that the business in the premises is now exclusively run by appellant No.2. On the basis of above established facts it is contended by the learned counsel for the respondent, the Rent Controller rightly reached the conclusion that the premises has in fact been let out by the appellant No.1 to appellant No.2. To support his contention the learned counsel has relied on the case of Muhammad Yousuf v. Moosa and another 1987 C L C

981. The point which requires consideration in this case is whether on account of stipulations made in the partnership deed dated 20th February, 1979 to the effect that the tenancy in the premises will continue to be enjoyed by the appellant No.1 there was or not enough evidence to reach the conclusion by the Rent Controller that there has been a subletting of the premises by the appellant No.1 to appellant No.2. The application for eviction was fled by the respondent under section 15 of the Sind Rented Premises Ordinance, 1979 which provides that where a tenant has without written consent of the landlord handed over possession of the premises to some other person he is liable to be evicted from the premises on this ground. In support of his case the respondent examined himself and other witnesses before the Rent Controller and categorically stated that the appellant No.1 has vacated the premises and handed over the same to the appellant No.2 who is running business under the name and style of Arshad Motors. In rebuttal of the above evidence the tenant/appellants examined Muhammad Arshad, appellant No.2 and Yousuf Hashim Bharoocha, the uncle/attorney of appellant No.1. The partnership deed is between appellant No.1 and Muhammad Arshad. It is significant that this partnership deed provides in paragraphs E, F and H that the control and management of the business in the premises exclusively rests with the appellant No.2. The responsibility for keeping and maintaining the account is also with the respondent No.2 paragraph K of the partnership deed provides that on death of any of the partner the partnership shall not be dissolved but the surviving partner shall be entitled to continue to carry on business according to his share. This is a departure from the provision of the Partnership Act which provides that upon death of any of the partners the partnership shall stand dissolved and the assets of the partnership will be distributed among the partners in proportion of their shares. Again in paragraph L of the partnership deed it is mentioned that on dissolution of partnership by dissolution or otherwise a general account is to be taken of all the assets including the goodwill of the business of the firm with the benefit attached and after accounting for the debts and liabilities the net assets are to be divided between all the partners as provided in clause 2 above. It is significant that no exception has been made to the tenancy right in this clause of partnership nor it is stated that the tenancy in the premises shall stay outside the assets of the firm. Although in clause J of the partnership deed it is provided that after dissolution of the partnership the second party shall vacate the premises over which only the first party has tenancy right but this provision cannot have the effect of excluding the tenancy right from the general assets of the company as shown in paragraph L of the partnership deed. Apart from it the appellant No.2 who was examined as a witness on behalf of the appellants in the rent case in his cross-examination stated that he was not aware that the partnership is registered or not and further admitted that he was inducted in the premises by the appellant No.1. He also stated that he was not aware if the appellant No.1 was paying income-tax or not or that he is maintaining the account but there is no joint account of the firm. He stated that he is doing business in the premises from 1979 and that the appellant No.1 is in U.S.A. for the last about 2/3 years. He also stated that he is depositing rent in Court in respect of the premises in suit. The other witness namely Yousuf Hashim Bharoocha who was examined as attorney of appellant No.1 also in his cross-examination admitted that there is no bank account and there is nothing to show partnership except the partnership deed annexed with the affidavit marked B'. After reading the partnership deed produced before the Rent Controller in the light of the statements of Muhammad Arshad and Yousaf Hashim Bharoocha, the two witnesses examined on behalf of the tenant in the case, there can be no other conclusion except that appellant No-1 has left the premises and has inducted appellant No.2 therein who is exclusively running the business therein. It is strange that appellant No.2 claimed to be a partner of appellant No. 1 but was unable to say whether the partnership is registered or not and that whether his partner appellant No.1 was paying any income tax in respect of the business. There is nothing in the evidence to show that any account in respect of profit and losses of partnership was maintained by the parties or the parties were ever assessed as partners by any authority although the business is run in the premises since 1979 as admitted by appellant No.2. In this state of evidence the Rent Controller rightly reached the conclusion that the appellant No.1 has handed over possession of the premises to appellant No.2 and that now appellant No.2 is carrying on business in the said premises. I accordingly uphold the order of the Rent Controller only on the ground of subletting of the premises. As a consequence the appeal is dismissed but there will be no order as to costs. The appellants are allowed four months' time to vacate the premises. AA./Q-14/K Appeal dismissed.