1984 PLP 2336 (CLC)

‑‑Ss. 13 (2) & 15‑Ejectment on ground of subletting‑Concurrent finding of fact by two Courts below that there was no subletting- There being no perversity in findings, interference declined in second appeal. 1981 C L C 669 distinguished. ‑‑S. 13‑Ejectment of tenant on ground of subletting‑Merely because there was a Board of another concern having outside or some of its business was being carried on in said premises by its managing partner who was also partner of tenant, held, there was no justification to treat that concern as sub‑lessee. ‑‑S. 13 (2)‑Sub‑tenancy‑Mere entering into partnership with other person, held, did not amount to transfer of tenancy rights in premises unless such rights included in partnership. P L D 1968 Kar. 635 and P L D 1982 Kar. 188 rel. In this second appeal the appellants have challenged the order of 19th Civil Judge Third Class and Rent Controller, Karachi, dated 15th April, 1974, dismissing the application for ejectment and the order of the Second Additional District Judge, Karachi, dated 28th March, 1979 where by the appeal of the appellants was dismissed.

2. Messrs Lloyds Bank Limited had inducted Mr. Ahmed Saeed as a tenant in the disputed premises in 1948 and Mr. Ahmed Saeed was some time Sole Proprietor of Messrs Alliance Commercial Corporation, the opponent and some time he had entered into partnership arrangements with others. The ownership of the premises in question was changed in 1961 in favour of the National and Grindlays Bank Limited and during pendency of these proceedings the appellant No. 2 Messrs Union Bank Limited Middle East purchased the building in question and was impleaded as co‑appellant.

3. In 1970 the appellant No. 1 had filed an ejectment application against the respondent on the ground that it had sublet a portion of the premises rented out to them to Messrs Abid Industries and the board of Abid Industries was found hanging outside the premises and that subletting was unauthorised. The respondent resisted the application and denied the allegation as to subletting of the premises or a portion thereof to any one. They also took technical grounds with which we are concerned and in the alternative and without prejudice to their earlier contentions they took the position that in the circumstances the appellant was estopped from using the plea of subletting by reason of waiver.

4. One witness Mr. Tajamul Hussain was examined on behalf of `the appellant and he gave his evidence on the basis of file and stated that sign board of Abid Industries was fixed on the case premises and that the opponent has sublet the portion of the premises to Abid Industries. He was not in that branch in April, 1970. He stated that Abid Industries and Alliance Commercial Corporation are two different business organizations carrying business at different places. He produced telephone directory to show that the two respondents were having their telephone in the same business premises. He also filed a copy of extract of register of firms in respect of Abid Industries Exh. 10 which showed that till 1973 Abid Industries had their principal office of business at E/43, S. I. T. E. Karachi and that there was no other place than this. The entry was however, of 9th September, 1967. He however, admitted in cross-examination that he did not know about the terms and conditions of the lease between the applicant and opponent but he remembered that the respondent No. 1 could not sublet the premises. What is however important is that he admitted that he did not know the area of subletting which was sublet to the Abid Industries by opponent and that he had not seen the disputed premises and it was only on the basis of file that he could say that the sign board was fixed on the case premises. On account of telephone directory he stated that the two respondents have got separate business premises but again admitted that the address of the Abid Industries and the opponent are the same in the telephone directory. He had to admit that there was no separate demarcation of the office premises. He did not know as to how much rent was being realised by respondent No. 1 from respondent No.

2. He had admitted that he bad no personal knowledge of subletting and he could not say without seeing the file as to who came to know about the subletting.

5. The respondent No. I examined Ahmed Sated in his defence and he stated that he was the original tenant and Sole Proprietor of Alliance Commercial Corporation and that there was litigation between him and the Lloyds Bank. He stated that he started Abid Industries in the year, 1958 in the same premises and the office of Abid industries was in the premises in 1958. He produced six letters which had been addressed to Abid Industries at the disputed address from different persons including the Lloyds Bank between 1961 to 1983. He admitted that he had fixed sign board of Abid Industries in the case premises but it was year 1958. He stated that the appellant No. 1 was aware of the existence of Abid Industries and the board in the case premises. He asserted that he was not charging any rent from Abid Industries. He stated that the respondent No. 1 did not object to the existence of Abid Industries before the notice Of 1970. He stated that he had started Abid Industries himself but took his brother‑in‑law Nairn Arshad as partner and he used ' to manage the Abid Industries in the case premises. In cross‑examination he maintained that the rent was paid from the Alliance Commercial Corporation. He did not remember the name of officers who were in knowledge of existence of Abid Industries in the case of premises. He stated that the books of account of Abid Industries and Alliance Commercial Corporation were maintained separately. He denied that there was any agreement of Abid Industries regarding the usage of case premises. He denied that both the firms show office expenses. He stated that 8 to 10 staff members were working in the Abid Industries.

6. The findings in respect of there being no sub‑tenancy between the two respondents are concurrent by the two lower Courts below and I have read the evidence with Mr. Muhammad Naeem in order to find out if there was any perversity in the findings of the lower Courts. But I have not been able to find any perversity in those findings.

7. The main plank of Mr. Muhammad Naeem's arguments was that once respondent No. 1 had admitted that there was some other entity present on the premises then it was for them to explain the whole situation and unless and until they did, it should be inferred or at least presumed that the other person namely Abid Industries had been inducted as sub‑tenant in the premises. He relied upon 1981 C L C 669 where one of the learned Judges of this Court had observed that once landlord had proved that somebody else was using the rented premises either exclusive or jointly with tenant then the burden shifts on the tenant to explain the relationship between him and user of tenement. In that case his Lordship, in the circumstances of that case, had come to the conclusion that the premises had been sublet to his father‑in‑law by the tenant in view of the fact that the father‑in‑law was carrying on the business a homeo pathic practice therein. However, in that case it was not made clear whether the tenant was completely out of possession or not and the explanation of the tenant that his father‑in‑law was carrying on business on behalf of son of the tenant was disbelieved. The present case however, is quite different from the one cited inasmuch as the tenant namely Alliance Commercial Corporation are having their own offices in the said premises and the owner/partner of Alliance Commercial Corporation Mr. Ahmed Saeed is also the managing partner of Abid Industries. And he has made it very clear that he is not charging any amount of rent from Abid Industries and even the witness of the appellant has admitted that there was no demarcation of the business in the premises between the two. Consequently the position has been sufficiently explained by Mr. Ahmed Saeed and there is no justification to treat Abid Industries as, sub‑lessee only because their board is hanging outside or some of their business is being carried on in the said premises by their managing partner, who is the partner of the tenant and in fact he was the person who had been offered the tenancy of these premises originally in 1948. In P L D 19f8 Karachi 635 a learned Judge of this Court had held that creation of interest or parting of possession in immovable property is not to be readily construed if the facts can be held to be consistent with some other relationship or arrangement. In that case his Lordship had held that if tenant of a shop had entered into partnership with others and that partnership deed had provided that on dissolution the other partners' were to vacate the premises without making any claim thereto then the shop, in the circumstances, had not been brought into firm. In the present case we have a definite statement from Mr. Ahmed Saeed that there was no agreement between the partners of Abid Industries regarding usage of case premises and it is, therefore, obvious that the case premises had not been brought into partnership of Abid Industries. There is nothing on record to controvert the statement of Mr. Ahmed Saeed in that respect. In fact the appellants have completely failed to prove in any positive manner that there was really a subletting of the premises. In P L D 1982 Karachi 188 (189) another learned Judge of this Court had held that mere entering into partnership with other persons does not amount to transfer of tenancy right in the premises. With respect I agree with the same.

8. I am of the view that the appellant has not been able to prove the sub‑tenancy and that sub‑tenancy cannot be inferred in the circumstances of the case and, therefore, this second appeal is found to be without merit and is hereby dismissed. M.B.A. Appeal dismissed.