P L D 2005 Karachi 30 (PLP)

The learned Rent Controller decided Issue No.1 in favour of petitioners/tenants holding that since averment of Petitioner No.2 in his affidavit in evidence that the rent for July. 1997 was tendered to respondent No. 1, 2/3 times but she (landlady/Respondent No. 1) refused to accept the same and when the money order in respect of the same was too, refused to be accepted, he started depositing rent in Court in Misc. Rent Case No. 1473 of 1997 could not shaken in the cross-examination So far, issue with regard to subletting the said premises to petitioner No.2, the learned Controller decided the same in favour of respondent No. 1 (landlady) holding that petitioner No. 1 sublet the said premises to petitioner No.2 under the garb of Partnership Agreement. The petitioner filed First Rent Appeal, which was dismissed by the learned IIIrd Addl. Sessions Judge Karachi South holding that since there is an admission on the part of the petitioners regarding the Agreement of Partnership according to which the partnership business was to be carried out in the said premises, Rent Controller was justified .in holding that there was subletting of the tenement in question. The petitioners have now challenge the propriety and legality of the above order of the learned IIIrd Addl. Sessions Judge passed on 25-10-2003. I have heard Mr. Jamil-ur-Rehman, learned counsel appearing on behalf of the petitioners, Mr. Muhammad Siddique Khatri, learned counsel appearing on behalf of Respondent No. 1 and have also gone through the record and case-law, cited at the bar. It has been contended by the learned counsel for the Petitioners that the judgments of both the two Courts below are based on presumption inasmuch as the learned Rent Controller as well as learned IIIrd Addl. Sessions Judge erroneously presumed that during the partnership the Tenancy rights of petitioner No. 1 will be effected while in clause (4) it has been specifically stipulated that the right of tenancy of petitioner No.1 will not be effected and he will remain tenant there. It has, further, been contended that perusal of clause (4) reveals that the tenancy right and possession of petitioner No. 1 has been protected. It has, also, been contended by the learned counsel for the petitioners that both the. Courts below while taking into consideration clause (3) of the said Agreement of Partnership have wrongly presumed that Petitioner No. 1 had parted with the possession of the said premises whereas clause (3) of the said Agreement specifically mentions that the partnership agreement will be for only two years and thereafter petitioner No.2 will have no concern to the said premises and it will be exclusively in possession of petitioner No.

1. It has, also, been contended by the learned counsel that perusal of clause (10) of the said Partnership Agreement reveals that in every circumstances the party of the First Part (Petitioner No. 1, herein) shall remain possessor tenant/Pagridar of the office (the said premises) and shall reserve all possessing rights and the party of the Second Part (petitioner No.2 herein) shall not claim or reserve possessing rights. It has, therefore, been argued that petitioner No. 1 was always in possession of the said premises and not for a single day he had given exclusive possession to the petitioner No.2. It has, further, been contended that perusal of the cross-examination of the husband and attorney of the applicant namely, S.M. Javaid who had deposed that respondent No. 1 herself heard that petitioner No. 2 was paid Rs.1,600 as rent to petitioner since July, 1997 but respondent No. 1 was not put in witness box to utter these words, hence it is clear that respondent No.1 was in the knowledge of running business by both the petitioners but she remained silent for about two years and filed this Rent Case in September, 1999. The learned counsel has relied upon the cases of Grindlays Bank-Limited and another v. M/s. Alliance Commercial Corporation (1984 CLC 2336) and Mst. Sayyeeda Khatoon v. M.A. Agha (1990 MLD 1715) in support of his contentions. On the other hand, learned counsel for respondent No.1 has contended that the petitioner No. 1 handed-over the premises to petitioner No.2 without consent of respondent No.1 on rent. He has referred to the Partnership Agreement (Annexure A-2) and has contended that petitioner No. 1 was only Sleeping Partner and., therefore, he, by creating interest of other partners in the premises without consent of the respondent No.1/landlord have committed violation of section 15(2) (iii) (a) of the Ordinance. It has, also, been contended by the learned counsel that handing over possession is of a wider implication than mere subletting. In case of a partnership firm is a tenant, then all the partners can claim the tenancy rights in proportion of their share. Each partner is deemed to be in possession of the demised property. Once a proprietary firm is changed into a partnership firm then all the partners have right, title and interest in the tenancy, goodwill, business and assets according other share unless otherwise provided in the partnership deed. It has, therefore, been argued that section 15(2) (iii) (a) of the Ordinance provides that the Controller shall make an order directing the tenant to put the landlord in possession of the premises, if the tenant without the written permission of the landlord, has handed over the possession of the premises to other person and since it has been established on record that petitioner No. 1 sometime before institution of the case had handed over possession of the said premises to Petitioner No.2 and is realizing rent from him. The learned counsel has relied upon the cases of Khalilu-ur- Rahman v. Mst. Nargis Begum (1993 CLC 246), Hassan Abbas Zaibule v. Abdullah (1994 CLC 555) and Muhammad Subhan and another v. Mst. Bilquis Begum and 3 others (1994 SCMR 1507)(2) in support of his contentions. I have considered the arguments of both the learned counsel appearing on behalf of respective parties, perused the record and have also gone through the case-laws cited at the bar. Section 15(iii)(a) of the Ordinance provides that ejectment can be granted if the tenant has, without the written consent of the landlord, handed over the possession of the premises to some other person and therefore if it is proved that possession has been handed over to some other person then the tenant will be liable to be ejected. Handing over of possession means that the rented premises is occupied and used by a person other than the tenant. It will not include cases where business is being run by any attorney or any partner without having any interest in the tenancy itself. On an overall assessment of evidence on this issue Respondent No. 1 has failed to establish that Petitioner No. 1 had handed over possession to any other person. In this context, it will be appropriate to reproduce Para-4 of the Partnership Agreement (Annexure-2) which reads as under: clearly reveal that the share in profit and losses of both the partners shall be 50 % 50 % Para-4 reads as under: "

4. The share in profit and losses of both the partners shall be 50 % -50 %. That the Party of the First Part having no funds and only valuable tenancy rights bearing Office No.21, Rehman Chambers, Plot No.7, MR-7, Adamji Dawood Road, Karachi and will not contribute any money in the aforesaid business whereas the Party of the Second Part will contribute capital amount and however it is agreed that in case of dissolution of firm, the right tenancy of Party of the First Part will not effect and will remain tenant thereof." The contents of the above clause clearly reveal that the share in profit and losses of both the partners shall be 50%-50%. The Party of he First Part (petitioner No. 1 herein) having no funds and only valuable tenancy rights in respect of the said premises and will not contribute any money in the aforesaid business whereas the Party of the Second Part (petitioner No.2 herein) will contribute capital amount. However, it was also agreed that in case of dissolution of firm, the right of tenancy in favour of petitioner No.1 will not be effected and will remain as tenant of the said premises. In the case of Hassan Abbas Zaibule (supra) evidence on record proved that tenant had partnership with different people and he used to remain abroad for more than five months in a year and in his absence business was mostly run in premises in dispute by his partner without permission or consent of landlord. It was, therefore, held that once a landlord proved that somebody else was using premises in dispute or running business either exclusively or jointly with tenant, burden of proof would shift on tenant to prove that partnership did not constitute subletting and since tenant had failed to discharge burden as neither he produced partnership deed to prove that his partners were not sharing tenancy rights in premises nor partners had come forward to subject' themselves to cross-examination and tenant having failed to explain as to under what circumstances his partners were using premises, the conclusion of Rent Controller that tenant had handed over possession of premises in question to partnership firm without consent and permission of landlord was approved. In the case of Khalil-ur-Rehman (supra) the evidence on record clearly indicated that tenant sometime before institution of ejectment application had handed over possession of demise premises to sub-tenant and was realizing rent from him having purchased property in another locality and had shifted, therefore, it was held that factum of subletting of property by tenant was proved in the circumstances. In the case of Muhammad Subhan & another (supra), it was held by the. Hon'ble Supreme Court that: "... ... Handing over possession is of a wider implication than mere subletting. In case a partnership firm is a tenant, then all the partners can claim the tenancy rights in proportion of their share. Each partner is deemed to be in possession of the demised property. Once a proprietary firm is changed into a partnership firm, then all the partners have right, title and interest in the tenancy, goodwill, business and assets according to their share unless otherwise provided in the partnership deed. The petitioners have not filed partnership deed from which it could be ascertained that although the firm is a partnership firm, yet the right of tenancy was preserved in the name of petitioner No. 1 and other partners did not have any right in the tenancy. In these circumstances, petitioner No. 1 has created interest of other two partners in the disputed premises who shall be deemed to be in its possession as partners." But the facts of the case, in hand, are distinguishable to the facts of the cases, cited above. In the present case, petitioners, at the very initial stage, along with their written statement had filed Partnership Deed, para-4 of which clearly preserves the rights of petitioner No. 1 (the actual tenant) and there is nothing mentioned in such Partnership Deed that in case of dissolution of firm, the right of tenancy of petitioner No. 1 will be effected and he will remain tenant of the said premises. In the case of Saeeda Begum v. Shameem Ahmed (1994 SCMR 791), it was held as under: "Section 15(2)(iii)(a) of Sindh Rented Premises Ordinance, 1979 prohibits handing over possession by a tenant to some other person without written permission of the landlord. It does not speak of creation of sub-tenancy or factum of subletting. The above provision is wider in its import inasmuch as it will be attracted to if a landlord proves that factually his tenant has handed over possession to another person without his written consent and that the tenant is no longer in possession. The above initial burden is on the landlord and once he discharges it, the burden will shift to the tenant to prove that he has not handed over possession of the premises and that he is still in physical possession. In order to discharge the above burden of proof, the tenant may produce partnership deed, certificate of registration of the firm, account book, income-tax assessment orders etc ... ......... ......... ...... But if a tenant takes a working partner or a financial partner bonafidely and retains the physical possession of the premises inasmuch as he sits in it for carrying on business, the provision will not be attracted to. Simplicitor production of a partnership deed and a certificate of registration of firm will not be sufficient to rebut the factum that the tenant has parted with the possession of the premises in case it is proved by the landlord that someone else other than the tenant is in physical possession and using the tenement." Similarly, in the present case, there is only an assertion of the husband and attorney of the respondent No. 1 namely S.M. Javaid who had deposed that Respondent No. 1 herself heard that petitioner No. 2 was paying Rs.1,600 as rent to petitioner No. 1 since July, 1997. However, Respondent No. 1 was not put in witness box to utter these words, hence it is clear that respondent No. 1 was in the knowledge of running business by both the petitioners but she remained silent for about two years and filed this Rent Case in September, 1999 in rebuttal whereof petitioners have, themselves, filed a Partnership Deed clause (4) of which clearly shows that the tenancy rights will be preserved by petitioner No. 1 in case of dissolution of firm. Accordingly, I am in full agreement with the observations of the Hon'ble Supreme Court of Pakistan in the case of Saeeda Begum (supra) that if a tenant takes a working partner or a financial partner bonafidely and retains the physical possession of the premises inasmuch as he sits in it for carrying on business, the provision will not be attracted to. In the circumstances, I allow this Constitutional petition, set aside the orders passed by both the Courts below i.e. Courts of IVth Senior Civil Judge/Rent Controller Karachi South and IIIrd Additional District Judge Karachi South dated 21-9-2000 and 25-10-2001, respectively. Consequently, ejectment case filed against the petitioners is dismissed. C.P. S- 745/2002 stands disposed of. S.A.K:/M-139/K Petition allowed.