P L D 1967 Karachi 449 (PLP)

FARUQUI, J.- This Letters Patent Appeal is by the plaintiff whose suit for possession of the premises known as "Paradise Cinema building" and mesne profits was in effect dismissed by Qadeeruddin Ahmed, J. sitting on the Original Civil Side. The learned Judge after rejecting the claim for possession and mesne profits had decreed the suit for Rs. 6,104 which was the amount of the arrears of rent.

2. The material facts are these:‑The premises known as Paradise Cinema building bearing survey No. 271 situated on Victoria Road, Karachi originally belonged to one Naraindas Mirchandani who granted a lease of it for a period of 10 years commencing from 1‑9‑43 in. favour of the defendant No. 1, since deceased and now represented by his heirs. The registered deed evidencing this base is Exh.

6. The said Naraindas Mirchandani sold the said land and building to the plaintiff Boman Abadan Irani and one. Jamshed Minocher by a registered sale deed dated 2nd February 1949, Exh. P/ 29, for a consideration of Rs. 5,00,

000. This sale was confirmed by the Custodian of Evacuee Property on 13‑1‑50 as in the meantime the original owner had migrated to India. The other joint vendee Jamshed Minocher relinquished his rights into the said Paradise Cinema building and land on .15‑2‑1950 and he thereafter ceased to have any right or interest in the said property. The first defendant K. S. Jehangir J. Mobed, hereinafter to be referred as Jehangir, became a tenant of the plaintiff Irani, to whom the property had been sold, which property was the subject‑matter of the lease. The defendant Jehangir continued to hold the premises on the terms of the said lease. Clause 9 of the lease contained the following covenant:‑ "That the lessee shall not sublet the cinema building or any part thereof to any one without the written permission and consent of the lessor within the period of the lease which shall not be unreasonably withheld." On 9‑9‑52 a private limited company was formed, of which the subscribers were the defendant No. 1 Jehangir, his son Manek, J. Mobed, the latter's wife Mrs. Khoorshed Manek Mobed and Jehangir's daughter Mrs. Parin R. Bamboat. The capital of this company was Rs. 10,00,000 divided into 1,000 ordinary shares of Rs. 1,000 each. Of these 20 shares each were taken by Jehangir and his son Manek, J. Mobed and 12 shares each were taken by the two ladies. The Memorandum and Articles of Association are collectively marked Exh.

29. The certificate of incorporation is Exh. 20‑A. The name of this company was Paradise Theatre Ltd. which was made the defendant No. 2 in this suit. The first object of this company was to acquire and take over as a going concern cinema business which was then carried on in the federal capital area of Karachi by Jehangir and his son Manek. There were four such cinemas which were being run. These were Paradise Theatre, Picture House Theatre, Capitol Theatre and Mauripur Theatre. The first of these were located in the premises in question.

3. Clause 12 of the Articles provided that the company shall forthwith enter into art agreement with the proprietors of the aforesaid cinema business to acquire and .take over the above going concerns including existing contracts and agreements with all or any of their assets, liabilities, right, title, interest, etc. On the expiration of the lease which took place on 31st August 1953 the plaintiff Irani, after an unsuccessful approach to the Rent Controller under section 10 of the Karachi Rent Restriction Act, filed the present suit on 15th December 1953. The right to claim possession was urged on various grounds in the plaint, but it is only the ground of sub‑letting which has been pressed before us and was also mainly pressed before the learned single Judge on the Original Side. This is contained in para. 7 of the plaint which reads:‑ "That the plaintiff contends that the defendant No. 1 has on his own statements sublet the premises in suit to defendant No. 2 without the consent in writing of the plaintiffs as required by the terms of the lease . . . . . : '

4. Upon the pleadings a large number of issues had been framed but the main issue upon the decision of which the suit of the plaintiff for possession was dismissed is issue No. 5, viz., "Is defendant No. 2 a sub‑tenant of defendant No. 1 ?" This issue was tried by the learned single Judge along with issue No. 6 which referred to that part of the written statement in which it was claimed that the plaintiff was estopped from raising the plea of subletting. The learned Judge found against the defendants on this issue. Several other objections raised in the written statement, such as the bar of suit under section 10 of the Karachi Rent Restriction Act and the bar of sections 12 and 13 of the Administration of Evacuee Property Ordinance and similar other technical pleas raised by the defendants, were overruled by the learned single Judge. Amongst the findings adverse to the defendants none were questioned except that Mr. Dingomal appearing for the original respondent No. 1 Jehangir maintained in the alternative that the subletting was with the consent of the plaintiff and Mr. S. H. Hafeez appearing for the respondent No. 2, the Paradise Theatre Limited, contended that the suit was not competent without a certificate by the Rent Controller under section 10 of the Karachi Rent Restriction Act.

5. When this appeal first came before us for hearing a preliminary objection was raised on behalf of the respondents as to the jurisdiction of this Court in view of the provisions contain ed in section 13 of the West Pakistan Urban Rent Restriction Ordinance. However, in view of tote stand taken by the appellant's counsel with reference to this preliminary objection we recorded an order in which we said that in our opinion the determination of the preliminary objection would necessitate going into the facts of the case and for that reason it was desirable to hear the whole appeal and defer our judgment on the preliminary objection until the hearing of the appeal itself. This order was recorded on 20th January 1966. The case coming back to us we have now heard full arguments both upon merits as well as upon the preliminary objection.

6. On merits the contention of Mr. Lad for the appellant was that the defendant No. 1 Jehangir had sublet the premises to the defendant No. 2, the Paradise Theatre Ltd.; and in doing so he had violated the condition in the lease as contained in clause 9 of the lease deed and the plaintiff for that reason was entitled to the possession of the premises without a certificate from the Rent Controller under section 10 of the Karachi Rent Restriction Act. He urged that the finding of the learned single Judge that the defendant No. 2 was a licensee and not a sub‑lessee of defendant No. l was without any basis in pleading and in the absence of any issue on that‑point. The learned counsel after referring to the clauses in the Memorandum of Association of the Company and its Articles, the admissions made by Jehangir in his evidence and the cheques for payment issued after the company had taken over the concern, all of which showed that it had been issued by its Managing Director, Jehangir Mobed, contended that the lessee Jehangir had transferred the whole of his subsisting right, title and interest in the lease‑hold of the premises to the defendant No. 2 and thereafter he (Jehangir) merely acted as the Managing Director of the company with reference to this business and premises and no longer enjoyed possession or any dominion in his own right over the leased property after the company had taken it over. It was, therefore, urged that there was a clear breach of the condition restraining transfer as contained in clause 9 of the lease deed.

7. The learned single Judge dealing with this question which was the subject‑matter of issue No. 5 recognised the difficulty in which the defendant No. 1 had placed himself and observed that he was probably under the impression that the mere formation of a private limited company of members of his own family did not create a new entity. The learned Judge noted that this impression was clearly wrong and payment of rent by the newly created person did create complications. He then went on at considerable length dealing with the question of distinction between sub‑lease and assignment and observed that "a sub‑lease is a restricted transfer subordinate to the lease of the interest o: the lessee to the sub‑lessee. The element of transfer is common to sub‑lease and assignment but this common factor does not efface the distinctions that exist between a sub‑lease and assign ment of tenancy. If the facts proved do not constitute creation of sub‑lease, then there was no violation of clause 9 of the lease deed and no violation of the conditions of tenancy in terms of section 10 (1) of the Karachi Rent Restriction Act, 1953." He then went on to consider the contention of the plaintiff's counsel with reference to payment of rent directly by the defendant No. 2 and observed that the defendant No. 1 apparently did not see that the situation had been materially altered by the formation of a company. He, however, relied upon the circumstances that the business of the company belonged to the family and that defendant No. 1 was the pater familias. He, however, rejected the contention put forward by Mr. Dingomal for the defendant based upon the decision in the case of Chaplin v. Smith ((1926) 1 K B 198) and accepted the distinction because in this case the defendant No. 1 had not been shown to be doing any business of his own in the premises in suit. He added that "the value of intention and collective family interest need further examination against the background of law." The conclusion of the learned judge appears in the next para. 22 which he recorded thus:‑ "The facts of this case prove that the defendant No. 2 was a friend, if not more than a friend, of defendant No. 1; was permitted by defendant No. 1 to use the leased premises and to pay, rent from its own account for defendant No.

1. It is in evidence that there was no arrangement between the two in this regard. Would mere permission to pay rent combined with the permission to use the premises constitute the creation of a sub‑lease? Obviously it would not, because there was no transfer whatsoever of the interests of the lessee." Upon this view he decided issue No. 5 against the plaintiff and held that the defendant No. 1 was a lessee and defendant No. 2 was the licensee of the defendant No. 1.

8. Mr. Dingomal appearing for the defendant No. 1 started by submitting that he did not want to debate upon the question of distinction between sub‑lease and assignment because there was no assignment in this case. His contention was that in this case there had been no sub‑lease by the defendant No. 1 to the defendant No. 2 so as to cause the breach of clause 9 of the lease deed. He pointed out that there was no express provision either in the Memorandum of Association or in the Articles of Association or in the Articles showing that the lease‑hold rights were to be acquired by the company from the defendant No. 1 and urged that from the mere fact that a company had been formed which had taken over the business of the Paradise Cinema that such a business had in fact been taken over, the inference cannot follow that there had been a sub‑lease in favour of the defendant No.

2. He relied upon certain English authorities which we now propose to examine.

9. The first case is that of Peebles v. Crostewaite (13 T L R 198) decided on 6th February 1897. The judgment as it appears in the report of the Court of Appeal is of Lindley, L. J. and consists only of about 15 lines. The other Justices appeared to have agreed. This was an appeal from a decision of Mr. Justice Romer who had decreed the suit of the tenant Peebles. The question whether the premises had been sublet or assigned arose in this case in a peculiar way. The action was brought by the tenant Peebles and was continued after his death by his executors, the cause of action being that the landlord had effected substantial alterations in the premises which interfered with the right of way of the plaintiff. A defence was raised by the landlord that there had been a breach of the covenant in the lease relating to prohibition against assigning, under letting or parting with possession and for that reason the lease was terminated. The facts as they appear in the very brief report are that after Peebles' death his executors sold the premises and business to a limited company called A. M. Peebles & Sons Ltd. The stock was delivered to the company, which put its name up on the demised premises, which was registered as the office of the company. The property was not assigned to the company. On the construction of the agree ment. Mr. Justice Romer held that the sale so far as regarded this portion of the property sold, was not completed acid he further held that the executors had never parted with the posses sion of the demised premises. In appeal, Lindley, L. J, noted that when the executors had agreed to sell their business, including' the demised premises to a limited company they were advised that they should be careful else they would forfeit the property. Their solicitors informed them that they should not part with possession. The learned Judge upon the facts found that though the executors had let the company into possession they did not part with possession themselves and so long as it was true in fact that the lessees had not parted with possession. They had committed no breach of the covenant. It would, therefore, appear that the decision of the case turned upon a finding of fact that the executors had not parted with the possession of the property.

10. The second case is that of Chaplin v. Smith, again from the Court of Appeal. This case was cited before the learned Single Judge but he distinguished it upon the ground that the lessee was also doing his own business upon the premises and that it had not been shown in the present case that the defendant No. 1 had been doing any business of his own in the premises in suit. In this case also there was a restriction in the lease against subletting and assignment and the lessee had formed a company in which he had a substantial share. He had proposed to under let the premises and had sought the landlord's permission which the latter had declined. No further steps were then taken to assign the premises to the company and the lessee kept the control of it with himself and also kept the key of the premises in his possession. The same thing happened when a second company was formed which took over the business of the former company. In this transaction the lessee had expressly stipulated that he should remain in possession as actual tenant of the demised premises. It was also found that the lessee did business of his own as well as of the company on these premises. Bankes L. J. after examination of a number of cases including that of Peebles v. Grosthwaite observed as follows:‑ "The lessee of a double fronted shop with a door in the middle and a counter on either side, who has covenanted not to part with possession of the demised premises or any part thereof, may sanely agree to allow a licensee to carry on a business in one part while the lessee himself remains in possession of the whole premises and carries on his own business in the other part. In that case there is no parting with possession, and I see no distinction between that case and this." Scrutton, L. J. put the matter more succinctly. He started with a frank statement relating to the attitude of the Curt in cases of possession on forfeiture and then observed:‑ " In these cases the Court relaxes somewhat its usual upright attitude and leans away from the forfeiture. This explains many of the decisions." He then went on to consider the facts of the case and held that the lessee had neither underlet nor assigned the premises. He was constantly in the premises himself and kept the key of them. He did business of his own as well as of the company. He held that the lessee had merely allowed the company to use the premises while he himself remained in possession of them and concludes by saying: "In these circumstances the authorities bind us to say that he has not parted with possession of the premises or any part thereof"

11. The third case is that of Gian Singh & Co. v. Devraj Nahar and others ((1965) All E R 768) decided by the Privy Council upon an appeal from Malasia. In this case the tenant had taken two partners into his business and under the partnership deed the partners were to be entitled to the capital and property for the time being of the partnership and the goodwill of the business in equal shares. The capital of the partnership was to consist of the net value of the stock‑in‑trade, book debts and other assets of the business, less its outstanding liabilities, and the business was to be carried on at the premises or at such other premises or places as the partners might from tune to time agree upon. The deed contained no specific reference to the tenancy, nor any other indication as to what rights or duties any party should have with regard to it. The landlords claimed possession of the premises on the ground that, by assigning to the partnership, the tenant had broken his covenant not to assign or sublet the premises without the landlords' written consent which they had admittedly refused to give. Upon these facts it was held that though the premises were an asset to the business this fact had no bearing upon the question whether that asset was transferred to the partnership. The partnership deed could not to construed as constituting an assignment of the premises by the tenant and so there was no breach of covenant.

12. These English decisions no doubt would be of consider able assistance in understanding the principles governing the relationship of landlord and tenant but it must be recognised that is this country there is a statutory law which bears upon the subject and which is contained in the Transfer of Property Act wherever applicable. In other places there are local usages and customs. In addition, there are statutes which deal with rent laws and govern the relationship between landlord and tenant. Therefore, in deciding a case of this nature we must primarily rely upon these statutes and we cannot import all the notions of English law on the subject. For instance, in the cases cited above on the important considerations was whether there had been an assignment of the lease and upon an answer in the negative it was found that there was no breach of covenant. For the purposes of the present case we must refer to the Transfer of Property Act, section 108 (j) which provides that the lessee may transfer absolutely or by way of mortgage or sub‑lease the whole or any part of his interest in the property and a transferee of such interest or part may again transfer it. This, however, can be done only in the absence of a contract or local usage to the contrary. In the present case, such a contrary contract is to be found in clause 9 of the lease deed. Therefore, if upon the facts it may be found that there had been a sub‑lease, the fact that there was no assignment as understood in English law would not come in the way of holding that there was a breach of the covenant. It was held by the Privy Council in the case of Hunsraj and others v. Bejoy Lal Seal and others (A I R 1930 P C 59) that before resorting to English decisions for determining the relations of landlord and tenant it should be seen what the law of India is. After referring to the provisions of the Transfer of Property Act their Lordships concluded thus: "There is, therefore, no ground for the contention that in India sub‑lease for the unexpired residue of the term operates otherwise than as a sub‑lease." In this case the lessee, according to the lease deed, was expressly permitted to underlet the demised premises without obtaining the consent of the lessor. There was, however, a prohibition against the assignment and upon the lessees having executed a mortgage subletting the demised premises for the unexpired residue of the term of the lease the lessor brought the action for enforcing forfeiture on the ground of the breach of the covenant relating to assignment. Their Lordships held that the covenant against assignment was clearly subject to the express power to underlet and since all that the lessees had done in that case was to underlet, no question of forfeiture arose. The Privy Council reaffirmed this view in the case of Ram Kinkar Banerjee and others v. 5atya Charan (A I R 1939 P C 14) and held that there where a grantee of a lease transfers the whole of his term to the sub‑grantee on terms similar to the original lease such transfer operates by way of sub‑demise and not by way of assignment. This is precisely what has happened in this case as we shall presently show.

13. Now, let us examine the facts of this case to see whether there has been a subletting in this case. We have referred to the fact of the formation of the private limited company, viz., the defendant No. 2 on 9th September 1952 and the relevant clauses of the Memorandum of Association and the Articles. As we have pointed out the object of this company was to acquire and take over the going concern of the cinema business together with all its assets, right, title and interest including existing agreements, Jehangir who was the only witness in the case made the following statements in cross‑examination:‑ "The company was to take over 'as a going concern cinema business of the four theatres mentioned in clause 3 (1) of Memorandum of Association of company. The company did take over the business of the four theatres in pursuance of that provisions. I do not know the difference between acquisition and taking over but the company has done exactly as stated in clause 3 (1) of the Memorandum of Association. From the date of the registration of the company, I am drawing remunera tion from the company, viz., defendant No. 2, as its Managing Director. The remuneration is paid to me from the profits made by defendant No.

2. It is true that the premises in suit are used for cinema business by defendant No. 2 from the date of its registration. The premises, however, belong to me. It is true that the rent of the premises was paid by me through cheques after the registration of the company. The cheques were drawn on behalf of defendant No. 2 but were signed by me. The money came from the profits of the business. I signed the cheques as the Managing Director of the company, and not in my personal capacity. The money was paid from the business of the company. The money paid by cheques was not debited to my personal account. I had my personal accounts in other banks. There is an account in my own name. Four share‑hollers of the company have their accounts in the hooks of the company. This money was not debited to my account. The rent was paid from the account of the company from the dates of its registration. The rent was paid by the company with my consent." He further stated that he did not obtain the permission of the plaintiff in writing or orally for allowing the defendant No. 2 to use the premises because the defendant No. 2 consisted of his own family. After the formation of the company the documents on record show that every single payment was made by cheques drawn by the defendant No.

2. These cheques are Exh. A/1 to Exh. A/11. Clause 12 of the Articles of the Company provided that the Company shall forthwith enter into an argument with the proprietor of the four cinemas to acquire and take over the going concern including existing contracts and agreements and rights, title and interest. Neither of the defen dants have produced the agreement whereby the taking over took place. When such a taking over takes place by a company it is generally accompanied by such an agreement of taking over. If there was such an agreement it was not produced there must be raised an adverse inference against the defendant from it: If the agreement had provided that the company was merely to make use of the premises and that possession thereof would continue to remain with the defendant No. 1, the original lessee the position might have been different. But the agreement is not there. It was for the defendants to prove the nature of the relationship whereby the defendant No. 2 had taken over the running cinema concern. The only evidence which has been led upon this point is that of Jehangir who in the examination‑in‑chief stated that he was the Managing Director of the defendant No. 2 and that the tenancy rights had not been transferred to the latter nor had been sublet. No doubt, he stated that he was in possession of the premises because he said that he was occupying the same room which he used as an office but this cannot be of much assistance to the defendant because admittedly the defendant No. 1 became the Managing Director of the company and he issued cheques for payment of rent from that office as Managing Director and he was being paid a remuneration for working as such. The defendant No. 1, therefore, would have to show that he did carry on some business other than the business of this cinema in that premises or that by any particular act be had retained the control and possession of the premises as its original lessee. The Memorandum and the Articles provided for taking over the existing agreements, and it is difficult to hold upon the material on record that the existing agreements did not include tile agreement of lease. We are unable to find what was left with Jehangir after the formation of the company to maintain his identity as the original lessee vis‑a‑vis these premises. That identity, in our opinion, merged totally into the company. The fact that the company consisted of himself and members of this family does not, in our opinion, make any difference to the result. The Supreme Court in the case of Ikram Bus Service v. Board of Revenue and others (P L D 1963 S C 564) quoted with approval the dictum of Lord Macnathen in the case of A. Salomon & Company Ltd. ((1897) A C 22) which ran thus:‑ "The company is at law a different person altogether from the subscribers to the memorandum; and, though it may be f that after incorporation the business is precisely the same as it was before, and the same persons are managers, and the same hands receive the profits, the company is not in law the agent of the subscribers or trustees for them." Their Lordships further noted the decision of the Privy Council in the case of Avolin Scott Ditcham (A I R 1931 P C 203) where the general notion that Company need not be regarded as a corporation distinct from the persons composing it was dispelled. We may observe that the learned single Judge himself recognised the change of status and the difficulties arising therefrom. He was, however, of the opinion that the fact that Jehangir was a paterfamilias and was also the Managing Director of the Company as well as the original lessee made a difference. With very great respect we find it difficult to subscribe to that view. Either the company held the premises after it took over the business or it was the lessee who held it; both of them could not be holding it at the same time and the only way in which the defendants could have escaped the consequences arising from clause 9 of the lease deed would be, if it bad been established that the lessee had granted a licence of the premises to the Company. This, we must hold upon the material on record, has not been established. Indeed, this was not the defendants case. Replying to paras. 6 and 7 of the plaint, in which the setting up of the company and the subletting had been alleged, it was stated in paras. 9 and 10 of the written statement that the plaintiff never objected to the formation of the company and on the contrary he accepted rent from the company and thereby gave an implied consent and he recognised the defendant No. 2 as tenant or in any case as a sub‑tenant by accepting rent under the lease from them (Company) through cheque. Earlier in para. 5 of the written statement it had been stated that the plaintiff had accepted the defendant No. 2 as tenant by accepting rent from them. No case of licence was in any manner either pleaded or even indicated in the written statement nor was there any issue upon it. We are, therefore, with great respect unable to agree with the learned single Judge that the defendant No. 2 had become a licensee of the defendant No.

1. For the reasons given our conclusion is that the defendant No.

1. Jehangir the lessee bad transferred the whole of his term to the sub‑grantee, viz., the defendant No. 2, on terms similar to the original lease. It must follow that from the date of the sub‑grant the possession of the premises did not remain with the lessee. Our finding, therefore, is that the defendant No.1 had in effect sublet the premises to the defendant No. 2 and there was thus a clear breach of clause of the lease.

14. The learned single Judge had repelled the defendants' case that the plaintiff had accepted the defendant No. 2 as his tenant or that he had consented to the subletting. Mr. Dingomal, however, urged before us in the alternative that this finding was not correct. The learned counsel referred to the fact that the plaintiff had accepted the cheques issued by the company over the signature of its Managing Director without any demur and he himself raised no objection to the sub‑lease until this suit was filed. It was pointed out that in the notice which was given on 8‑11‑52 by the plaintiff asking for possession on the expiry of the term of the lease no ground of sub‑lease was taken, nor was such a ground taken before the Rent Controller when an applica tion had been made under section 10 of the Karachi Rent Restriction Act. It was, therefore, argued that the plaintiff had waived the condition of obtaining previous permission for a sub‑lease and had consented it. In our opinion, this contention is without any substance. Admittedly, the defendant No. 1 did not obtain the permission of the plaintiff for letting the company take over the concern and the premises. His idea was that this was not necessary because the share‑holders of the company were his own members of the family. In order that an inference as to, consent or waiver could be raised it had to be shown that the plaintiff had acted in consciousness of the fact. Mere accepting the cheque issued by the company would not signify consent to a sub‑lease. It is plain that the plaintiff himself did not realise the consequences which had followed the formation of the company and its taking over of the Paradise Cinema. If he was conscious that a sub‑lease had come into being he would have certainly mentioned it in the notice which he gave on 8‑1‑52 asking the defendant No. 1 to vacate the premises. Therefore; if the plaintiff did not realise the legal consequences of the deal between the defendant No. 1 and the defendant No. 2 that, in our opinion, by no means signifies that he had given his consent or had waived the condition contained in clause 9 of the lease Mr. Dingomal further urged that the clause itself provided that such a permission would not be unreasonably withheld. That is so, but since the permission was not asked the question of with holding it does not arise, nor of its unreasonableness. It was stated by the appellant's counsel that if such a permission had been asked the plaintiff would have certainly refused it. It was pointed out that the lease was to expire on 31‑8‑53 and he was wanting the possession of the premises and in fact gave notice in that regard on 8‑11-52. This lease had not been given by‑him, but by his vendor and he had bought the property in 1949 for a very large sum of money and would have preferred to make use of it himself. It was for this reason that he had given the aforesaid notice. That would clearly indicate that he would not have allowed new interest to be created in respect of the lease‑hold premises and would have refused the permission if such was asked for.

15. Mr. S. M. Hafeez appearing for the defendant No. 2 argued that the finding of the learned single Judge relating to the bar of suit which was the subject‑matter of issues I and 7 was not correct and that is any case this suit was liable to be dismiss ed. The argument was based upon section 10 of the Karachi Rent Restriction Act, 1953. It would be convenient to reproduce subsection (1) of that section and a part of subsection (2). Sub‑section (1) reads: "Save as hereinafter provided, no order for the recovery of possessions of any premises shall be made by any Court so long as the tenant pays or is ready and willing to pay the rent payable under this Act and performs the other conditions of the tenancy." Subsection (2) provides that nothing in subsection (1) shall apply where the landlord has obtained a certificate from the Controller certifying any of the several things contained in clauses (a) to (d) of subsection (2). Clause (b) relates to the ground of subletting the premises without the permission of the landlord. The argu ment was that since subsection (2) had provided for a certificate from the Controller on the ground of subletting, a suit for possession on that ground could only to entertained if such a certificate had been obtained. A similar argument was raised by Mr. Dingomal before the learned single Judge and he rejected it for the reasons given in his judgment. We are in respectful agreement with the view taken by him. To uphold the contention of the learned counsel would render an important part of sub‑section (t) as being without any effect or meaning. The b against the making of order for the recovery of possession except in the manner provided by subsection (2) was rendered subject to the conditions that the tenant was paying rent or was ready and willing to do so and performed the other conditions of the tenancy. Therefore, if this condition was not fulfilled the ba r against the making of order without a certificate from the Rent Controller would not apply. The fact that subletting is one of the grounds for a certificate under clause (b) of subsection (2) does not point to a different interpretation. This provides for a case where there may be no condition in the lease against sublett ing. In that case also if subletting took place it would be a ground for ejectment but such an action could only be brought if a certificate was obtained from the Rent Controller. The Bombay High Court has considered this question in two cases. These are Ismail Dada Bhamani v. Bal Zuleikhabai (A I R 1944 Bom. 181) and D. N. Cooper and others v. Shiavax Cowasji Cambata (A I R 1949 Bom. 131). The conclusion reached in those cases would support the view that we are taking and which the learned single Judge took. We, therefore, repel this argument.

16. This brings us to the important question of bar of jurisdiction raised before us with reference to section 13 of the West Pakistan Urban Rent Restriction Ordinance. Section 13 (1) and (2) in so far as it is material may be conveniently reproduced:‑ "

13. Eviction of tenant. ‑(1) a tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Act or otherwise, and whether before or after the termination of the tenancy, except in accordance with the provisions of this section. (2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that." The matters with reference to which the Controller has to be satisfied are set out in clauses (i) to (vi) of this subsection and clause (ii) thereof relates to the transfer of his right by the tenant under the lease or subletting without the written consent of the landlord. Mr. Dingomal contended that section 13 of the Ordinance provided for a complete ouster of jurisdiction of the Civil Court in respect of the matters which are provided for in that section. It was urged that the only way in which a landlord could evict his tenant was by applying the procedure provided in subsection (2) of section 13, that is he has to apply to the Controller for a direction in that behalf. It was further urged that this section not only provided for cases of eviction which were instituted after the coming into force of this Ordinance but it also prohibited eviction in pursuance of a decree passed even before the commencement of this Ordinance. In this connection he referred to subsection (I) of section

13. It was thus contended that section 13 constituted a complete bar against the Civil Court either executing past decrees or entertaining; any action for the eviction of the tenant. It was said that since an appeal is a continuation of the suit we cannot in this appeal do what we could not do if a suit was filed today for the eviction of a tenant. The learned counsel relied upon the following cases:‑

1. Mrs. Keays Byrne v. M. Obaidullah Khan (P L D 1961 Lah. 256) which was a judgment of a Division Bench of the West Pakistan High Court Lahore, wherein it was held that in view of this Ordinance the jurisdiction of the Civil Court to try a suit for the ejectment of a tenant has been ousted and no Civil Court is entitled to pass a decree for the ejectment of a tenant after the enforcement of the Ordinance; (2) Jumo Khan v. Ramzani (P L D 1959 Kar. 60) In this care Kaikaus, J., as he then was, held that the effect of the West Pakistan Rent Restriction Act barring the ejectment of a tenant even in the presence of a decree wad that even in suits which were pending at the date when the Act came into force a decree for ejectment cannot be passed. It may be noted that section 13 of this Act was in the same term as section 13 of the present Ordinance; (3) Muhammad Daud v. Sher Bahadur Khan (P L D 1963 Pesh. 217) in which the learned Judge followed the view taken by the Division Bench in the Lahore case.

17. Mr. Lari for the appellant on the other hand contended that it was only subsection (1) of section 13 which was retrospec tive inasmuch as it barred the execution of a decree which may have been passed before the commencement of this Ordinance. He, however, pointed out that this subsection protected only a tenant who was in possession and as in the present case the tenant, namely the defendant No. 1, was not in possession he did not enjoy the protection of this subsection. As far as subsection (2) of section 13 was concerned his argument was that this also will not apply in the present case because this suit was brought in 1954 when the Karachi Rent Restriction Act did not protect a tenant who had committed the breach of a condition of tenancy and such a tenant was liable to be ejected by means of a Civil Suit without a certificate from the Rent Controller. According to him, section 13 had no application to the present case. The defendant No. 1 was not protected because he was not a tenant id possession and the defendant No. 2 was also not protected because he was not a tenant within the meaning of this Ordinance. He referred to the definition of `tenant' in the Ordinance which did not include a person placed in occupation of a building or rented land by its tenant unless with the consent in writing of the landlord.

18. On consideration of the arguments raised before us the question, in our opinion, for the purposes of the present case resolves itself thus: Firstly, whether subsection (1) of section 13 applies to this case because if it does, we have no doubt that we cannot pass a decree for eviction of the defendants. Secondly, if subsection (1) does not apply to this case whether in view of the procedure provided by subsection (2) of the jurisdiction of this Court to pass a decree for eviction impliedly barred.

19. With regard to the first question, the conclusion that we have reached is that it applies only to a tenant in possession. Subsection (1) says so expressly and we do not think that it can be interpreted in a manner so as to protect a person who had parted with possession by transferring his right to another person. This subsection no doubt also covers cases of tenants whose tenancy has been terminated. This, however, in our opinion, still relates to a tenant who continues to be in possession after determination of his tenancy. Such a termination can take place either by e8ux of time or by notice. But we are not dealing with such a case. The tenant in the present case, as we have found, had transferred his rights by a sub‑lease in contraven tion of clause 9 of the lease. This took place in 1952. According to law, as it then stood, a suit for possession upon the ground that the tenant had violated a condition of the tenancy was permissible and was not barred. The present suit was brought in the year 1954 and, in our opinion, it could be frustrated now only if it could be held that subsection (1) of section 13 of the present Ordinance applied to it. The cases which were cited before us on behalf of the respondents and to which we have referred were all cases of tenants in possession and we are for that reason of the opinion that the ratio in those cases does not apply to this case. The question on which we are now examining did not arise in any of those cases; may be for the simple reason that the tenant in those cases were still in possession and were being sought to be evicted. It must be noted that we are dealing with a statute which militates against the right of property as available under the general law or local usage. This law must, therefore, be strictly construed for the said reason and also because it seeks to oust tae jurisdiction of the ordinary courts and even renders certain decrees to be nugatory. If a case does not strictly come within the scope of this section we do not think we should be justified in applying it by giving it a liberal construction. In the view, that we have taken, we hold that section 13 (1) of the Ordinance does not oust the jurisdiction of the Court in the present case and an effective Decree for eviction can be passed against the defendant No. 1 because he is not a tenant in posses lion and also against the defendant No. 2, the limited company, because it is not a tenant within the definition of the term. We, answer the first question accordingly.

20. With regard to the second question it would be necessary to examine the history of this law. When this suit was instituted it was the Karachi Rent Restriction Act which held the field and we have found in respectful agreement with the learned single Judge that section 10 of that Act did not bar the suit. After the establishment of West Pakistan certain legislations were passed but they did not affect the Karachi Rent Restriction Act which continued to apply to the Federal Capital which then was Karachi. The first amongst these legislations is West Pakistan Urban Rent Restriction Ordinance XIX of 1956. This, however, extended only to certain districts of West Punjab. This was followed by the West Pakistan Urban Rent Restriction Act, IX of 1957. By subsection (2) of section 1 of this Act it was extended to all the urban areas in West Pakistan, except the Federal Capital and the special areas. Then came this Ordinance VI of 1959. By subsection (2) of section 1 the Federal Capital and the Special Areas were still excluded from its operation so that the federal territory of Karachi continued to be governed in these matters by the Karachi Rent Restriction Act. Then on 7th June 1962 two Ordinances were published. One of these watt a Central Ordinance (Ordinance XLVIII of 1962) described as the Karachi Rent Restriction (Amendment) Ordinance, 1962. This came into force, at once and by section 5 of this amending Ordin ance section 10 of the Karachi Rent Restriction Act was amended so as to bring it into line with section 13 of West Pakistan Ordinance VI of 1959. The other was a Provincial Ordinance (Ordinance XXXVIII of 1962). By this Ordnance the Karachi Rent Restriction Act of 1953 in its application to areas other than Cantonment areas was repealed. However, this Ordinance did not come into force at once and it was provided by sub section (2) of section 1 that it shall come into force on such date as the Provincial Government, by notification in the official Gazette, may appoint. Such a notification was published on 1st July 1963. Thus it was only as from the 1st of July 1963 that the West Pakistan Ordinance VI of 1959 come to be applied to Karachi. Now, by the Central Ordinance XLVIII of 1962 where by section 10 of the Karachi Rent Restriction Act was amended so as to bring it in line with section 13 of the Ordinance of 1959 there were savings which were provided by section

12. Sub section (I) of section 12 provided that notwithstanding anything contained in this Ordinance any person exercising the powers of a Controller under the said Act (The Karachi Rent Restriction Act) shall continue to exercise such powers. By subsection (2) all applications pending before the Controller immediately before the promulgation of this Ordinance for obtaining a certificate under subsection (2) of section 10 of the Karachi Rent Restriction Act were to be deemed to be applications under the provisions substituted by this Ordinance. By the third saving clause which is important it was laid down that, "save as provided in sub section (2) nothing in this Ordinance shall affect any suit or proceedings or any application for revision pending before any Court or authority immediately before the promulgation of this Ordinance.

31. Having regard to the savings in the aforesaid subsec tion (3) of section 12 it would follow that the present suit for eviction which was not barred by section 10 of the Karachi Rent Restriction Act would be saved. This position was not altered by the Provincial Ordinance XXXVIII of 1962 which applied upon the notification dated 1st July 1963. The saving provisions in this amending Ordinance are contained in its section 3 but they do not expressly or by implication affect a pending suit such as the present one and which had been saved by subsection (3) of section 12 of Ordinance No. XLVIII of 1962.

22. Coming back to subsection (2) of section 13 of the present Ordinance it may be observed that it provides for a procedure which the landlord has to follow when he seeks to evict his tenant. This provision, in our opinion, 1s not restrospec tive and, therefore, it cannot be pressed into action for the purposes of the argument that in so far as a procedure has been provided for obtaining eviction of a tenant including a tenant whose tenancy has expired or who has sublet the premises the jurisdiction of the Civil Court is ousted in respect of the present suit. As we observed this suit was instituted in 1954 and the Civil Court was competent to pass a decree for possession having regard to the provisions of section 10 of the Karachi Rent Restriction Act. The suit could, therefore, be displaced on the ground of absence of jurisdiction only if subsection (1) of section 13 was applicable to it or if it could be found that sub section (2) of section 13 had the effect of excluding the jurisdiction of the Civil Court in a case of this nature. This we have held it does not. Our conclusion, therefore, is that the jurisdiction of this Court is not barred either on the ground of section 13 (1) or 13 (2) of Ordinance VI of 1959.

23. In view of our findings we allow the appeal and grant to the plaintiff a decree for possession in the terms of the prayer contained in para. 15 (a) of the Plaint with costs.

24. The Plaintiff had claimed mesne profits at the rate of Rs. 500 per day from 1‑9‑53 till 15‑12‑53 amounting to Rs. 53,000 and further mesne profits at the sane rate till the date of posses sion. However, no evidence was led by the plaintiff in proof of this claim. The burden of proving the amount of profits that might with ordinary diligence have been received is on the person claiming it. In the absence of any evidence on that point the learned single Judge granted to the Plaintiff a sum of Rs. 6,104 from 1st of September 1953 to the 15th of December 1953 at the rate of Rs. 1,744 per month. Mr. Lari had suggested that we take additional evidence on this point and had offered to file the receipt of additional tax imposed upon the property but we did not think that any case for additional evidence had been made out and we, therefore, rejected that prayer. We accordingly grant a decree to the Plaintiff for mesne profits at the same rate of Rs. 1,744 For month from 1st September 1953 till the date of this judgment and thereafter until the plaintiff is put into possession. We are not inclined to grant any interest upon this amount because the defendants had offered to pay at this rate to the Plaintiff which the plaintiff had declined. We would also not grant cost to the Plaintiff on the amount of profits. In the result the appeal is allowed in the terms stated above. K. B. A. Appeal accepted.