P L D 1994 Karachi 177 (PLP)

The present appeal has been filed assailing the order dated 21-11-1990, passed by the learned 1Vth Rent Controller, Karachi (East) in Rent Case No. 619 of 1988 dismissing appellant's application under Order 1, Rule 10, C.P.C., who claiming to be sub-tenant, sought to be joined as a party. I have heard the learned counsel Mr. M.H. Siddiqui for the appellant, Mr. Khalid Jawed for respondent No.l and Mr. Hassan Azhar Rizvi for respondent No.2. The learned Advocate for the appellant has submitted that the lease agreement executed between respondent No.l, the landlady and respondent No.2, the tenant, provided "the lessee can sublet the whole or any part of the said premises to any person, body or establishment. But the lessee cannot sublet without consult of the lessor". According to him, the appellant was inducted as a sub-tenant by respondent No. 2 in view of the aforesaid specific stipulation in the lease agreement and being in possession will be directly affected by the decision of the rent case and as such is a necessary party in the case filed by respondent No.l against respondent No.2 for his eviction. He relied on the case reported as Mahrajdin v. Muhammad Yasin PLD 1968 Lah.

20. On the other hand, the learned Advocate for respondent No.l has contended that unless the sub-tenancy is created with the consent in writing of the landlord, the sub-tenant, cannot be treated as necessary party. In support of the above submission he has relied on the case of Minochar N. Kharas v. Ali Hasan Manghi 1986 CLC 1378. It was further contended by him that section 15(2)(iii)(a) specifically provides that the tenant will be liable to eviction if he has without the written consent of the landlord handed over the possession of the premises to some other person, as such, the consent has to be in writing for the purpose of subletting the premises. It was further contended that the consent being the requirement of the aforesaid provisions of the Rent Ordinance, the parties neither can contract out of the above provisions of the Ordinance, nor it can plead as practice what is contrary to the provisions of the said law. He has referred to Amir Ali and others v. M/s. Burma Oil Mills Limited 1990 SCMR 1327. The learned Advocate for respondent No.2 has vehemently urged that para No.4 of the lease agreement executed between him and the respondent No.l displays the consent stipulated under the Ordinance and additionally provides for consultation with respondent No.l while sub-letting the premises. In the application, filed by the appellant, it was specifically stated that he was inducted as a sub-tenant with effect from 1st January, 1983 with the approval and consent of the applicant and that he has been paying rent to respondent No.2. In the reply, filed by way of counter-affidavit, respondent No.l the landlady, did not deny the lease agreement but took the plea that the premises was sublet unauthorisedly and without her consent. The learned Rent Controller dismissed the application mainly for the reason that the appellant had not submitted any proof to show that he was in possession of the premises or that he had paid any rent to the landlady. The above controversy is to be seen and resolved in the juxtaposition of section 15(2)(iii)(a). In the case of Minochar N. Khars (supra), relied upon by the learned Advocate for respondent No.l, the tenant had sublet the various portions of the tenement to different persons. The proposition, was canvassed before the Court that the sub-tenancy created, was within the knowledge of the landlord but no exception having been taken to it for over a period of six years, the implied consent of the landlord in creation of such tenancy is to be inferred. Mr. Nasir Aslam Zahid, J. (as he then was, now the Chief Justice of this Court) while interpreting the aforesaid provisions of the Rent Ordinance, has observed that the words "consent in writing" could not- be deemed to mean or include consent which was not in writing and even if there be an implied consent, it could not constitute consent in writing. In so far as the instant case is concerned, the reliance is being placed on clause (4) of the agreement, already referred to above, which discloses the consent in writing given by respondent No.l to respondent No.2, the original lessee. In the background of the above facts, the rule laid down in MINOCHAR's case is of no help to respondent No.l. While being critical about the language used in the aforesaid para, it was contended by the learned counsel for respondent No.l. that the said para does not specifically provide that the sub-tenancy shall be created with the consent in writing by the landlord and as such the above stipulation is directly in conflict with the aforesaid provisions of the Ordinance and cannot be enforced. He has relied on the case of AMIR ALI (supra) which lays down that the parties can neither contract out of the provisions of the Rent Ordinance nor can plead a practice which is contrary thereto. In the above-case the learned Judges were dilating upon the issue of default in payment of rent and the practice pleaded by the tenant contrary to the provisions of the Ordinance. The above authority in no way advances the case of respondent No.l. The aforesaid para 4 of the lease agreement itself discloses a consent or permission given by respondent No.l to respondent No.2 to sublet the whole or any part of the premises to any person. This would then be treated as a consent in terms of the aforesaid provisions of the Ordinance. The above stipulation has been then clarified that subletting will not take place without consultation with the landlord. It may be pointed out that in the above paragraph of the agreement the verb "consult" has been used in place of noun consultation. In the first part of the para consent having been given, the second part of the para is to be read in consonance with the first stipulation, as providing for merely taking landlord into confidence for creating sub-tenancy at a given time and the following para cannot be interpreted as to come directly in conflict with the first part of the agreement. It is established rule of interpretation that the provisions made in the contract ought to be read in such a manner that they remain in consonance with each other and do not destroy the intent thereof. Now the only question that arises is whether the Rent Controller was justified in refusing to join the appellant as a party in the proceedings. On reading of the pleadings it emerges as an admitted fact that the appellant was indu- -.d as a sub-tenant by respondent No.2 with effect from 1st January, 1983. The execution of the agreement is also admitted between the parties. The learned Rent Controller dismissed the appellant's application for the reason, as has been observed by him, that the intervenor/appellant had not submitted any proof to show that he was in possession of the premises or had paid rent to the applicant. So far as the first observation of the learned Rent Controller is concerned, it is not based on the material on record as admittedly the appellant is in possession of the premises. The second reason is also devoid of any force as the question whether the rent has been paid by the appellant or whether rent was payable by him to respondent No.l or 2 and the allied questions that may emerge from the controversy raised before the learned Rent Controller, are to be decided on the basis of the evidence to be recorded. While considering the application under Order 1, Rule 10, C.P.C. the question that ought to have been considered is whether the person, who desires to be joined as a party, is a necessary or proper party. In view of the aforesaid admitted facts regarding the actual possession and the execution of the agreement, the appellant is a necessary party and is entitled to be heard for decision of the issue whether the tenancy has been created in terms of the agreement or not and the other grounds of eviction raised in the case. The impugned order is accordingly set aside and the appeal is allowed. The appellant shall be joined as a party in the rent proceedings. H.B.T./N-503/K Appeal allowed.