2002 PLP 597 (MLD)

2. The respondents filed an ejectment application under section 17 of the Cantonments Rent Restriction Act, 1963, on the grounds that (i) the appellant‑tenant who was running a Hotel/Restaurant under the name and style of Majestic Hotel, had sublet the roof of the said building to respondent No.2 who had affixed and displayed a Neon Sign by the name of "WAVES", (ii) by subletting the portion of the property in dispute, the appellant had allowed the property to be used for a purpose other than for which it was let out to respondents Nos. 1 and (iii) by illegal and unauthorized subletting, the respondent was receiving Rs.36,000 per year as rent whereas he was payed a rent of Rs.20,000 per annum only. The building had been condemned by the Cantonment Board, Murree, and a notice for demolition of the same had been issued on 31‑8‑1996. The ejectment application was contested, denying all the allegations particularly the subletting.

3. Out of the pleadings of the parties, following issues were framed:‑ (1) Whether the petitioners 1 to 2 and 4 to 6 are not the landlords in respect of the property in dispute? (OPR). (2) If issue No. 1 is proved, what is the effect of petitioners Nos. 1 to 2 and 4 to 6 of not being landlord': (OPR). (3) Whether the respondent No. 1, has not sublet the building in dispute by allowing respondent No. 2 to display the neon Sign on the building and by accepting consideration for the same from respondent No 2? (OPR). (4) Whether the act of subletting the roof of dispute building by respondent No. 1 amounts to converting and changing the object and purposes of the tenancy ? (OPP). (5) Whether the building in dispute is dilapidated and is in need of extensive repairs and as such cannot be repaired without ejectment of respondents? (OPP). (6) Whether the respondents are guilty of acts anc deeds ‑ making them liable to be ejected from building in dispute' (OPP). (7) Relief. The learned Rent Controller vide its order, dated 31‑10‑2000, accepted the ejectment application on the ground of subletting and ordered the tenant to vacate the premises and deliver its possession to the respondent/landlord within one month.

4. Learned counsel for the appellant contended that there was no subletting of the building or any portion thereof or transfer of his right under the lease nor the building had been used for the purpose other than for which it was leased. In the alternative, learned counsel submitted that the respondents/landlords have waived their right. He placed reliance on 1992 CLC 482 and PLD 1980 Karachi 126.

5. Conversely, learned counsel for the respondent/landlord defended the impuglred order by placing reliance on 1993 MLD 2425. 1986 CLC 1109, 1996 SCMR 97, 1995 SCMR 330, PLD 1995 Karachi 388,. 1981 SCMR 845 and PLD 1995 SC 609.

6. The word "sublet" has not been defined in the Act. In the absence of the definition, we have to resort to its ordinary p dictionary meaning and the interpretations made by the superior Courts.

7. Subletting connotes parting with physical possession of the rented premises or a part thereof, simple permission to a person to use demised premises cannot be held to have sublet the premises. Sub‑lease connotes the right to exclusive possession and enjoyment of property. In the case in hand only a Neon Sign of "WAVES" was displayed at the roof .of the hotel building. If the arrangement constituted an under‑letting, it must have conferred upon the, sub‑lessee some estate or interest in land and this in my opinion is not the effect of the arrangement. All that was conferred was a mere privilege or licence to display the Neon Sign. The appellant‑tenant retained the legal possession of the whole of the premises at all material times, the tenant who retains such possession does not commit a breach of the statutory condition. In the case of Jackson v. Simons (1923) 1 Ch. 373, the defendant, without the consent or knowledge, agreed, for the sum of 7 shilling, per week, to allow the proprietor of the night club carried on in a basement beneath the shop to use the front part of the shop between the hours of 10‑30 and 2 a.m., for the sale of tickets of admission to the club The part so used gas partitioned oft' from the counter and the rest by a movable screen. The screen when fixed was secured in its position by a padlock, the key of which was retained by the defendant. It was held that the arrangement conferred no estate or interest in the demised premises but was a mere privilege or licence to use a portion thereof in another case Stenning v. Abraham (1931 1 Ch. 470, the defendants gave the exclusive right to use for the purpose of suspending, fixing and exhibiting advertisement bill‑boards hoardings. or displaying advertisements on the premises with free and uninterrupted access to the same. Farwell, J held that if there is anything in the nature of a right to concurrent user there is no parting with possession. It was observed as under:‑‑ "The plaintiffs contend that the front of the wall is wholly to the control of the licensees. That is not the true view. The right of licensees to put up their advertisement hoarding does not prevent the defendants from using the wall so long as they do not licensees determined interfere with their licensees. Suppose the to cease their user for a period. The defendants could certainly repair the wall without their leave. Merely giving the licensees a, right to use the wall for this particular purpose is not a parting with possession." Similar observations were made in Chaplin v. Smith (1926) 1 KB

198. In the case in hand mere display of Neon Signs, in my opinion is not assigning of lease right or subletting/under‑letting of the premises. In 1992 CLC, Mr. Justice Muhammad Mazhar Ali, J.,' observed as under:‑‑ "I am of the opinion that a lessee, who retains the legal and physical possession of the demised premises to himself but simply allows some person also to use the demised premises, cannot be held to have sublet the premises. In order to create a sub‑lease, the right to exclusive possession and enjoyment of property should be conferred fo assigned upon the sub‑lease." In Manek J. Mobed and another v. Shah Behram and others PLD 1974 Supreme Court 351., it was laid down as under:‑‑ "If a person obtains leasehold rights in his own name and subsequently assigns them to a firm or to a private limited company consisting of his family members it. cannot be said that no change has taken place in the status of the tenant or that it is not a case of subletting or assignment of leasehold rights. " In Abdullah Bhai and others v. Ahmad Din PLD 1964 Supreme Court 106, the Honourable Supreme Court, while explaining the difference between `lease' and `licence' observed as under:‑‑ "The line of demarcation between a lease and a licence is sometimes very thin . . . . . A lease is a transfer of an interest in immovable property. Ownership of physical property consists of a number of tights and the owner of such property, when he creates a lease, transfers to the lessee a part of the rights of ownership, i.e., the right of enjoyment of the property, for a period for consideration. During the continuance of the lease the right of enjoyment bf the property belongs to the tenant and not to the landlord. The right of ownership as well as the rights of which it is composed or rights in rem and not in personam and by the lease a right' in rem is transferred to the lessee. On the other hand, a `licence' is merely a competence to do something which except for this permission would be unlawful. It does not confer any rights in physical property. There is in the case of a licensee only a personal agreement between the licensor and the licensee whereby the licensor agrees not to interfere with the doing of particular acts on property which is in his possession. No right in rem passes to the licensee."

8. As stated above, the display of Neon Sign of a Company "WAVES" cannot be taken by any stretch of imagination, a subletting. It 'may be an advertisement for attracting more customers for the Hotel. To constitute the breach, there must be a substantial parting with a substantial part of the premises. In my view to constitute subletting, the tenant must wholly oust himself wind part with legal possession of any part of the premises. That being absent in the present case will not amount to subletting. The cases relied upon by the learned counsel for respondents are not helpful as the facts in these cases are entirely different. There is no evidence on the record that the property had been used for a, purpose other than for which it was leased. The building was still being used as Hotel. Affixing of the Neon Sign on the roof cannot be termed as a conversion of the use for a purpose other than for which it was leased.

9. I tend to agree with the alternative argument of learned counsel for the appellant that the respondents/landlords had acquiesced in the breach and waived their right. The lessor can waive, by conduct the condition of requiring prior permission for subletting. Reliance was placed on PLD 1980 Karachi

126. In the present case the landlord had been receiving rent for two years and had a volte face' and pleaded the sub‑letting. The landlord by his conduct acquiesced in the breach and waived his right of enforcement of the same.

10. Learned counsel for the respondents tried to raise a point that the property required for construction as it was in a dilapidated condition. The finding of the learned Rent Controller is against the respondent/landlord. No document/sanctioned plan has been placed on the record to prove the same. No other point has been urged before me.

11. The upshot of the above discussion is that this appeal succeeds, the impugned order, dated 31‑10‑2000 passed by the learned Rent Controller, Murree, is set aside and the eviction application of the respondents/landlords is dismissed with no order; as to costs. Q.M.H./M.A.K./M‑802/L Appeal allowed.