1979 PLP 166 (CLC)

2. The appellant's ejectment was ordered on an application filed by the respondents in which, inter alia, it was alleged by, them that they nad leased out the shop in dispute to the first appellant, Sabaz Ali but be had sublet the same to the second appellant, Zafar Iqbal and that the shop was also needed by one of the respondents, namely, Shahid Iqbal for doing business. These pleas of the respondents found favour with the Rent Controller who heard the application, and, therefore, he ordered the appellants to vacate the shop. The appellants assailed the order of the learned Rent Controller by means of an appeal to an Additional District Judge but without success. Hence this second appeal.

3. As for the issue relating to the subletting of the premises in dispute, it was contended by the learned counsel for the appellants that the first appellant has joined the second appellant with him as a partner for doing business in the shop in dispute and had not sublet the shop to him. In support of this contention, he placed on record the partnership deed Exh. R.

1. Relevant clauses of this deed read as follows :‑‑ It is clear from clause (8) of the partnership deed that the first appellant bad agreed to share the possession and the tenancy rights in the shop in dispute with the second appellant in the same way as be was to share the profit' and loss of the firm set up by them by means of the partnership deed. According to clause (4) of the deed, the first appellant had to share 1/4th of the profit and loss of the business while the remaining share in the profit and loss was 2o be ~of the second appellant. Thus, in view of clause (4) read with clause (8), the second appellant had to share the posses sion of and the tenancy rights in, the shop in question accordingly. Obviously this amounted to subletting a part of the shop to the second appellant. In terms of clause (9), this sub‑tenancy was to continue till the first appellant had prevailed upon the respondents to treat the second appellant as a co‑tenant with him. The view taken above is further supported by the recitals appearing in clause (11) whereby the second appellant was also to have the custody of the key of the shop.

4. Learned counsel for the appellants urged that taking the partnership deed as a whole the finding of the two tribunals that the first appellant had created sub‑tenancy in favour of the second one could not be sustained. He relied on Motai Bai v. Abdul Aziz and others (P L D 1968 Kar. 635) to advance his plea. In that case, the tenant had entered into partnership with some persons for doing partnership business in the premises occupied by him as a tenant but in the partnership deed executed by them, it was clearly stipulated that the tenancy in the shop shall continue to vest in him only and on the dissolution of the partnership, his partners shall vacate the premises without making any claim thereto. The facts of the cited case are, therefore, distinguishable from those of the present case inasmuch as in the partnership deed involved in the instant case, the first appellant, Sabaz Ali, had agreed to share the tenancy rights with the second appellant, Zafar Iqbal, whereas in the case under report, the tenant who was occupying the premises at the time of entering into partnership with others, had taken care to retain the tenancy rights with him alone. However, in view of the principle enunciated in the case of Motal Bai and the facts of the present case, it can be safely held that Lhe first appellant before me had sublet the premises in dispute to the second one. That principle makes the following reading :‑ "The rule to test whether an arrangement is a licence, or a lease or its assignment, or a sub‑lease is whether it is the intention of the parties that an estate or a right in immovable property should pass to the person concerned, and whether such interest or estate has in fact passed to such person. The determination of the question would depend on the facts, circumstances and conduct of the parties in each case. In cases where a lessee enters into a partnership with others and lets the firm into possession of the premises held on lease by the lessee, the question would be what was the intention of the parties with regard to the demand premises when they entered into the legal relationship of partnership and, further whether the lessee had parted with, or divested himself of, the legal possession of the premises in favour of the firm. This parting with legal possession should be such as to create an interest in immovable property, a right in rein, in all the partners so as to create in them unity of title, unity of interest, unity of possession as well as every part as of the whole demised premises, so that all the partners become co‑lessees. (Underlining is by me)

5. The case of Motal Bai was discussed in Akhtar Ali and another v. Mst. Umatul Islam (P L D 1979 S C 815). In the case of Akhtar Ali and another, the principal tenant, Akhtar Ali gave up his own possession from half of the shop and passed it on the sub‑tenant for a sum of Rs. 10,000 and the latter onward became solely liable for payment of rent thereof and responsible [Here in italics] for all consequential liabilities. It was also stipulated in the agreement that before that arrangement also the sub‑tenant was proportionately liable for the rent of the whole shop which was jointly held by, him and the principal tenant. While deciding the case of Akhtar Ali and another, their Lordships of the Supreme Court distinguished the case of Motal Bai and also observed that certain points which should have been attended to in the case of Motal Bai were not examined by their Lordships of the Sind High Court. However, without going into those points and various other relevant aspects of the subject, their Lordships. of the Supreme Court ruled that in the case of Akhtar Ali and another a sub‑tenancy had been unlawfully created. The relevant observations of their Lordships read as follows :‑ in the present case before us the matter is clinched by Exh. P./1 which was read before us by the learned counsel for the petitioners himself, and which is a copy of the contents of a document as retained in Register of Muhammad Yusaf, Deed‑writer who had deposed that he was a scribe of that document which was executed by Akhtar Ali Shah principal tenant and Khan Shah (Sub‑tenant). According to that document the arrangement which took place between the principal tenant and the sub‑tenant (appellant No. 2) was that Akhtar Ali (principal tenant) in considera tion for Rs. 10,000 gave up his own possession from half of the shop and passed it on to appellant No. 2 exclusively who onward became solely liable for payment of rent thereof and responsible for all consequential liabilities. The agreement further indicated that even earlier also he was proportionately liable for the rent of the whole of the shop which was being jointly shared by him and the principal tenant. All these facts clearly show an unlawful subletting and transfer of tenancy rights. This may be read along with para. No. 1 of the. written statement of Khan Shah in which he had admitted that it was he who was the tenant of the main landlord and that Akbar Ali Shah had no concern whatsoever, with the disputed shop."

6. It will, therefore, be seen that the view expressed by me while dealing with the case of Motal Bal is supported by the observations made by their Lordships of the Supreme Court in the case of Akhtar All and another the facts whereof are similar to those of the case in hand. I am, therefore, convinced that, in the present case, the first 'appellant had sublet a part of the shop in dispute to the second appellant.

7. On the issue relating to the personal need of one of the respondents learned counsel for the appellants contended that the respondents had six other shops and, therefore, they did not require the shop in dispute. He, however, did not refer to any piece of evidence showing that any other shop owned by the respondents was lying vacant at the time when they took out ejectment proceedings against the appellants or became available to them during the pendency thereof. Thus, the mere fact that the respondents own shops other than the shop in question does not constitute a valid ground for denying the relief claimed by them.

8. Lastly, it was urged by the learned counsel for the appellants that Shahid Iqbal respondent, who wanted to do business in the shop in question, was a minor, and therefore, did not, in fact, need the shop. The evidence referred to by the learned counsel in this behalf is the statement of Shahid Iqbal himself in which he said that he was born in 1958. By now he has attained the age of 21 years. Even at the time of filing of the ejectment petition he was about 17 years old. Needless to say that a of that age can successfully run a shop as is generally done by the boys who are that much old. In this view of the matter, the age of Shahid Iqbal is of no help to the appellants.

9. No other point was raised by the learned counsel for the appellants.

10. The appeal, therefore, fails and is dismissed in limine. The appellants are, however, allowed two months times to vacate the premises in dispute. M. A. K. Appeal dismissed.