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Second Appeal No. 193 of 1977, decided on 30th May, 1982.

---Ss. 13 & 15--Sind Rented Premises Ordinance (XVII of 1979), S.15(4)-- Ejectment--Subletting--Transfer of tenancy by 2 private partnership firm in favour of private limited company, held, would fall within mischief of subletting.

Nanik 1. Mobed and another v. Shah Ibrahim and others P L D 1974 S C 351 rel.

---Ss. 13 & 15--Sind Rented Premises Ordinance (XVII of 1979), S.15(4)-- Ejectment--Subletting--Admissions made by witnesses proving subletting on part of tenant--Order of ejectment passed by Rent Controller on ground of subletting, upheld.

Nisar Ally for Appellant.

Fazalbhoy for Respondents.

Date of hearing: 30th May, 1982.

This second rent appeal is directed against the order dated 21-7-1977 passed by the learned Additional District Judge, Karachi in Rent Appeal No. 132/76 reversing the order of the learned Rent Controller dated 4-2-1976 passed in Rent Case No. 3515/75. The relevant facts leading to the filing of the above appeal are that the present appellant filed the aforesaid rent case on three grounds namely: (1) default in payment of rent for the period from 1-6-1975 to 30-9-1975, (2) unauthorised subletting, and (3) conversion of the shop into a godown. The learned Rent Controller after recording the evidence and after hearing the parties allowed the above rent application on two grounds, namely, default and subletting. The respondent being aggrieved by the above order filed the aforesaid rent appeal, which was allowed by the learned Additional District Judge by his aforesaid order dated 21-7-1977. The appellant being aggrieved by the above order has filed the present appeal.

2.(a) In support of the above appeal, the learned counsel for the appellant Mr. Nisar Ally, has urged that the learned Additional District Judge was not justified in reversing the judgment of the learned Rent Controller, whereas Mr. Fazal Bhoy, learned counsel for the respondents, has urged that the order of the learned Additional District Judge is in consonance with law.

(b) Reverting to the question of default, it may be observed that Mr. Nisar Ally has referred to Exh.l-A a tenancy agreement dated 25-10-1962, in which according to him the rent was payable in advance by 5th of each month. However, from the two orders passed by the two Courts below, it seems that this point was neither canvassed before the two Courts below nor there is any such express plea in the rent application. In this view of the matter the learned Additional District Judge on the basis of the two cheques produced and the counterfoil of the money order received by the appellant on 11-10-1975 could conclude that there was no default.

3.(a) Adverting to the question of subletting, it may be pertinent to quote hereinbelow the admission made by the respondent's witness Syed Muzafar Sajid, which reads as follows:----

"Exhs.A/2 to A/8 do not bear my signature nor any one to our office. I am not sure that we have paid for Exhs.A/9 to A/12. The cheques were sent through a peon. I can produce the peon book. I have not brought it. No notice was given to the applicant when the cheques were returned. It is incorrect that both the opponents are carrying out business in the same premises. The business is being carried in the name of opponent No.2. The opponent No. 1 was a partnership firm which was dissolved on 27-6-1974. The opponent No. 2 is a limited company and it was established on 27-6-1974. No notice was given to the applicant, stating that the opponent No. 2 has been established, as a limited concern. The payment of rent is being paid through opponent No.1. Exh.A/1 was signed with the opponent No. 1 by the applicant and it is the same. Exhs.A/14 and A/15 are the photos of the premises in dispute. The opponent has not filed the suit against the applicant."

(b) From the abovequoted admission, it is evident that the shop in question was used by respondent No. 2 i.e. the Limited Company and not by respondent No. 1 as partnership firm which stood dissolved on 27-6-1974. In this view of the matter the subletting stands proved and the cases of Nanik I. Mobed and another v. Shah Ibrahim and others PLD 1974 S C 351 and Messrs Premier Mercantile Service and another v. S.M. Younus and 2 others, on all fours applicable to the instant case. In both the above cases, it was held that a private limited company is a distinct entity from a dissolved partnership firm, and transfer of tenancy by a private partnership firm in favour of a private limited company would fall within the mischief of subletting.

(c) In this view of the matter the learned Additional District Judge was not justified in reversing the finding of the learned Rent Controller on the question of subletting I, therefore, allow the above appeal on the ground of subletting only and restore the order of the learned Rent Controller. However, I grant four months time from today to the respondent No. 1 to hand over vacant possession of the shop in question on the condition that the respondent shall continue to deposit rent in terms of the Rent Controller's order. In case the respondent will commit default 'of any month, the appellant would be entitled to file an execution application before the expiry of the above four months period. Further more, if on the expiry of four months time, the respondent fails to hand over the vacant possession, the Rent Controller shall issue writ of ejectment without any notice to the respondent.

In the circumstances of the case there will be no order as to costs.

M.Y.H. Appeal allowed.

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