' MUHAMMAD SAIR ALI, J.---The petitioner is aggrieved of the judgment dated 20-2-1999 of the learned Additional District Judge, Lahore who affirmed the judgment dated 7-5-1995 of the learned Rent Controller, Lahore, dismissing his ejectment petition.
2. The petitioner, Dr. Sh. Abdur Rehman filed a petition against Syed Saeed Ali (now represented through his L.Rs i,e, respondents Nos.1 to 7) under section 13 of the Punjab Rent Restriction Ordinance, 1959, seeking his ejectment from the premises in dispute on the grounds of default in payment of rent and subletting to one Syed Akhtar Ali without permission of the petitioner. The respondent contested the petition and in the reply asserted that the demised one Kanal plot was taken on rent through the rent agreement slated 20-3-1962 by him and as his "family member" by his brother Syed Akhtar Ali Shah. And that since inception of the tenancy, both the brothers established a workshop there over i,e, "SAMS AUTOMOBILES" and were carrying on the joint business as the partners and out of the income of the said partnership business, the rent was all along paid/remitted to the petitioner generally by respondent No,1 Syed Saeed Ali and sometimes by respondent No,2 Syed Akhtar Ali.
3. The learned Rent Controller framed the issues and recorded the evidence. The petition was dismissed by the learned Rent Controller holding that the petitioner was unable to prove the default in the payment of rent as well as the subletting. Appeal filed by the petitioner was also dismissed by the learned Addl. District Judge.
4. The petitioner impugned these concurrent judgments through S.A.O. No,64 of 1999 which was admitted for the regular hearing on 1-6-1999. On 6-6-1999, through C.M. No, 809-C-2002, the petitioner sought leave to convert S.A.O. Into a writ petition. The request was granted on 2-10-2002.
C.M. No,1-C-2002 of the respondents for implement of the L.Rs of Syed Akhtar Ali was also allowed.
The petitioner on 9-10-2002 however filed a new Writ Petition bearing No,18748 of 2002 which was withdrawn on 11-9-2003 to convert the S.A.O. Into a writ petition as per order dated 2-10-2002. The amended writ petition was filed on 19-9-2003. The S.A.O. On conversion was renumbered and heard as Writ Petition. No,13955 of 2003.
5. The learned counsel for the petitioner expressly stated that the only litigated question in this writ petition was that of the subletting of the demised premises and the issue of default stood settled against the petitioner in the subordinate courts.
6. The learned counsel for the petitioner argued that the findings of the learned courts below on subletting were erroneous and the learned courts below misunderstood petitioner's case to have been developed on the premise that Syed Akhtar Ali; the purported sub-lessee was not a member of the 'family' under Clause 2 of the Agreement (Exh.P.10). The learned counsel conceded that respondent No,2 Syed Akhtar Ali as the brother of respondent No,1 Syed Saeed Ali, was a member of his family and respondent No,2 under clause 2 of the Agreement could use the demised plot. But the petitioner's case was that respondent No,1; the tenant and his brother/respondent No,2 formed a partnership firm to whom the premises in dispute was sublet by transferring the tenancy interest without the written permission of the petitioner.
' The learned counsel also conceded that had it been a partnership only in the business on the demised plot, there would be no subletting. But that here the interest in tenancy was transferred by the original tenant i,e, respondent No,1 to the firm and thus to his brother. The rent note (Exh.P.10) was executed between the landlord and the tenant i,e, Syed Saeed Ali allowing in clause 2 the use of the demised premises "by the tenant and his family as a motor workshop and office only", with the rider that the tenant was not to assign the lease or to let or underlet the same without a prior written consent of the landlord. But the tenant instead of using and utilizing the demised premises for himself and for his family (including his brother) executed a registered Partnership deed dated 3-1-1963 (Exh.R.18) to run an automobile workshop and to manage the affairs and the business of such workshop . Article 12 of the partnership deed stipulated that on the death of a partner, the surviving partner was to continue running the business. And that this amounted to the transfer of the tenancy rights to any surviving partner. And as this legal position was overlooked, the present Constitutional petition was maintainable in view of the case titled Lal Din Masih v. Mst. Sakina Jan and another 1985 SCMR 1972. Also that in the joint reply/written statement (Exh.D-1), the respondent admitted Syed Saeed Ali to be a tenant under the rent note/agreement (Exh.P.10) though they continued to state that Syed Saeed Ali was not the sole tenant but it was a tenancy along with the family members i,e, inclusive of Syed Akhtar Ali i,e, brother of Syed Saeed Ali. And that under Clause 2 of the rent note/agreement, only a licence for the use of property by the family was given while the tenancy vested in Syed Saeed Ali who had no permission to transfer the tenancy interest to any family member. The learned counsel for the petitioner relied upon the cases of Manek J. Mobed and another v. Shah Behram and others PLD 1974 SC 351, Habibullah v. Rent Controller, Peshawar 1998 SCMR 2656/2657 for the proposition that the transfer of interest or surrender of tenancy to a firm amounted to subletting though creation of only a business partnership was not subletting.
7. Contrarily, the learned counsel for the respondents supported the impugned judgments by contending that the law and the covenants in Exh.P.10 had been correctly appreciated and interpreted therein. And that clause 2 read with clause 5(b) allowed the executant of the agreement and his family to construct workshop and office building at their own expense for running the business of workshop .And this proved that the tenancy rested with the family whose two members entered into a partnership deed, only for running and managing the business of the workshop. And that there was no subletting to any other person.
' Further that in terms of Oxford and Webster's Dictionaries and the case decided by the Hon'ble Supreme Court of India titled Baldev Sahi Bangia v. R.C. Bhasin 1983 PSC 252, the word 'family' was defined to include all the members descending from one ancestor. The words "let for use" were defined to constitute tenancy in the family and its members. Further that the partnership deed (Exh.R.18) did not mention the tenancy or its transfer and constituted partnership between the two brothers only to run and manage the business. And that the two brothers jointly paid the rent through cheques at times with signatures of one or the other or otherwise. And that the rent so paid was duly accepted.
' Further contended that the scope of the constitutional petition was restricted than the scope of an appeal wherefor this Court had no jurisdiction to re-evaluate and re-appreciate the evidence in exercise of the extraordinary constitutional powers. And that the writ was maintainable only if the impugned order were wholly void, without lawful authority, coram non judice or mala fide as held in the cases of Muhammad Zahoor and another v. Lal Muhammad and 2 others 1988 SCMR 322 and General Manager, Pearl Continental Hotel v. Farhat Iqbal PLD 2003 SC 952. And that none of the above grounds were urged.
' Further that as both the original respondents (Syed Saeed Ali and Syed Akhtar Ali) had died and their L. Rs, were succeeded as the tenants being their descendants or family members wherefor they could not be termed as the subleases.
' Also that the Rule of Waiver estopped the petitioner landlord to raise a question of subletting after thirty years of the establishment of the joint business in partnership by the brothers since 1962/1963. The Registration Certificate of the Firm was a public document. And that in the earlier ejectment petition of 1976, the petitioner did not seek ejectment of the respondents on the ground of subletting.And that the petitioner had the knowledge but raised no objection thereto.
1. Heard.
2. The question herein involved were that:-- i. Whether on the cumulative reading of the 1962 rent note/agreement (Exh.P.10) and the partnership deed (Exh.R.18) between the two respondent brothers constituted subletting of the demised premises by the original respondent No,1 to the original respondent No,2 exposing them to eviction from the demised premises; ii. What was the effect of the covenant in clause 2 of the rent note/agreement (Exh.P.10) allowing use of construction on and business in the demised premises by "the tenant and his family" and was it contravened by the respondents; iii. Whether petitioner's plea of subletting could be deemed to have been acquiesced in or waived under the Rule of Waiver by inaction of the petitioner for a period of thirty years from 1963's partnership to 1993's eviction petition; and
(iv) As to whether the present constitutional petition was maintainable under the principles settled by the Hon'ble Supreme Court of Pakistan in the cases of Muhammad Zahoor and another v. Lal Muhammad and 2 others 1988 SCMR 322, General Manager, Pearl Continental Hotel v. Farhat Iqbal PLD 2003 SC 952 and Lal Din Masih v. Mst. Sakina Jan and another 1985 SCMR 1972.
10. The learned subordinate Courts, on their reading of the rent note/agreement dated 20-3-1962 (Exh.P.10) and the registered partnership deed dated 3-1-1963 (Exh.R.18) and also the evidence, held that Syed Saeed Ali i,e, the original tenant and respondent No,2, being the family members, did not contravene Clause 2 of Exh.P.10.And the business partnership between Syed Saeed Ali and his brother Syed Akhtar Ali (the original respondents) did not constitute subletting of the demised premises. And also that the brothers were the members of one family entitled to carry on business of the workshop and its management in partnership created through 1963's registered partnership deed (Exh.R.18)
11. The case of the petitioner was that under the Partnership Deed, interest in the tenancy was transferred by the original respondent No,1 to the firm and thus to his brother (the original respondent No,2). This created sub-tenancy exposing the respondents to eviction. The learned Courts below thus misinterpreted the documents and the law.
' The learned counsel for the petitioner candidly conceded that:-- i. The original respondents brothers were the family members and could use the demised premises under the rent note/agreement (Exh.P.10); and ii. Under the settled law, mere partnership between the brothers to set up and manage the business on the demised premises did not constitute subletting.
12. The combined effect of the express admission of the learned counsel for the petitioner and the question raised was that the original respondents being the family members in terms of clause 2 of Exh.P.10, were entitled to set up the business of automobile workshop in partnership but were not competent to sublet the demised premises to the firm.
13. In any case the brothers, parents, children and cousins being blood relations and descendants of a common ancestor, are the members of a 'family' as defined in the Blacks Law Dictionary (6th Edition), the Concise Oxford Dictionary (3rd Edition) and the Webster's Dictionary.
In the case of Baldev Sahi Bangia v. R.C. Bhasin 1983 PSC 252, the Supreme Court of India while interpreting the words "family members" as used in section 14(1) Proviso (d) of Dehli Rent Control Act, (59 of 1958) held that the mother, brother and sister were the family members of the main tenant, entitled to continue occupation of the rented premises on exit of the main tenant and were to be treated as the tenants under the said law. Reference was also made to Govind Dass v. Kuldip Singh AIR 71 Del. 151 and the King's Bench decision of "Price v. Gould (1930 143 LT 333).
' In the instant case, it has however, ceased to be an argument that Syed Akhtar Ali and his real brother Syed Saeed Ali, were not the members of the family.
14. Examined in the above perspective, the covenant contained in clause 2 of the rent note/rent agreement (Exh.P.10) stipulated as under:- "The demised premises shall be used by the tenant and his family as a motor workshop and office only and that the tenant will not assign his lease neither let nor underlet the demised premises without first obtaining the written consent of the landlord."
' The petitioner conceded that this clause allowed the use and utilization of the demised premises to the tenant and his family. His contention but was that only a licence was given to the tenant's family to use the demised premises along with the tenant.
15. I am afraid, the interpretation placed by the learned counsel for the petitioner upon this clause was both contextually and textually, not aligned with the opening part, the habendum, the covenants, the undertakings and the intent of the document which was to be read as one whole, coherent and complete agreement between the parties. Exh.P.10 was signed as an executant by Syed Saeed Ali yet in the description of parties he was nomenclature as the "tenant/tenants" to whom one Kanal open plot was demised "subject to all the terms, conditions, covenants and agreements laid down therein." Under Clause-2, the demised premises was stipulated to be used as a motor workshop and office by "the tenant and his family" who were referred to as 'tenants' in the parties part and as 'they' in clause-5 and were allowed to construct building, shed, workshop or office on the demised premises. The agreement admittedly granted a commercial lease for a business purpose and a joint venture to be set up by "the tenant and his family" where they were to jointly put the constructions for their business at their own cost. The period stipulated in Exhs.P.10 was 11 months to save registration and stamp duty but the lease was intended and meant to be a long period lease under the Rent Restriction Ordinance, 1959 on expiry of the formal period.
Cumulative and considered reading of Exh.P.10 revealed that the term "tenant/tenants" was interchangeably used for "the tenant and his family" who held the dominant and beneficial lease hold interest as the tenants of the demised premises from the beginning. They were intended to have and to hold the tenancy rights of the premises jointly for the business of vehicular workshop and office. The petitioner landlord had also been accepting the rent through the cheques or otherwise from the firm account with signatures of either one or the other of the original respondents. And for thirty years he did not raise an objection thereto neither did he seek eviction of the respondents on the ground of subletting. The landlord could not have slept over his rights from 1963 (Exh.R.18 registration date) to 1993 (the eviction petition date) and could not have merely omitted to plead subletting as a ground in his 1976 ejectment petition. If he so did despite knowledge, he obviously acquiesced in and abandoned his right to object to the subletting (if any).
Under the principles settled in the cases of Ghulam Muhammad and 2 others v. Zia Anwar and 3 others (PLD 1978 Lahore 1054), Najamuddin v. Zamir Ahmad (PLD 1982 Karachi 188), Mst. Hawa Bai and another v. Mst. Rashida Khatoon and another (1989 MLD 601) and Rehmat Khan and 3 others v.
Rehmat Khan and another (PLD 1991 SC 275), inaction for such a long time amounted to acquiescence and waiver, estopping an action on the abandoned ground.
16.The argument of the petitioner's counsel on Clause-2 of Exh.P.10 is self-defective that only use of the demised premises was allowed to 'the tenant and his family' thus a licence for the family and not the lease. If this clause was meant to be only a licence clause for "the family" then a suitable expression restricting "the use" of the property to the family would have been employed. The term 'tenant' therein would not have been used because the tenant signed as the lessee and held the lease or the tenancy rights for the use and utilization of the demised premises against payment of rent and did not need a licence from the landlord. Had it been a licence clause for the family, the words could have been that "the landlord permits the demised premises to be used by the tenant's family as well". In Clause 2 of Exh.P.10, the words "the tenant and his family" were intended to be conjunctive and joint or at least interchangeable. The partnership between the two brothers therefore was in consonance with the rent agreement (Exh.P.10) and its purpose.
17.1963 Partnership Deed (Exh.R.18) when read as a whole, reinforces the proposition that the partnership was made between the two brothers to formalize the business of workshop being run by them jointly since 1962 with the objects to inter se define their rights and duties, their capital investment, profit and loss ratio, regulation, management, sales promotion and accounting etc. Article 12 of the Partnership Deed could not be interpreted to transfer tenancy rights. This Article protected the partnership business on death of a partner without naming the partner. No reference therein was made for the transfer of the tenancy. The argument of the petitioner's counsel is thus not intelligible. On whose death should the transfer of tenancy interest, be presumed and upon whom. If the business firm was to be continued by the surviving partner(s), the tenancy rights were to continue as before.
18.There is nevertheless no clause in the Partnership Deed as to the tenancy or its alienation. The firm was constituted only for the running and managing of the business of automobile workshop on the demised premises by the two partner brothers who ever otherwise were entitled to use the demised premises.
19.The learned Rent Controller, or, due appreciation of the evidence through order dated 7-5-1997, held that:-- "There is no independent evidence to prove that the premises were sublet by the respondent and that he is no more in the control and possession of the rented premises. It is not necessary that the tenant must remain in immediate possession but the mediate possession is also sufficient to rebut the ground of subletting. The respondent himself has denied this ground and by inducting his real brother in the business ever since the creation of the tenancy, it cannot be held that he has become liable for eviction on the ground that he has sublet the premises to his real brother without the consent in writing of the landlord........
20.The learned first appellate Court through judgment dated 20-2-1999 also observed that:- "Clause 2 of the said agreement reveals that the premises were to be used by the respondent and his family to run a motor workshop and office. Certainly Syed Akhtar Ali shah is real brother of the respondent and his family member. Even said Akhtar Ali Shah admittedly as recorded by R.W.1 issued two cheques in favour of father of the petitioner which were for the months of June and September, 1984.......
And that .......the very agreement of rent permitted the respondent to associate his family members for the purpose of running a workshop and, therefore, his brother Syed Akhtar Ali Shah was not a sub- lessee Therefore, the question of subletting of the premises or use of the premises for purposes other than that it was let out to the respondent, does not come up. Detailed findings of learned Rent Controller are confirmed on these issues as well."
21.There was thus no divesture of interest or right by Syed Saeed Ali to create the purported sub- tenancy upon execution of the partnership deed. It was validly held in the impugned judgments by the learned Courts below that neither there was subletting nor could the issue of subletting be made a ground for eviction of the respondents from the demised premises.
22.Furthermore, the disputed questions of fact were resolved through a concurrent opinion by the learned subordinate courts enjoying lawful authority and jurisdiction on the subject-matter of the case. It has not been shown that the impugned judgments were void ab initio or suffered from the lack of jurisdiction or were mala fide or fundamentally erroneous. As such in view of the law declared in the cases of Muhammad Zahoor and another v. Lal Muhammad and 2 others 1988 SCMR 322, General Manager, Pearl Continental Hotel v. Farhat Iqbal PLD 2003 SC 952, the present constitutional petition as filed was unmaintainable .
23.This petition is accordingly dismissed. There shall however be no order as to the costs.