' ALI SAIN DINO METLO, J.--- Petitioner Chaudhry Saecd Mehmood, claiming to have obtained possession of a Shop bearing No,5-A, Falaknaz Heights Shahrah-e-Faisal, Karachi from its original tenant Tayyab Khan, has challenged judgment, dated 4-3-2006 of the District Judge, Karachi East; dismissing his appeal on the ground that he, being a sub-tenant, had no right independent of his own to file appeal against the ejectment order passed by the any Controller. In the ejectment application before the Rent Controller Tayyab Khan was opponent No,1 but the petitioner in his appeal before the District Judge as well as in the present constitutional petition did not show him as a party.
2. Briefly, the facts, as can be gathered from the record, are that on 18-12-2002, under a written agreement of tenancy, Tayyub Khan obtained the shop in question on rent in his personal name from its owner Muhammad. Anwar at a monthly rent of Rs,8,000 for the purpose of doing business of travel agency. In paragraph No,6 of the agreement it was specifically mentioned that the tenant shall not sublet the shop or any portion of it to anybody else under any circumstances. On 3-4- 2004 Muhammad Anwar (respondent No,3) sold the shop to Zeeshan Ali and Imran Ali (respondents 4 and 5) by a registered sale-deed.
3. On 4-1-2005 the petitioner filed an application bearing R.C. No,1 of 2005, under section 11 of the Sindh Rented Premises Ordinance, 1979 in the name of Messrs Al-Hafeez International Travels, against previous owner Muhammad Anwar, and sought restoration of electricity and telephone connections, Which were in the name of original tenant Tayyab Khan, contending that he was partner in business with him (Tayyab Khan) but after bringing an end to the partnership in January, 2004 Tayyab Khan left the business and the landlord accepted him as tenant; further alleging that in the month of December, 2004, the previous owner in collusion with the original tenant asked him to vacate the shop and, on his refusal, threatened to get it vacated by force and in order to achieve his ulterior object disconnected electricity and telephones of the shop.
4. Muhammad Anwar, in his written statement filed on 22-2-2005 in petitioner's Rent Case No,1 of 2005, contended that he had rented out the shop to Muhammad Tayyab under a written agreement of tenancy and had nothing to do with the petitioner. He denied to have accepted him as tenant at any time. According to him, after selling the shop to respondents 4 and 5 on 3-4-2004, he had nothing to do with the shop and, therefore, the question of his asking the petitioner or for that matter anybody else to hand over its possession to him or disconnecting its electricity or telephones did not arise; further contending that he had received rent from the original tenant upto March, 2004 and had asked him to pay rent to the new owners (respondents 4 and 5) from April, 2004. The petitioner did not produce any evidence and did not pursue his case which was ultimately dismissed for non-prosecution on 26-10-2005.
5. In the month of January, 2005, respondents 4 and 5 (new landlords) filed application bearing Rent Case No,35 of 2005 against original tenant Tayyab Khan and the petitioner, contending that the tenant had failed to pay them rent from April, 2004, notwithstanding the fact that he was informed by them as well as by the previous owner about the sale of shop in their favour; further alleging that he (the original tenant) had unlawfully handed over possession of the shop to the petitioner without their consent.
6. In written statement Tayyab Khan admitted that he had not paid rent from April, 2004 notwithstanding the fact that he had the knowledge and was informed by them (respondents 4 and 5) as well as by the previous owner about their purchasing the shop. He also admitted to have handed over possession of the shop to 'the petitioner without consent, written or verbal, of the owners (respondents 4 and 5) as, according to him, it was not necessary.
7. In his written statement, the petitioner contended that he was partner in business with original tenant Tayyab Khan and after bringing an end to the partnership in March, 2004 the tenancy developed upon him with consent of the previous owner to whom he had paid rent upto March, 2005, according to paragraph 2 of the written statement, directly, and according to paragraph 6, through original tenant Tayyab Khan.
8. On the application of the new landlords under section 16(1) of the Sindh Rented Premises Ordinance, 1979, requesting for directing the original tenant to deposit arrears of rent at the admitted rate of Rs,8,000 per month from April, 2004 as well as regular monthly rent which were admittedly not paid to them, rent order was passed by the Rent Controller on 20-5-2005 and the rent was directed to be deposited with effect from April, 2004. The original tenant did not deposit any amount. However, the appellant deposited Rs,24,000 (purported to be rent for April, May and June, 2005) on 10-6-2005 and thereafter monthly rent every month in time, but the arrears of rent from April, 2004 to March, 2005 were not deposited at all and, therefore, by an order dated 8-8- 2005 passed on application under section 16(2) (ibid) filed by respondents 4 and 5, defence of tenant was struck off and possession of the shop was directed to be given to them within 60 days thereof.
9. In the appeal filed by the petitioner, the ejectment order was suspended on 28-10-2005 subject to his depositing Rs,96,000 (Equivalent to rent of 12 months from April, 2004 to March, 2005) by 2-11- 2005. The amount was deposited by him on 31-10-2005. However, ultimately on 4-6-2006 the appeal was dismissed by the District Judge holding that the petitioner, having failed to show, even prima facie, that he was a tenant, had no legal right to challenge the ejectment order passed under section 16(2) (ibid).
10. Mr. Iftikhar Javaid Qazi, learned counsel for the petitioner argued that the petitioner was partner in business with the original tenant and the previous landlord, having not objected to his presence in the shop and having accepted rent from him upto March, must be deemed to have accepted him as tenant. He also argued that the rent order was not very clear and specific and, therefore, its violation could not entail ejectment. Lastly, he argued that, even if it was found that the petitioner was not acknowledged as tenant, he being in possession of the shop must be deemed to be tenant as defined under section 2(j) (ibid). He cited a number of authorities i,e, PLD 1968 Lah. 20; PLD 1986 Lah. 20; PLD 1986 Kar. 117; 1982 CLC 2004; 1983 CLC 1714; 1984 CLC 2684; 1984 CLC 2682, 1985 CLC 1550; 1987 MLD 707; 1990 CLC 1170; 1991 CLC 385; 1992 MLD 323; 1993 CLC 519; 1993 CLC 761; 1993 MLD 2196; 1994 CLC 1522; 1995 CLC 1655; 1997 CLC 1085; 1997 SCMR 1775 and 2003 CLC 278.
None of these authorities advance petitioner's case and on the contrary many such as PLD 1986 Lah. 20; PLD 1986 Kar. 117; 1997 SCMR 1175, go against him. In the latter, Honourable Supreme Court has held that transfer of business by the original tenant to another person clearly comes under the mischief of subletting. In the former two, it has been held that a subtenant has no independent right of his own and has to stand or fall with the tenant and has no locus standi to file appeal when the original tenant has not appealed against his ejectment. The remaining authorities cited by the learned counsel are not very relevant to the facts of the present case and are distinguishable.
11. Indeed, there is no force in the contentions of the learned counsel. The written agreement of tenancy clearly shows that the tenancy was in the personal name of the original tenant and notwithstanding the prohibition on subletting contained in section 15(2)(iii)(a) (ibid), paragraph 6 of the agreement conspicuously provided that the tenant shall not sublet the shop or any portion of it to anybody else under any circumstances. In presence of such clear statutory as well as contractual prohibition, there is no weight in the argument that the petitioner was verbally acknowledged as tenant. Indeed, there is nothing in support of his contentions that the previous owner had acknowledged him as tenant or received rent from him in his name upto March, 2005.
Firstly the original landlord having sold the property on 3-4-2004, had no right to receive rent after March, 2004; secondly, the original landlord clearly stated that he had received rent only from the original tenant and that too upto March, 2004 and categorically denied to have received any rent from the petitioner; and thirdly, the petitioner has himself wavered in his stand by stating, at one place, that he had paid rent to the previous owner directly and, at the other, that he had paid him rent through the original tenant. Moreover, it is difficult to believe that the petitioner paid rent to the original tenant even after filing the Case bearing No,1 of 2005 on 4-1-2005.
12. As regards the plea of ambiguity in the rent order it may be mentioned that the original tenant had admitted that rent had not been paid after March, 2.004 and the order clearly directed for depositing the arrears of rent from April, 2004 and admittedly the arrears of 12 months were not deposited till 31-10-2005 when the same were deposited by the petitioner under the order of the District Judge as a condition for - suspending the operation of the ejectment order pending decision of appeal before him.
13. The contention of the petitioner's counsel that according to the definition of tenant contained in section 2(j) (ibid), the petitioner has to be treated as tenant is also without any force. The definition referred to reads:-- "tenant" means any person who undertakes or is bound to pay rent as consideration for the possession or occupation of any premises by him or by any other person on his behalf and includes--
(i) any person who continues to be in possession or occupation of the premises after the termination of his tenancy;
(ii) heirs of the tenant in possession or occupation of the premises after the death of the tenant."
14. Under the above definition two kinds of tenant have been recognized. First contractual tenant, who undertakes to pay rent and is bound as such to pay it during the contractual period of tenancy, and second statutory tenant who is bound to pay rent by the operation of law, such as a contractual tenant continuing possession of the premises after expiry of contractual period of tenancy or heir of a tenant in possession or occupation of the premises after the death of the tenant. Except for these categories, no either category, including heirs not in possession or a subtenant, is recognized as tenant under the law.
15. It will be a fallacy to say that anybody who happens to possess or occupy property of somebody else becomes tenant in respect of that property. One may be in possession in other capacities also, such as, trespasser, licensee, mortgagee etc. All owners may not be landlords of possessors or occupiers of their properties and all possessors or occupiers may not be tenants of the owners. Mere ownership may not be sufficient for conferring the status of landlord and mere possession or occupation may not be sufficient for conferring the status of tenant. In this regard reference may also be made to the case Hafeezuddin and 2 others v. Badaruddin and 2 others reported in PLD 2003 Kar.
444.
16. This Court has consistently held that a subtenant has no independent right of his own and has to stand or fall, sail or sink with the tenant and has no right to claim tenancy or pay rent or file appeal against orders of ejectment when the tenant has not appealed. Reference can be made to the cases of Abdul Rauf v. Nawab Ali and 3 others PLD 1986 Kar. 117, Pakistan State Oil Company Limited v. Sikandar A. Karim 2005 CLC 3 (Karachi) and Mrs. Ruby Misso v. Mrs. Kaniz Fatima and others 1990 CLC 1320 (Karachi). There is no reason for taking a different view.
17. In view of the above mentioned facts, circumstances and the legal position, it is clear that the petitioner is a subtenant and not a tenant and, therefore, has to go with the original tenant and the learned District Judge has rightly dismissed his appeal. The present petition, being meritless, is dismissed with cost. However, subject to his depositing Rs,8,000 on or before 5th of every month in advance with the Rent Controller, the petitioners is allowed time of four months to vacate the premises and hand over its possession to respondents 4 and 5 and in default the Rent Controller shall straightaway issue writ of possession with police aid without any further notice to him.