Ch. Ejaz Yousaf, J.--We propose to dispose of these three petitions for leave to appeal through this common judgment as it relate to one and the same property i,e, No, SR-6/3 & SR-6/4, situated on Frere Road and South Nepair Road, Karachi, commonly known as 'Yousufali Alibhoy Karimji Building' a portion whereof is claimed to be occupied by the petitioner as a lawful sub-tenant.
CPLA No, 445-K of 2006 is directed against judgment dated 10.8.2006 passed by the High Court of Sindh, Karachi whereby C.P. No, , S-593/04 filed by the petitioner was dismissed and learned Rent Controller was directed to proceed with the execution applications filed by Respondents No, 1 to 3 in accordance with law.
C.P. 446-K of 2006 is directed against judgment dated 10.8.2006 passed by the High Court of Sindh, Karachi, whereby C.P. No, S199/2006 filed by the petitioner against the orders dated 10.1.2004 and 19.7.2004 dismissing the petitioner's FRA No, 266/2001 (Old No, 669/98) for non-prosecution, was dismissed.
CP 447-K of 2006 is directed against judgment dated 10.8.2006 passed by the High Court of Sindh at Karachi whereby C.P. No, S- 724/2004 filed by the respondents was allowed, order dated 5.10.2004 passed by the VIth Additional Sessions Judge, Karachi was set-aside and order dated 18.3.2004 passed by the learned Rent Controller was restored.
2. This case has a chequered history. However, the facts of the case, as gathered from the available record can be summarized as that originally there were two plots i,e, No, SR-6/3 measuring 1280 Sq. yards and Plot No, SR-6/4, measuring 633 sq. yards on Frere Road and South Napier Road, Karachi owned by M/s. Yusufali Alibhoy Karimji and Company, a registered partnership firm. Later on, both the plots were amalgamated and a building was constructed thereon consisting of ground and first floor known as 'Yusufali Alibhoy Karimji Building". In the year 1947, the said owner let out 2 tenements namely offices and Godowns Nos, 1 and 4 to Respondent No, 4, namely, M/s. Tar Muhammad Haji Jamal, on rent, as a tenant with the permission to sublet the same to sub-tenants and to collect rent of the said premises from them. In pursuance of the above agreement the Respondent No, 4 let out various shops and godowns to sub-tenants.
It is claimed by the petitioner that in the year 1979, Respondent No, 4 let out a separate and independent shop on ground floor to the petitioner on a rent of Rs,125/- per mensum and upon payment of pagri in the sum of Rs, 2,50,000/- The rent was increased finally to Rs, 270/-excluding water and betterment tax. The petitioner after acquiring tenancy right in the said shop started running business therein and paid rent to the Respondent No: 4 upto the month of November, 1995 and thereafter, deposited the same in MRC No, 1428/2005 in the Court of IIIrd Sr Civil Judge, Karachi (South).
Two rent cases were filed by Yusufali Alibhoy Karimji and Company, against Respondent No, 4 in the Court of Rent Controller, Karachi (South) for seeking ejectment on the ground of subletting. The said rent cases ended into compromise wherein it was agreed that Respondent No, 4 would be competent to sublet the premises to various tenants.
In the year 1992, Yusufali Alibhoy Karimji and Company, filed Rent Case No, 1631 of 1992 against Respondent No, 4 seeking ejectment on the ground of default in payment of rent, however, the ground of subletting was not taken in the said case. It is alleged that the petitioner and other tenants were not made party to the above proceedings. In the said Rent Case i,e, No, 1631 of 1992 the Respondents No, 1 to 3 on the basis of a sale-deed, moved an application under Order I Rule 10 CPC for substitution in place of the original owner M/s. Yusufali Alibhoy Karimji and Company, which was allowed vide Order dated 5.5.1997.
It is alleged by the petitioner that on 1.4.1997 a group of labourers claiming to have been hired/ engaged by the Respondents No, 1 to 3, started demolishing and damaging the said building, therefore, the petitioner along with 5 other sub-tenants filed Suit No, 403 of 1997 for permanent injunction against Respondents Nos, 1 to 3. During pendency of the said Suit, the petitioner and other subtenants filed applications under Order I Rule 10 CPC for impleadment as party in Rent Case No, 1631 of 1992, which were dismissed for non-prosecution on 16.4.1998 by the Rent Controller.
Subsequently, on 22.4.1998, the ejectment application filed by the Respondents No, 1 to 3 in Rent Case No, 1631/1992 was allowed against Respondent No, 4 in respect of two tenements i,e, No, 1 and
4. The petitioner being aggrieved from the orders dated 16.4.1998 and 22.4.1998 preferred FRA No, 66 of 1998 before the High Court of Sindh which was dismissed vide judgment dated 24.11.1998. Against the said judgment, the petitioner preferred C.P.L.A. No, 38-K of 1999 before this Court which was converted into appeal and disposed of with consent of the parties vide order dated 10.6.1999 and matter was remanded for fresh decision after affording opportunity to the parties to lead further evidence, if any.
After remand, FRA No, 226 of 2001 was dismissed on 10.1.2004 for non-prosecution; for the reason that proprietor of the petitioner firm could not appear for his cross-examination. The petitioner moved an application under Order 41, Rule 19 for setting aside the order dated 10.1.2004 which was also dismissed vide order dated 19.7.2004 against which the petitioner filed C.P.No, S-199/2006 before the High Court of Sindh, Karachi, which was dismissed vide judgment dated 10.8.2006, impugned in C.P.L.A. No, 446-K of 2006.
Respondents No, 1 to 3 filed execution Application No, 37/98 against Respondent No, 4 which was allowed vide order dated 10.9.1998. The said respondents also moved an application for issuance of writ of possession in the said execution but was dismissed vide order dated 10.10.2001. The said respondents then filed an application for review of the order which was also dismissed vide order dated 17.4.2001. The respondents then filed FRA No, 84/2001 against the order dated 9.1.2001 and 17.4.2001 which too was dismissed by 1st Addl. District & Sessions Judge vide order dated 24.5.2001. It was specifically stated by the petitioner before the High Court that Respondents No, 1 to 3 did not challenge order dated 24.5.2001 in FRA No, 84/2001 before the High Court.
The petitioner on 3.3.2004 moved an application under Order XXI, Rule 99 and 100 read with Section 151 CPC in the said execution Application No, 37/98 which was dismissed vide order dated 18.3.2004.
The petitioner then filed appeal FRA No, 58 of 2004 against order dated 18.3.2004 passed by the Court of VIth Addl. Sessions Judge, Karachi which was allowed vide order dated 5.10.2004. Against the said order the Respondents No, 1 to 3 filed C.P.No, S-724 of 2004 which was allowed, order dated 5.10.2004 was set-aside and the order dated 18.3.2004 was restored against which C.P.L.A. No, 447-K of 2006 has been filed.
Against the order dated 18.3.2004, dismissing the writ of possession, Respondents No, 1 to 3 filed FRA No, 46 of 2004 before the Vth Additional District & Sessions Judge, Karachi (South), which appeal was allowed vide order dated 31.5.2004 and order dated 18.3.2004 was set-aside. Being aggrieved the petitioner filed CP. No, S-593/2004 before the High Court of Sindh, Karachi, which was dismissed vide the judgment impugned in C.P.L.A. No, 445-K/2006.
3. Learned counsel for the petitioners has contended; that the Courts below have gravely erred in not appreciating the fact that the petitioner was duly authorized sub-tenant in the premises as Respondent No, 4 M/s. Tar Muhammad Haji Jamal was authorized by the real owner i,e, M/s. Yusufali Alibhoy Karimji & Co. to sub-let the premises; that the petitioner ought to have been joined as a necessary party in the Rent Case as well as in the execution application because the petitioner was in possession of the rented premises in capacity of a lawful tenant since 1979; that since the petitioner was not a party to the ejectment proceedings and Respondents No, 1 to 3 were trying to execute the order against the petitioner under the garb and clog of ejectment order obtained against Respondent No, 4, a dead person, therefore, it was ineffective against the rights of the petitioner; that the ejectment order could not have operate against the petitioner as it was passed regarding Tenements No, 1 & 4 while the petitioner was in possession of a distinct and separate property.
4. M/s. Malik Muhammad Qayyum and Mansoorul Arfin, learned counsel for the respondents, on the other hand, while controverting the contentions raised by the learned counsel for the petitioner have stated that since the premises was unauthorisedly occupied by the petitioner, therefore, he had no locus standi to file application under Order I Rule 10 CPC in Rent Case No, 1631/92 out of which this petition has arisen, praying that he may be joined as a party. They have stated that though it is claimed by the petitioner that he was lawful tenant and was inducted in the premises by Respondent No, 4 M/s. Tar Muhammad Haji Jamal yet, an iota of evidence was not available on record that he had paid rent to the owners i,e, Respondents No, 1 to 3. They have added that seeking permission to deposit rent in MRC 1428/95 in the name of Respondent No, 4 before the Rent Controller indicates that rent was never paid to the original owner, otherwise deposit would have been made in the name of the owner. They further added that claim of the petitioner regarding induction as an authorized sub-tenant in the' premises in the year 1979, was patently false because Respondent No, 4 M/s. Tar Muhammad Haji Jamal, at that point of time themselves were not authorized to sublet the premises. They maintained that in the circumstances the petitioner had, no right or locus standi either to become a party to the proceedings or to abstract or delay the execution. They have further submitted that petitioner was claiming tenancy rights through Respondent No, 4 against whom ejectment order was passed, therefore, the petitioner was bound by the said order and liable to be ejected. Hence petitions being misconceived, may be dismissed.
5. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused record of the case, minutely, with their assistance.
6. As to the first contention raised by the learned counsel for the petitioner that the Courts below have gravely erred in not appreciating the fact that the petitioner was duly authorized sub tenant in the premises as Respondent No, 4 M/s. Tar Muhammad Jamal was authorized by the "real owner" M/s. Yusufali Alibhoy Karimji. & Co. to sublet the premises, it may be pointed out here that, as per record, the entire building, a part whereof is allegedly occupied by the petitioner, originally belonged to M/s. Fazle Abbas s/o Ghulam Hussain Asgher, Akber, Hansain, Nooruddin, Muhammad Ali, Munawar Ali, Abid Hussain and Fatima Bai, and M/s. Yusufali Alibhoy Karimji & Co., to whom Respondent No, 4 M/s. Tar Muhammad Haji Jamal used to pay rent, was only a Rent Collector on their behalf. Statement of Anwar Ali, a partner of M/s. Yusufali Alibhoy Karimji & Co. made in Rent Case No, 1026/1987 titled as Yusufali Alibhai Karimji & Co. versus M/s. Tar Muhammad Haji Jamal & Co. which was later on compromised and in pursuance thereof M/s. Tar Muhammad Haji Jamal were authorized to further sublet the premises, is explicit in this regard. The relevant portion of the statement reads as follows:-- "Since 1942 I am partner in the firm of applicants. The premises was let out to the opponent by the applicants. It is correct that M/s. Fazle Abbas s/o Ghulam Hussain Asgher, Akber, Hansain, Nooruddin, Muhammad Ali, Munawar Ali, Abid Hussain and Fatima Bai are the owners of the premises in question, but the applicants are attorney of the above persons. It is correct that the applicants are not owners of the property in question.
There is no written rent agreement in between the applicants and the opponents voluntarily says that opponent was not authorized to sublet the premises. I am looking after the building since 1947.It is incorrect to suggest that the opponents authorized to construct the small offices and shops in the building and letout the same to the tenants without our Permission.
It is the claim of the petitioner that said "real owner' i,e, M/s. Yusufali Alibhoy Karimji & Co. filed Rent Case No, 1026/1987 against the original tenant, i,e, Respondent No, 4, M/s. Tar Muhammad Haji Jamal, in the Court of 1st Senior civil Judge & Rent Controller (South) Karachi, for ejectment on the ground of subletting which ended into a compromise and by means thereof the original tenant i,e, Respondent No, 4, Tar Muhammad Haji Jamal, was authorized to sublet the premises to various tenants with the permission of the said "real owner" vide order dated 30.3.1988. It would be pertinent to mention here that though the petitioner was not a party to the said proceedings yet, in order to establish that he was a "lawful sub-tenant", he has relied thereon. In order to fully appreciate the controversy, we deem it appropriate to reproduce the above order dated 30.3.1988 in extenso, which reads as under:-- "APPLICATION U/O 23 RULE 3 CPC The parties have settled their dispute as under:--
1. That in future after doing all or any of the acts complained of in this case, the opponent will intimate the same to the applicant.
2. It is, therefore, prayed that, this Hon'ble Court may be pleased to dismiss the above suit in terms hereof.
Karachi Dated 28.3.1988 Sd/- Advocate for applicant Sd/- Partner of applicant Sd/- Advocate for opponent Sd/- Partner of opponents
Contents of this application are read over to the party in Urdu, who accept it to be true and correct.
In view of the joint statement given by the party case is disposed of in the terms of compromise.
Announced in the open Court this the 30th day of March, 1988.
Sd/- 30.3.1988 (Hussain Bakhsh Khoso)
1st Senior Civil Judge, Karachi South" It appears that an agreement i,e, Ex.P.20 was also executed in this regard (Stamp affixed thereon is dated 23.12.1987 whereas, Notary Public's attestation date is 23.12.1988), between the parties, whereby the said tenant was duly authorized to let out the premises to subtenants however, perusal thereof reveals that prior thereto M/s.. Tar Muhammad Haji Jamal were not authorized to let the premises on rent to any body else. Learned Judge in the High Court while taking notice of the situation has in the impugned judgment, observed that on the basis of receipts (as per note/terms and conditions printed on both the annexures i,e, P-7 and P-8, the rent receipts), issued by M/s. Yuusufali Alibhoy Karimji and Co. to M/s. Tar Muhammad Haji Jamal, it was clear that Respondent No, 4 M/s. Tar Muhammad Haji Jamal was not competent to sublet the premises or transfer it to any third party. Relevant extract from the impugned judgment is reproduced hereunder:-- "There is no proof on record that the previous owner was M/ s. Yousaf Ali Alibhoy Karimiji and Co. who issued any receipt of rent to the tenant/Respondent No,
4. From the perusal of the Annexure 7- 7 and P-8 there is note which is reproduced as under: "Attention is drawn to the terms of tenancy as per reverse. Tenant will on paying rent to landlords or their bill collector obtain proper receipt on the bill itself without which no payment will be recognized"
In the Terms and conditions as mentioned in the above receipts it is specifically mentioned that the Respondent No, 4 shall not sublet the premises or transfer possession thereof to any third party."
It is claimed by the petitioner that the petitioner firm was inducted in the premises in the year 1979 by Respondent No, 4 M/s. Tar Muhammad Haji Jamal. If this claim is admitted to be true, then the firm is non-suited by its own admission for the simple reason that at the relevant time i,e, in the year 1979, M/s. Tar Muhammad Haji Jamal themselves were not authorized to sublet the premises to some body else. Be that as it may, since no document or agreement was produced on record by the petitioners to show that they were ever authorized by M/s. Tar Muhammad Haji Jamal to occupy the premises, even in the year 1985, which fact was categorically denied by M/s. Tar Muhammad Haji Jamal therefore, the stance taken by the petitioner was rightly disbelieved by the Courts below. It would be worthwhile to mention here that the situation led the learned Judge in the High Court to, while deciding application under Order I, Rule 10 CPC, observe that though intervener i,e, the petitioner claims that it was a necessary party to the proceedings and without impleading it the Rent Case No, 1631/1992 could not have been decided yet, in the application it was no where stated that the intervener after having been inducted in 1979 as tenant, had paid rent to the original owner, nor any proof in respect of the issuance of rent receipts or expenses/payment of pagri in the sum of Rs,2,50,000/- was produced. The learned Judge was further, of the opinion that the rent receipts and the telephone bills etc. produced by the petitioners including the deposit of rent in the MRC, were of no help to the petitioner because it did not establish that the premises in question was ever let out to the petitioner by Respondent No, 4 i,e, M/s. Tar Muhammad Haji Jamal.
It would be pertinent to reproduce herein below the relevant extract from the judgment which reads as follows: "Receipts annexure P-7 page 111 indicates bill No, 5283 dated nill issued by Tar Muhammad Haji Jamal in the sum of Rs,300/- but there is no date though there is writing with pencil dated 1.10.1980 being bill No, 5313 dated nill amounting to Rs,200., and the application moved in May, 1981. These are Telephone bills at P-10 at page 117 and P-11 at page 119, P-12 at page 113 and P-13 at page 123 and there is receipt issue by Court of Civil Judge and Rent Controller Karachi south dated 10.8.1996 for deposit of rent from 1.7.1978 on 30.6.2000 amounting to Rs, 6720/-. There is another receipt P-15 at page 127 issued by Court of Senior Civil Judge and Rent Controller III Karachi (South) indicating name of Saleem Ali son of Nazar Ali dated 4.7.2000 amounting to Rs, 6720/- as advance for two years from July 2003 to 30.6.2005. Said rent was deposited by Saleem Ali son of Nazar Ali for Tar Muhammad Haji Jamal.
Admittedly the petitioner has not filed rent receipts since 1979 as claimed by him that he was inducted as tenant in the said shop at the rent of Rs, 175/- per men sum. Receipts at P-7 and P-8 do not prove that the said receipts are in respect of rental claimed by the Respondent No, 4 as one receipt date 1.10.1980 and the other is dated 31.1.1981 as pointed out by the learned counsel for the petitioner but from the perusal of the said receipt there is no indication that the said receipts were issued on such dates because there is no date on both the receipts. The petitioner has admitted in this petition that the started depositing rent in MRC 1428/95 before the learned Rent Controller Karachi (South) for the month of December 1995 and thereafter deposited advance rent up to June 2005 as per P-15 page 127."
In later part of the judgment, it was further observed as under: "The petitioner may claim himself as proprietary concern of M/s. Noorani Travels but he was never inducted as tenant by the original owner nor by the Respondent No, 4 (Tar Muhammad Haji Jamal) as the petitioner failed to bring any documentary proof regarding payment of Pagri of Rs,2,50,000/- by producing two receipts P-7 and P-8. The petitioner cannot claim themselves to be the lawful tenant. The electricity bills do not create any title to be the tenant of the premises in dispute. In telephone bills at P-10 and P-11 it is disclosed that the said bills were sent to Suleman Bawani as rental for July 1983 and 31.8.1991 and 3rd bill is dated 6.8.1988 as P-13. There is only one Telephone bill P-12 page 121 which reflects that it was issued on 5.10.1991 for billing period august 1991. As per assertion of petitioner in Para 7 of the petition that the petitioner started depositing rent since December 1995 in MRC. No, 1428/95 before the Rent Controller Karachi (South). It is golden rule as laid down by the superior Courts that stranger has no right to claim unauthorized possession as lawful owner or a tenant of the tenement."
Thus it is clear that the petitioner had miserably failed to establish that it was occupying the premises as authorized sub-tenant. The contention, therefore, is devoid of force.
6. Taking up the next contention of the learned counsel for the petitioner that the petitioner ought to have been joined as a necessary party in the Rent Case as well as in the execution proceedings because it was in possession of the rented premises as a lawful sub-tenant since 1979, it may be mentioned here that claim of the petitioner, to be impleaded as necessary party in the above proceedings, was contingent on establishing that he was an authorized and lawful sub-tenant but since the needful was not done therefore, petitioner's claim towards impleadment too, could not find favour as the Rent Restriction Ordinance does not provide a forum for litigation between a stranger and the landlord. We, therefore, find no merit in this contention as well.
7. As regard the next contention of the learned counsel for the petitioner that since the petitioner was not a party to the ejectment proceedings and Respondents No, 1 to 3 were trying to evict the petitioner from the premises under the garb and clog of ejectment order obtained against Respondent No, 4, a dead person, therefore it was ineffective against rights of the petitioner, it may be mentioned here that as discussed above, since the Rent Restriction Ordinance provides a forum for litigation between a landlord and the tenant only and not between an alien or stranger and landlord, therefore, the petitioner was not a necessary party to the proceedings and the Respondents No, 1 to 3 were not precluded to get execute the ejectment order against the Respondent No, 4, through his legal heirs, notwithstanding his death. The fact cannot be lost sight of that though Muhammad Amin who claimed himself to be son of Haji Jamal had, through an affidavit, disclosed that his father Haji Muhammad Jamal had expired on 27.7.1993 yet, there is no proof that the said partnership firm came to an end because a firm may, under Section 42 of the Partnership Act, dissolve on the happening of certain contingencies including death of a partner yet, it does not necessarily follow that its business came to an end as intention to continue business in partnership with legal heirs/representatives of the deceased partner may be gathered from conduct of the parties. Be that as it may, even if it is presumed that the firm owing to death of Haji Jamal was dissolved, the legal heirs of the deceased would still continue to be tenants in the premises because the partnership firm, unlike a company which is a "juristic person", is not a legal entity distinct and separate from its partners and therefore, tenancy in a partnership firm on death of a partner devolves upon his legal heirs as per their respective shares or interest in the partnership, therefore, dissolution of the firm or death of a partner for the purpose of tenancy or execution of any ejectment order is virtually insignificant. Thus the contention of the learned counsel, in this respect too, has no force.
8. Adverting to the next contention that the ejectment order cannot operate against the petitioner as it was passed regarding Tenements No, 1 & 4 while the petitioner is in possession of a distinct and separate property, it may be mentioned here that the stand taken by the petitioner before the Courts below as well as this Court is highly inconsistent, inasmuch as on one hand it is being pleaded that since the petitioners are occupying a different premises and the eviction application filed by Respondents No, 1 to 3 against Respondent No, 4 is in respect of tenements No, 1 & 4, therefore decree passed in favour of Respondents No, 1 to 3 cannot affect his rights and on the other it is solicited that since the Respondent No, 4 was authorized to sublet the premises in question by its original owner, therefore, the petitioner being "authorized sub-tenant" cannot be evicted in execution of the decree/order obtained against, Respondent No,
4. Additionally, it is also urged by the petitioner that the Courts below have failed to appreciate that in view of agreement dated 23.12.1987, the sub-tenancy, even, if any, stood regularized and cured. It is well settled, that an unauthorized sub-tenant can be evicted along with the tenant against whom the eviction order is passed by Rent Controller and he is not a necessary party to the proceedings, being unauthorizedly in occupation of the premises. Though in order to avoid complications in the execution, it has been, in some cases, suggested that sub-tenant may also be impleaded in the rent proceedings, yet, the fact remains that in order to become a party to the proceedings it is to be established by the intervener or the interceptor that he has a "legal right in the property which is enforceable by law", otherwise he cannot claim to be a necessary party in the proceedings.
Reference in this regard may usefully be made to Sh. Fazal Elahi & Co. v. Maula Bakhsh & others (1968 SCM R 735) and Minochar N. Kharas v. All Hassan Manghi & others (1986 CLC 1378) approved by this Court in the case_ of Taj' Muhammad u. All Hassan Mangi (1987 SCM R 565). It is not case of the petitioner that he was inducted in the premises as tenant by the original owner, his case is that the premises was let out to him on rent as sub-tenant by Respondent No, 4 who was authorized to do so by the original owner as per agreement dated 23.12.1987. As per Article 119 of the Qanun-e- Shahadat Order, burden of proof as to any particular fact lies on that person who wishes to believe the Court in its existence unless it is provided by law that proof of that fact lies on another person.
Learned Judge in the High Court has categorically observed that petitioner has failed to discharge the burden of proof that he was an authorized tenant inducted by Respondent No,
4. Learned Judge in the High Court has further observed that petitioner firm was unauthorisedly occupying the premises in question because there was no material available on record to believe that the premises was ever handed over to the petitioners Firm by the original owner or by Respondent No,
4. This contention therefore, too, has no force.
9. Upshot of the above discussion is that we find no legal or factual infirmity in the impugned judgments warranting interference by this Court in exercise of its constitutional jurisdiction, therefore all the three petitions, being misconceived, are hereby dismissed and leave is declined.