' This appeal is directed against the order of the learned Additional District Judge, Faisalabad dated 10-5-1975 by which the order of the Rent Controller dated 20-5-1975 dismissing the application of the appellant was set aside.
2. Briefly stated the facts of the case necessary for the disposal of the appeal are that the respondent is a firm and had filed an application for the eviction of the appellant from Shop No, 10, Nazi Cloth Market, Chiniot Bazar, Faisalabad on the ground of personal need of one of the sons namely Abdul Sattar of a partner of the firm Muhammad Nazir. This application was resisted by the appellant. The Rent Controller vide his order dated 20-9- 1974 dismissed the petition for eviction. The learned Rent Controller had dismissed the application construing the statement of Ahsanul Haq A. W. 1 to the effect that the aforesaid Abdui Sattar owned jointly another shop with his brother. Similarly, the statement of Muhammad Nazir appearing as A. W. 4 was meant to show that Abdul Sattar used to run a shop in Nazir Market. The learned Additional District Judge accepted the appeal on 10-5-1975 on the ground that the evidence on record has been Misconstrued' by the Rent Controller and that it was proved from the evidence on record that Muhammad Nazir one of the partners of the firm needed the shop in question bona fide for the need of his son.
3. The learned counsel for the appellant has raised a question of law of some importance in the present appeal.
The learned counsel for the appellant has argued that from a bare perusal of petition for eviction it is abundantly clear that the shop in question belonged to Messrs Muhammad Rashid Muhammad Nazir & Co. And the firm itself being the petitioner therefore the shop in question could only be got vacated for the personal use of the firm and not for any of its partners or their sons. The learned counsel has relied to the provisions of section 15 of the Partnership Act to show that the assets of the firm are only be held and used by the partners exclusively for the purposes of the business. For the sake of convenience section 15 is reproduced below:- "Subject to contract between the partners the property of the firm shall be held and used by the partners exclusively for the purposes of the business."
' The precise contention of the learned counsel for the appellant is that the firm exists independent of its partners and therefore for the purposes of section 13 of the Urban Rent Restriction Ordinance, 1959, the firm shall be treated as a separate entity apart from its constituents and therefore the personal need as exists under section 13 of the Urban Rent Restriction Ordinance shall only be confined is the firm. The learned counsel for the appellant has relied on Akhtar Ali v. Umatul Islam (1), for the proposition that the firm possesses personality different from persons constituting it. The facts of the above-cited case were that the landlady in that case filed an application under section 13 of the Rent Restriction Ordinance, 1959 for the eviction of her tenant on the ground that he sublet the shop without her consent to another person and was shown as his tenant. The defence of the principal tenant was that after obtaining the lease he started a partnership business along with the alleged sub-tenant and this did not legally amount to the subletting of the shop and also did not affect the lease rights of the principal tenant. In this connection it was held by their Lordships of the Supreme Court that though a firm may be constituted by the principal tenant de jure and legal possession is always of the principal tenant. The contention of the tenant was repelled and the appeal was dismissed. The relevant observations of their Lordships are quoted below:- "It may be pointed out that whereas under Pakistan law a firm is a person or entity different from its partners but this is not so under the English law, and while examining the relevancy of English cases on the subject that distinction shall have to be kept in view. Reference here may be made to Bhagwanji Morarji Gocaldas v. Alembic Chemical Works Co. Ltd. And others P L 1) 1948 P C 73 where it was held that "before the Board it was argued that under the Indian Partnership Act, 1932, a firm is recognized as an entity apart from the persons constituting it, and that the entity continues so long as the firm exists and continues carry on its business. It is true that the Indian Partnership Act, goes further than the English Partnership Act, 1890, in recognising that a firm may possess a personality distinct from the persons constituting it; the law in India in that respect being more in accordance with the law of Scotland, than with that of England. But the fact that a firm possesses a distinct personality does not involve that the personality continues unchanged so long as the business of the firm continues. The Indian Act, like the English Act, avoids making a firm a corporate body enjoining the right of perpetual succession."
' The learned counsel for the appellant also cited the case of Messrs Fankson & Co. v. Muhammad Hussain (2).
In this judgment Mr. Justice Zakiuddin Pal was pleased to hold that a Director cannot get the premises vacated for the use and occupation of a company of which he is a Director as a limited {{FOOT NOTE}}
(1) PLD 1979 SC 815 (2) PLD 1973 Note 141 at p. 213 {{FOOT NOTE}} ' company has separate existence apart from its shareholders and in this connection it was observed as follows:- "According to law a company is a separate juristic person, distinct and different from its shareholders. It is not mere allies for its shareholders nor merely an agent for them. Any individual share-holder cannot indemnify the company against debts which it incurred except to the extent of his share in the capital. His liability is limited to that extent and he can only be called upon to contribute in the event of a winding up of the Company to the extent of his own share."
' The learned counsel also relied on the case of Miss I. All Muhammad v. Muhammad Shafi (1). In this case their Lordships of the Supreme Court while interpreting the words "for his own use" appearing in section 13(3)(a)(ii) were pleased to hold that the requirement of the shop by the landlord after creation of trust could not be said to be the requirement of trustee as landlord and the application for eviction on that score was ordered to be dismissed.
4. The point therefore which needs consideration in the present case is whether the firm exists separately from its partners and whether the words "for his own use" can be extended for the use of its partners. The learned counsel for the respondent rebutting the contention of the appellant had relied on a case of Dr. Feshoten v.
Ferozeshah and others (2), for the proposition that in law each partner has and is entitled to have full possession of enjoyment of whole of the premises vesting in a firm. The learned counsel for the respondent has also referred the case of Motal Bai v. Abdul Aziz and others (3). In this judgment the term partnership and the firm had been defined and it was observed that the firm was only a collected name of its members and not legal members and separate entity of its partners. This case had been examined in details in judgment of Akhtar Ali v.
Umatul Islam already quoted above. Their Lordships of the Supreme Court did not accept the statement of law relating to the status of a firm and then followed the enunciation of law which has been quoted above. Any reference to the case of Motal Bai will not help the respondent in view of the observations of their Lordships of the Supreme Court in the case of Akhtar Ali v. Urnatul Islam referred to above. Another judgment of the learned Supreme Court may also be cited i. e. Mr. B. A. Sheikh v. The Custodian, Evacuee Property, West Pakistan and another (4), wherein it has been held that partner's share in the partnership property are not separate and shares becomes separate only after the division of the assets according to the provisions of the Partnership Act after dissolution. The relevant observations of their Lordships of the Supreme Court are quoted below: "Section 15 declares that subject to contract between the partners the property of the firm shall be held and used by the partners exclusively for the purposes of the business. This precludes the possibility of any of the partnership property being, or being deemed to be, separate property of any partner for so long as the partnership subsists. Again, a mere dissolution without division of assets as provided by the Act does not have the effect of ascertainment of the separate property of any partner. Dissolution may, as provided by section 43 of the Act take effect by the delivery of notice of an intention to dissolve, but while this may furnish a starting point for the ascertainment of the {{FOOT NOTE}}
(1) PLD 1971 SC 494 (2) PLD 1962 Kar. 293
(3) PLD 1968 Kar. 635 (4) PLD 1960 SC 336 {{FOOT NOTE}} ' interests of the partners which had become legally separate as from the date of the notice, yet the condition does not come into existence, by the mere effectuation of such a legal and notional dissolution, in which any partner can point to any piece of the partnership property belonging to himself alone. That can only happen after action has been taken as provided by sections 46, 48 and 49 of the Act. These sections require that the debts and liabilities of the partnership should be first met out of the property of the firm and thereafter the assets should be applied in rateable payment to each partner of what is due to him firstly, on account of advances as distinguished from capital, and secondly, on account of capital, and thirdly, the residue, if any, should be divided rateably among all the partners. Therefore, the conception of the share of a partner in the accounts of the partnership does not take a real and concrete shape until these processes have been gone through."
' In the case of Yaqoob v. Additional Ejectment Commissioner, Karachi (1), it was held as under:- "While it is true that a partner cannot claim any asset of a partnership as exclusively his own until a distribution of the assets thereof has taken place, yet in law every partner is, in the absence of any special agreement to the contrary, equally interested. In the whole of the partnership assets, and if the property happened to be real property then the legal estate in it would be governed by the ordinary doctrine of real' property. Vide Lindley on Partnership, 11th Edn. p.
426. It is futile, therefore, to argue that even if the leasehold interest became an asset of the firm, the appellant acquired no interest therein. A leasehold interest is, subject to any -contract to the contrary, both transferable and heritable under the Transfer of Property Act."
' Learned counsel for the appellant has also cited the case Surgan and Company v. Landhu Rain Bal Kishan Das (2).
5. After discussing the above case-law on the point in issue it is therefore abundantly clear that in view of the observations of their Lordships of the Supreme Court referred to above a firm has a separate existence from its partners though it does not acquire a corporate status. Once it is settled that a firm existence is different from that of its partners then the natural consequence would be that for the purposes of section 13(3) (a) (ii) the words "for his own occupation" cannot therefore be relegated to any of its partners or their sons. The premises owned by a firm could only be got vacated for the use by the firm as proprietary rights vested in the firm and therefore the question stands settled by the decision of their Lordships in the case of Miss I. Muhammad v.
Muhammad Shafi and of this Court in Messrs Fankson & Co. v. Muhammad Hussain. The upshot of the entire discussion above is that the petition for eviction having been filed not for its own use and occupation but for the use and occupation of a son of its partner was therefore not legally competent.
6. I have therefore no other alternative but to accept the appeal, however, in the circumstances of the case, there will be no order as to costs. {{FOOT NOTE}}
(1) 1973 SCMR 116 (2) AIR 1941 Nag. 105 {{FOOT NOTE}}