' This first rent appeal is directed against the order of 15th Rent Controller, Karachi, rejecting the application of appellant/landlord for ejectment of respondents 1 to 10 on grounds of subletting, damages caused to property and unauthorised additions and alterations in the premises.
2. Several issues were framed by the Rent Controller in the case but as the hearing of this appeal Mr. Mansoorul Afrin, the learned counsel for the appellant pressed only Issue No, 2, which related to the subletting of premises by respondents 1 to 5 to respondent 9 without the consent of the applicant. Regarding allegations of subletting of premises to respondent 10 and the alleged damages caused to the property it is stated by the learned counsel that on these allegations a separate rent case was filed by the appellant against the respondents 1 to 5 from which II Appeal No, 81 of 1980 has arisen which is pending in this court. In so far the case against respondents 6 to 8 is concerned the learned counsel conceded that these respondents were put in possession of premises with the consent of appellant.
3. The admitted position in the case is that the premises in dispute was let out to the F'ardoon Jehangir Irani, the predecessor-in-interest of respondents 1 to 5 under a written agreement of lease dated 6-12-1966 (Exh. 2) by the appellant. Para. (IV) of this lease specifically prohibited any assignment or subletting of the tenancy rights by the tenant during the subsistence of lease except with the previous written consent of the landlord.
4. The appellant landlord in support of his case examined himself and produced several documents including certified copies of Court proceedings. On behalf of respondents 1 to 5, respondent 9 appeared as their attorney as well as for himself and filed his affidavit of evidence but he was not cross-examined by the appellant's counsel. However, on the affidavit of evidence filed by respondent 9 an endorsement was made by the counsel appearing for the appellant, before the Controller that the photostat copies of the documents filed with the affidavit were inadmissible in evidence. In his evidence the appellant landlord stated that the premises was let out to Fardoon Irani and after his 'death opponents 1 to 5 as his legal heirs became the tenants of the applicant. He further stated that in the month of November, 1966 late Fardoon Irani asked for permission to sublet a portion of the ground floor premises to respondents 6, 7 and 8 and that such permission was granted to him by the applicant. The appellant in his evidence produced certified copies of partnership deed between respondents 1 to 5 and 9, power of attorney executed by respondents 1 to 5 in favour of respondent 9, memo. Of 'Writ Petition No, 154/76 filed by respondent 9 against the Income-tax Department and a deed of dissolution of partnership executed between respondents 1 to 5 and 9 dissolving the partnership and asserted that from these documents it is established that the premises was sublet by respondents 1 to 5 to respondent 9. It is contended by the learned counsel for the appellant before me that in view of the provisions made in partnership deed read with dissolution deed and the contents of the writ petition filed by respondent 9 against the Income-tax Department it is conclusively proved on record that the premises in occupation of respondent 9 has been sublet to him by respondents 1 to 5. The learned counsel for the appellant further contends that the power of attorney executed by respondents 1 to 5 in favour of respondent 9 also indicates that the respondents 1 to 5 have vacated the premises and handed it over to respondent 9 for all practical purposes and that they have no more interest left in the demised premises. It is urged that even the collection of rents from other sub-tenants in the premises is left to respondent 9 which also shows that respondents 1 to 5 had no interest left in the premises. In reply to the above submissions of the appellant, the learned counsel for the respondents 1 to 5 and 9 contends that there is no legal evidence on record in support of the assertion of appellant that the premises has been sublet to respondent 9 by respondents 1 to 5. On the contrary it is contended that there is unchallenged testimony of respondent 9 that he is only a partner in the business with respondents 1 to 5 who are the tenants of the premises. In so far as the alleged admissions of respondent 9 in the memo. Of C. P. No, 154/76 and the dissolution deed dated 22-8- 1972 are concerned it is urged by the learned counsel for the respondents that the admissions were never put to respondent 9 who took a contrary stand in his evidence before the Rent Controller and therefore these alleged admissions could not be used against respondents legally. The learned counsel for respondents alternatively contended that in any case the appellant had created a new tenancy in favour of respondent 9 and therefore no order of ejectment could be passed against respondent 9 in these circumstances. The deed of partnership between respondents 1 to 5 and 9 is marked as Exh. 10 and is dated 13th March, 1972. Execution of this deed is not disputed in the evidence and according to its terms respondent 9 was taken as a partner of respondents 1 to 5 in the Firm. Further respondents 1 to 5 are entitled to 25% share in the profits and losses of the firm whereas 75% profits and losses of the firm belonged to respondent 9. All the finances required in connection with the partnership which are estimated approximately at Rs, 80,000 are to be provided by respondent 9 while respondents I to 5 are to make available to the partnership the space formerly occupied by them for the purposes of running Cafeteria. All rents receivable by the respondents 1 to 5 from the demised premises are to be applied towards the capital of partnership firm. The partnership account, it is provided, is to be operated upon by respondent 9 or any other person who may be authorised by respondent 9. The liability for payment of monthly rent of Rs, 3,000 to appellant is assumed by the partnership firm. However, paragraph 5 (b) of the partnership deed which reads as under provides that the rights and obligations of respondents 1 to 5 towards the landlord shall remain intact and the partnership shall not do or cause to be done any act, deed or thing which without the prior consent in writing of the landlord of the premises alters or impairs in any manner any of the said rights or obligations of respondents 1 to 5 : "5 (b), The other partners shall make available to the partnership business space formerly occupied by the said cafeteria and the rents receiveable by the other partners from the sub- tenants of the first floor of the premises provided that the rights and obligations of the other partners vis-a-vis the landlord of the premises shall remain intact and the partnership firm shall not do or cause to be done any act, deed or thing which without the prior consent in writing of the landlord of the premises alters or impairs in any manner any of the said rights or obligations."
' The alleged dissolution deed filed by respondent 9 in Writ Petition No, 154/76 provides that the partnership executed between respondents I to 5 and 9 on 13th March, 1972 has been dissolved and that respondent 9 has assumed all outstanding liabilities, obligations, debts in respect of partnership business so far carried out. This dissolution deed further provides that respondent 9 has taken over all assets, properties, effects, book-debts, benefits of outstanding contracts, stock- in-trade, goodwill, tenancy rights, quotas, licences which shall be treated as personal property of respondent 9 and as from the date of dissolution respondent 9 shall be deemed to be carrying on the business as the proprietor of the concern. In the memo. Of Writ Petition No, 154/76 filed by respondent 9 in this court against the Income-tax authorities it is stated that the business of Cafeteria run by respondents 1 to 5, stood dissolved prior to the commencement of the business of M/s. Radio Palace in the premises and that with effect from 14-3-1972 the business of M/s. Radio Palace was taken over as proprietary concern by respondent 9 and a deed of dissolution was later on executed on 22nd August, 1973. It is also stated in the writ petition that respondent 9 had approached the Income-tax Authorities to seek their help to get the tenancy of the premises transferred in his favour and that the Income-tax Authorities allegedly gave an assurance to him that the tenancy rights could be transferred in his favour if he agrees to take over the liabilities of tax relating to respondents 1 to 5 as partners of the firm. No doubt the admissions made by respondent 9 in the memo. Of W. P. No, 154/76 and the deed of dissolution of partnership do show that the premises has been sublet and the tenancy rights were transferred in respect thereof by respondents 1 to 5 in favour of respondent 9 but could these admissions be legally used against respondents 1 to 5 and 9, in view of the fact that their evidence on oath before the Controller had gone unchallenged and their attention was never drawn to these admissions in cross-examination.
Respondent 9 in his evidence before the Controller on oath categorically stated that respondents 1 to 5 are still his partners having interest both in the premises and the tenancy rights. This statement of respondent 9 runs contrary to the admissions made by him in the writ petition and the dissolution deed. Respondent 9 was not asked any question in cross-examination, nor his attention was drawn to the alleged admissions made in the W. P. No, 154/76 and the dissolution deed. In the absence of cross-examination the statement of respondent 9 in examination-in-chief shall be deemed to have been admitted by the appellant. Mr. Mansoorul Arfin the learned counsel for the appellant contends that the memo. Of writ petition and the dissolution deed were produced by the appellant before the Controller during his examination-in-chief but no question was asked in cross-examination and therefore, these documents shall be deemed to have been admitted by the respondents 1 to 5 and 9 and the fact that respondent 9 was not asked any question in cross- examination in relation to these documents or his attention was not drawn to the admissions contained in these documents is of no significance. In support of his contention the learned counsel placed reliance on the case of Bharat Singh and others v. Mst. Bhagi Rati (1) decided by the Supreme Court of India. The learned counsel specifically referred to paragraph 19 of the case appearing at page 410 of the report which is as under :- "19. Admissions have to be clear if they are to be used against the person making them. Admissions are substantive evidence by themselves, in view of sections 17 and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. We are of opinion that the admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness-box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting the witness under section 145 of the Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness. What weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence."
' No doubt the above-quoted observations of Supreme Court of India do support the contention of Mr. Arfin but Mr. Pirzada, the learned counsel for the respondents invited my attention to the case of Sikandar Hayat and 4 others v. Master Fazal Karim (2) decided by the Supreme Court of Pakistan wherein a contrary view is expressed. I can do no better than to reproduce here the conclusions of the Hon'ble Supreme Court of Pakistan in the above case appearing at page 735 of the report which is as follows :- "After going through these decisions I am of the view that the principle of law enunciated in the case of Firm Malik Des Raj Fakir Chand v. Firm Piara Lal Aya Ram and others lays down the correct law. In this case it was held as under :- ' Where a party has gone into the witness-box on the point in issue and
(I) AIR 1966 SC 405 (2) P D 1971 SC 730 in the witness-box has made a statement inconsistent with the admission or the statement made in the witness-box involves the denial of the previous admission, or runs counter to that admission, then the previous admission cannot be used as legal evidence in the case against that party unless the attention of the witness during cross-examination was drawn to that statement and he was confronted with the specific portions of that statement which were sought to be used as admissions. Without complying with the procedure laid down in section 145, the admission contained in the previous statement cannot be used as legal evidence against that party."
' It is not disputed by Mr. Arfin that the law laid down by the Supreme Court of Pakistan is binding on this Court but the learned counsel attempted to distinguish Sikandar Hayat's case by saying that admission in that case was vague and therefore the rule laid down by Supreme Court of Pakistan will be attracted only in those cases where the admissions relied upon are vague or ambiguous.
The learned counsel accordingly contended that as the admissions in the case before me are clear and unequivocal, the rule laid down by the Supreme Court of India in Bharat Singh's case should be applied. With due deference to the learned counsel I am unable to find the distinction suggested by him in the passage reproduced above from Sikandar Hayat's case. I accordingly hold that in view of legal position discussed above the alleged admissions made by respondent 9 in the memo. Of writ petition and the dissolution deed could not be used as legal evidence against him as respondent 9 in the witness box made a statement which runs contrary to the alleged admissions and he was neither cross-examined by the appellant on this statement nor his attention was invited to the admissions contained in those documents. Respondent 9 in his evidence before the Controller stated on oath that respondents 1 to 5 are still his partners and they have interest both in the business and in the tenancy right and that the premises has not been sublet to him by respondents 1 to 5. Reading this unchallenged testimony of respondent 9 on oath with clause 5 (b) of partnership deed dated 13-7-1972, I am of the view that the appellant has failed to establish subletting of the premises by respondents 1 to 5 in favour of respondent 9 and therefore, the Rent Controller was right in rejecting the ejectment application of the appellant. With regard to the alternate contention of Mr. Pirzada, that the appellant had created a new tenancy in favour of respondent 9 and therefore no order of ejectment could be made in the changed circumstances of the case. I may state that this fact is seriously disputed by the appellant. The documents alleged to have been executed by the appellant creating new tenancy in favour of respondent 9 were not produced in original before the Controller in evidence in spite of the fact that the appellant's counsel appearing before the Controller challenged the admissibility of photostat copies thereof. Although this document is alleged to be of a date subsequent to the date of cross-examination of appellant before the Controller but it is significant to note that the appellant was suggested in cross-examination that negotiations were going between him and respondent 9 which was strongly denied. In spite of this no attempt was made either to amend the written statement or to confront the appellant with the document by calling him in the evidence.
This point also appears to have not been pressed before the Controller as no finding in :this regard was given by him. In these circumstances, I am not inclined to examine this contention of learned counsel for respondents 1 to 5 and 9 for the first time in this appeal. However, in view of my finding that the appellant has failed to prove subletting I dismiss this appeal but leave the parties to bear their respective costs.