1. ' Appellants above-named, being aggrieved by judgment dated 29th July, 1978 of the learned IV Addl. District Judge, Karachi, in Rent Appeal No, 172 of 1975 filed by the respondent No, 1, by which the ejectment order dated 6th March, 1975 passed by XVIII Civil Judge and Rent. Controller, Karachi in Rent Case No, 110/1966 was set aside, has filed the above appeal on the following facts and grounds ;- ' That the building previously known as Tikamdas Wadhumal Building, now known as Aulia Building situated on Plot No, R. B. 8/5 near Kazim Raza Market, M. A. Jinnah Road, belonged to late Tikamdas Wadhumal Bar-at-Law, a very senior member of the Bar of this Honourable Court. By Exh. 2 (g) Late Tikamdas Wadhumal agreed to sell the aforesaid building for a sum of Rs, 15,000 on 15th October, 1962 and acknowledged the receipt of whole consideration by cheque and agreed to complete the transaction within three months or earlier as the case may be. The sale-deed was completed and registered in favour of the appellants on 28th of. February, 1963.
2. ' On 20th of March, 1963, the appellants filed application for ejectment against the respondents under section 10 of the Karachi Rent Restriction Act, 1953, as amended by Ordinance XLVIII of 1962 on the following grounds :-
(a) That the respondent No, 1 had on or about 28th February, 1963 removed windows and widened the main door and had thus caused considerable damage to the property of the appellant. That the respondent No, 1 had made innumerable changes and alterations without the permission of the appellants.
(b) That the respondent No, 1 had also without the consent of the appellants sublet a portion to respondents Nos. 2 to 7.
(c) That the respondent No, 1 had without the consent of the appellants converted the residential premises into commercial unit.
3. ' On 18th May, 1963 the respondent No, 1 filed written statement wherein he admitted, that he was a tenant of the house, but alleged that since the house is in commercial locality it is not a house, but a commercial premises. It was further admitted, that he had installed cabins, but it was done with the consent of previous landlord. But the permission of landlord was not produced with the written statement. He denied subletting and conversion and stated that he was carrying on business in partnership with respondents 2 to 5 and 7 and that respondent No, 6 was his servant. On 25th October, 1966 following issues were framed :-
(1) Has the opponent No, 1 removed and the windows and the main door of the house and thereby caused considerable damage to the property ?
(2) Has opponent No, 1 sublet a portion of the premises in question without consent of the appellants?
(3) Is opponent No, 1 liable to be ejected.
(4) What should the order be.
4. ' The parties were also directed to file their documents. The respondent No, 1 did not file any document in terms of this Order.
5. ' The appellants examined appellant No, 2 Muhammad Siddique, Clerk in office of Architect Department, Karachi Municipal Corporation, Exh. 18 and Riaz Ahmad Qureshi Architect Exh.
20. The respondent No, 1 examined his father Saeeduddin Exh. 21 and Feroz Khan driver of late Tikamdas Exh.
6. 22.
7. ' The learned Rent Controller after thoroughly examining the evidence and documents produced by parties had held all the three issues in favour of the appellants and allowed their application for ejectment, by the order dated 6th March, 1975.
8. ' The respondent No, 1 filed Rent Appeal No, 172 of 1975, which was heard by the IV Additional District Judge, Karachi, who has rejected the findings of the Rent Controller on all the aforesaid issues and has set aside the order of ejectment with no orders as to costs on 29th January, 1978.
9. ' The learned 1st Appellate Court for the reasons given in the impugned judgment dated 29th July, 1978 allowed the First Appeal No, 172/75 and consequently the appellants have filed the above appeal, on the grounds mentioned in the memo, of appeal.
10. ' The learned Advocate for the appellants in support of the above appeal submitted as under :-
(a) That the learned first appellate Court has erred in reversing finding of fact given by learned Rent Controller in respect of Exh. 21 and Exh. 21-A merely on the basis of its own conclusion by comparing the disputed handwritings of ex-landlord, with undisputed writing of his under section 73 of Evidence Act, in the absence of any evidence to support such finding on record.
(b) That respondent No, 1 admittedly was minor, when he is alleged to have entered into partnership with remaining respondents and as such alleged partnership agreements ought to have been completely ignored from consideration and once this was done, ground of subletting by respondent No, 1 automatically stood proved. But this important legal point has been overlooked by the learned First Appellate Court, in spite of clear provisions of section 30 of the Partnership Act.
(c) That ex-landlord entered into sale agreement with present appellant on 15th October, 1962 and as such it is unbelieveable, that person like Mr. Tikamdas Wadhumal Senior Advocate, could have executed Exh. 21 as well as agreement dated 5th November, 1962 Exh. 21-A, after entering into sale agreement with appellants.
(d) That names of respondents 2 to 7 as occupants of the cabins did not exist in Excise and Taxation records, which is clear from Exh. 16, which shows, that all 10 cabins were lying vacant till then and as such it is clear from this document, that respondent No, 1 subletted these cabins, after registered sale-deed dated 28th February, 1963 in favour of appellant, without the permission of the appellants, who had become by then the owners landlords of the property in question.
(e) That premises in occupation of respondent No, 5 Muhammad Afzal vide alleged partnership dated 8th March, 1983 was admittedly done after execution of registered sale deed on 28th February, 1963, in favour of appellants, without written or oral permission of the appellants and on this ground alone, the case of subletting stands proved against the respondent No, 1.
(f) That it is clear from notice Exh. 11 dated 13th March, 1983, that unauthorised cabins were put up after 28th February, 1963 and alleged subletting thereof obviously took place thereafter, without the consent of appellants and consequently respondent No, 1 in order to save himself from consequences of his action, fabricated Exh. 21 and Exh. 21-A and so-called alleged partnership deeds, which is evident from Exh.
11. 11.
(g) That at the time, when ejectment application in question was filed at Karachi, Rent Restriction Act, 1953 was in force and according to definition of landlord as, given in the said Act, permission for putting up cabins and subletting after 28th February, 1963 could only be given by present appellants only and even if for arguments sake it is presumed that Exh. 21 and Exh. 21-A were in fact executed by ex-landlord, the said permission lapsed on 28th February, 1963 and consequently cabins and subletting done by respondent No, 1 after this date were in violation of the provisions of the rent laws in force at that time and, therefore, appellants had legal right, to file ejecctment application in question on both the grounds.
(h) That the learned first appellate Court has misread the evidence on record and drawn conclusion therefrom unwarranted by such evidence and on this ground alone the impugned judgment of first appellate Court is liable to be set aside and order dated 6th March, 1975 of the learned Rent Controller is liable to be restored.
(i) That the documents on which the learned first appellate Court relied for comparison were not legally exhibited and as such could not be taken into consideration even for purposes of section 73 of Evidence Act. In support of this, the learned Advocate for the appellant relied upon case reported in PLD 1973 SC 160 (191).
12. ' The learned Advocate appearing for respondents on the other hand submitted as under :-
(a) That cabins and respondents Nos. 2 and 7 were present on site prior to 28th February, 1963 on the basis of Exh. 21 and Exh. 21-A and as such question of subletting and change to property does not arise.
(b) That admitted signatures of ex-landlord on Exh. 21 (g) were available on record and as such the learned first appellate Court had legal right to compare disputed and admitted signatures under section 73 of the Evidence Act and having done so, its conclusion cannot be disturbed in this II Appeal. In support of this the learned Advocate for respondent relied upon cases reported in PLD 1968 Dacca 167, PLD 1968 Kar. 875 and PLD 1958 Dacca 57.
(c) That partnership agreement between respondent No, 1 and other respondents are no doubt void but said agreements prove subletting at least prior to 28th February, 1963 on the basis of Exh.
13. 21 and Exh. 21-A and as such no cause of action at all had accrued to appellants for filing ejectment application in question.
(d) That prior to execution of Exh. 21 and Exh. 21-A rent payable by respondent No, 1 was only Rs, 32 which was increased to Rs, 100, on the basis of permissions granted vide Exh. 21 and Exh. 21-A.
(e) That alleged sale agreement dated 15th October, 1962 not produced by appellants nor registered sale deed dated 28th February, 1963 and as such both of these documents not proved.
14. Even notice Exh. 11 dated 13th March, 1963 does not mention of constructions of 8 cabins and consequently reply Exh. 12 very material.
(f) That reliance placed on statements of K. M. C. Witness and Architect not at all warranted as first notice issued by K. M. C. Dated 2nd February, 1964 and inspection was done by Architect in June, 1966.
(g) That in case of conflict of judgments of 2 lower Courts, weight ought to be given to judgment of appellate Court. In support of this the learned counsel for respondent relied upon cases reported in PLD 1968 SC 617, 1978 SCMR 404, 1981 SCMR 1233 and PLD 1968 Dacca 167.
(h) In the alternative since appellants accepted rents on 1st March, 1963, respondents No, 1 was accepted as tenant on same terms and conditions as Exh. 21 and Exh. 21-A.
15. ' In support of above contentions, the learned Advocate for the respondent also relied upon cases reported in AIR 1928 P C 277, PLD 1962 SC 102 and PLD 1968 Kar.
16. 635.
17. ' I have carefully considered the above submissions made by the learned Advocates before me and have gone through R & P of the learned Rent Controller and both the judgments of lower Courts and cases cited by both the learned Advocates before me.
18. ' It is admitted position, that respondent No, 1 was minor, when he is alleged to have entered into partnership agreements with respondents Nos. 2 to 7 and as such said partnership agreements are void, under section 30 of the Partnership Act. In view of this legal position, and keeping in view the contents of illegal partnership agreements, I have no hesitation in confirming the conclusion of the learned Rent Controller, that respondent No, 1 ha subletted the cabins in question to respondents Nos. 2 to 7.
19. Appellants had filed ejectment application on mainly two grounds i,e, for subletting and damage to property in question by unauthorised additions and alterations. Respondent No, 1 denied these allegations and stated that on the basis of Exh. 21 and Exh. 21-A, with the permission of the ex- landlord of the property in question, he subletted the cabins in questions and carried out additions and alterations to the premises, but denied, that by such additions and alterations any damage has been caused to the property in question. He further asserted, that all this was done prior to 28th February, 1963 before the property was purchased by the appellants and since appellants accepted rents from him on 1st March, 1963, they accepted him as tenant on the same terms and conditions, as mentioned in in Exh. 21 and Exh. 21-A and consequently appellants' application was liable to be dismissed. In view of this the main questions which required consideration for disposal of appellants ejectment application in question were, (1) whether Exh. 21 and Exh. 21-A were in fact executed by ex-landlord Mr. Tikamdas Wadhumal? (2) Whether subletting and additions and alterations in questions were done prior to 28th February, 1963, before the purchase of the property in question by appellants ? (3) Whether any damage was caused to the property in question, by said additions and alterations made by respondent No, 1.
20. ' Appellants in support of their contentions examined P.Ws. Shamsuddin, Muhammad Siddique and Riaz Ahmed whereas respondents examined D.Ws. Saeeduddin and Feroze Khan. Both the learned lower courts discarded the statement of D. W. 2 Feroze Khan for cogent reasons. It may be noted that appellants in their first notice dated 13th March, 1963 did not mention about putting up of cabins by respondent No, 1 and as such their existence on the site prior to 28th February, 1963 cannot be doubted. In view of this statement of P.W. Muhammad Siddique is not at all material to the dispute between the parties.
21. ' I have carefully gone through the statement of P.W. Riaz Ahmed, who in his statement before the learned Rent Controller stated, that he inspected the property on 2nd May, 1966 and found certain additions and alterations made in the property, which in his opinion have adversely affected the structure of the said property. He further stated, that the said additions and alterations were unauthorised. I find that statement of this witness remained unshaken in his cross-examination and furthermore respondent did not examine any witness to rebut the statement of this P.W. It may further be noted; that even in Exh. 21 and Exh. 21-A, it is clearly mentioned, that additions and alterations shall be carried out in such a manner, that it does not endanger or damage the building. However appellants by the statement of P.W. Riaz Ahmed have established, that additions and alterations carried out by. Respondent No, 1, has caused cracks in the walls and damaged the property in question. I find that first appellate Court has not at all taken consideration damage caused to the property, but only on the basis of Exh. 21 and Exh. 21-A held, that the additions and alterations were done with permission of previous landlord and prior to 28th February, 1963 and consequently disagreed with the finding of the learned Rent Controller on Issue No, 1, by completely ignoring the statement of P.W. Riaz Ahmed on question of damage caused to the property, by said additions and alterations and unauthorised nuture of the said additions etc. And as such I see no reason to agree with the conclusions of first appellate Court on Issue No, 1.
22. ' The only statement on record regarding alleged genuineness of Exh. 21 and Exh. 21-A is that of D.W.
23. Saeeduddin, the father of respondent No, 1 and comparison of handwriting and signatures of Mr. Tikamdas Wadhumal on these Exhibits, by the learned appellate Court under S. 73 of the Evidence Act, with Exh. 21 (g), the admitted signature of Mr. Tikamdas. This approach of the learned appellate Court shows, that statement of D. W. Saeeduddin by itself was not considered sufficient to hold, that Exh, 21 and Exh. 21-A were genuine documents and bore the signatures of Mr. Tikamdas I have also examined alleged signatures of Mr. Tikamdas Wadhumal on Exh. 21 and Exh. 21-A with his admitted signatures on Exh. 21 (g). I am afraid, I see no reason to agree with this conclusion of the learned appellate Court, that signatures of Mr. Tikamdas on Exh, 21 and 21-A tally with his admitted signatures on Exh. 21 (g). I find no similarity at all in these disputed signatures and admitted signatures. For instance letters T & W in Exh. 21 and Exh. 21-A are different from T & W in Ex. 21 (g).
24. Even the flow of writings in these three signatures differs in my opinion. In addition to this, respondent No, 1 did not file copies of Exh. 21 and Exh. 21-A with his written statement nor he produced original documents and filed them in the Court of learned Rent Controller, in terms of order dated 25th October, 1966, but only produced them, at the time of recording of statement of his father. This fact also throws doubt on the genuineness and existence of these documents at the time of filing of written statement by respondent No,
1. Even for arguments sake, if genuineness of Exh. 21 and Exh. 21-A is presumed, then too additions and alterations done by respondent No, 1 caused damage to the property in question, as established by the statement of P. W. Ri Ahmed and respondent No, 5 was inducted in cabin in question by partner ship deed dated 8th March, 1983 Exh.
25. 21 (g) w. e. f. 1st March, 1983 that is after 28th February, 1963 when appellants had become the owners of the property in question by registered sale deed, to the knowledge of respondent No, 1, as he alleges to have paid rent of the premises to appellant on 1st March, 1983. In view of this respondent No, 1 subletted cabin in question to respondent No, 5, without the permission and consent of the appellants and thus became liable to eject on this ground as well.
26. ' In view of my above conclusions and findings cases cited by the learned Advocate for respondents on various contentions raised by him are not at all applicable to the above undisputed facts in respect of subletting to respondent No, 5 and damage caused to property as stated by P. W. Riaz Ahmed, even if Exh. 21 and Exh. 22-A are presumed to be genuine. For similar reasons cases cited by the learned Advocate for appellants also need no consideration.
27. Therefore, I allow the above appeal and set aside impugned judgment dated 29th July, 1977 of the learned IV A. D. J. Karachi in Rent Appeal No,. 172 of 1975 and dismiss the said appeal and confirm the order dated 5th March, 1975 of the learned XVIII Civil Judge and Rent Controller, Karachi, in view of my conclusions and findings regarding damage caused to the property and subletting of cabin to respondent No, 5, after 28th February, 1963 only. In view of the facts and circumstances of the above appeal. I. Pass no orders as to costs.