' This appeal under section 21 of the Sind Rented Premises Ordinance, 1979 has been filed against the order dated 10-2-1982 passed by the Second Senior Civil Judge'and Rent Controller, Karachi directing ejectment of the appellant from the residential premises on the ground of subletting of the same.
' The facts giving rise to the filing of the instant appeal briefly stated are as under :- ' The appellant is tenant of , the respondent in respect of residential tenement on the first floor of building No, 50-U, Block-2, P. E. C. H. S., Karachi, at the rent of Rs, 225 per month. The aforesaid premises were rented out to the appellant on 15-8-1969 for his residence. Rent Case No, 1562 of 1975 was filed by the respondent against the appellant in the Court of XXIVth Civil Judge/Controller, Karachi, on the ground of default in payment of rent which was fixed for hearing on 11-10-1977 but was withdrawn on 29-9-1977. On the same date, respondent filed application for ejectment under M. L.
0. No, 20 in Summary Military Court No, (E), Karachi on the ground that the appellant had sublet the premises to unauthorised persons. The Summary Military Court passed order of ejectment on the very same date against the appellant, who preferred Const. Petition No, D-720 of 1977 in this Court against the ejectment order dated 29-9-1977, which was admitted for hearing.
2. During the pendency of the said petition, the Military Courts (Validation of Orders) Ordinance, 1980, was promulgated and the appellant filed First Rent Appeal No, 2975 of 1980 under section 2 of the aforesaid Ordinance in the High Court. The aforesaid appeal was also admitted and interim order of stay was granted. Subsequently Const. Petition No, D-720 of 1977 was also ordered to be converted into appeal and was numbered F. R. A. 120 of 1981. When the aforesaid appeal came up for regular hearing, the case was remanded to the Second Senior Civil Judge and Rent Controller of the area concerned for decision after affording opportunity to the appeilant/tenant to file written statement and after recording the evidence of the parties. On remand the application dated 29-9- 1979 made under M. L. O. No, 20 was treated as the application and the appellant filed written statement. The learned Controller after recording the evidence of the parties, allowed the said application by his impugned order dated 10-2-1982 which has been challenged in the instant appeal.
3. Before the learned Controller as well as in the instant appeal, it has been contended that the application for ejectment is not maintainable in view of the provisions of M. L.
0. No, 20 as contained in section 2(c) thereof. Section 2 aforesaid provides that a dispute referred by the Martial Law Administrator under the Sind Urban Rent Restriction Ordinance, 1959 and Cantonment Rent Restriction Ordinance, 1965 between the tenant and landlord of a building situated in Karachi and Hyderabad be decided by Summary Military Court specially empowered in cases indicated in clauses (a) to (f). Clause (c) which is the relevant clause in this case reads as under :- "(c) Where a tenant has unauthorisedly occupied or sublet the building for any purpose other than residential."
' It is contended by Mr. K. B. Bhutto, the learned counsel for the appellant that the appellant had neither unauthorisedly occupied the premises nor sublet the building for any purpose other than residential. It is further contended that as a matter of fact the legal possession of the tenement has remained with the appellant and he has been paying the rent of the premises throughout. The only fact that the head office of the business concern is in Lahore does not mean that he has given up possession of the tenement. It is further contended that Amjad Rahim, the Shop Manager is also husband of the sister of the appellant and is at present living in the premises with the permission of the appellant who utilizes the flat whenever he comes to Karachi in connection with the business which continues as hithertofore in Karachi.
4. Mr. K. B. Bhutto, the learned counsel for the appellant has further argued that the evidence on record does not sufficiently prove subletting as the appellant has never parted with legal possession and Amjad Rahim and his family is only allowed to use premises while the appellant retains legal possession. He has relied upon the decision of Lahore High Court in Nasir Mahmood v.
Mustajabi Begum, in which it was held that "there cannot be a subletting, unless the lessee has parted with the legal possession. The mere fact that another is allowed to use the premises while the lessee retains the legal possession is not enough to create a sub-lease". It was further observed in the Lahore decision referred to that to create a lease or a sublease a. Right to exclusive possession and enjoyment of the property should be conferred on another, and that the mere fact of taking in other partners in his business by a lessee will not by itself constitute subletting and the lessee is not liable to eviction. In the Lahore decision reference was made to decision of this Court in Motal Bai v. Abdul Aziz and others, where the distinction between a "lease" and a "licence" was pointed out.
5. A perusal of the record would show as stated on oath by the appellant Amjad Rahim is maternal-cousin and husband of his sister and witness Naseer Ahmad Khan had also deposed that Amjad is brother-in-law of the appellant and his wife is sister of the appellant. This witness has further stated that Amjad is maternal-cousin of the appellant. It was the case of the appellant that Amjad Rahim alongwith his wife are partners in Cycle business being run at Karachi and also at Lahore and he, therefore, looks after the business both at Karachi and Lahore. The evidence of Syed Naseem Ahmed is also similar to that of Naseer Ahmed Khan. In Motal Bai v. Abdul Aziz and others, already referred to, the distinction between a "lease" and a "licence" and their meaning was1 2 discussed and reference in this respect was made to the decision of the Supreme Court in Abdullah Bhai and others v. Ahmad Din. It was observed as under :- "In the words of Kaikaus, J. In the Supreme Court decision just referred to, a licence is merely a competence to do something in or upon the property and the distinction between a "lease" and a "licence" is whether any right in immovable property itself, a right in rem, has passed to the grantee.
Transfer of a lease, as well as sub-lease, would therefore mean transfer of the right and interest of the lessee in immovable property, the difference between the two being that in the case of transfer of a lease, the whole interest of the tenant in the demised premises passes to the transferee, so as to create a privity of estate between the landlord and the transferee by making the latter liable to the landlord to pay rent, whereas a sub-lessee is only a transferee of a term less than the term held by the main lessee, and accordingly there is no privity of estate between the landlord and the sub-lessee."
' In the aforesaid decision reference was also made to the Privy Council decision in Clan Singh & Co. v. Devraj Nahar and others, where letting the firm in which the lessee was a partner, into possession of the demised premises, was held not to be breach of the covenant against assignment, or under-letting the premises without the landlord's written consent, even though the premises were held to be an asset to the firm.
6. It is, therefore, apparent from the legal decisions discussed above that the mere fact of letting other persons into possession by the tenant, and permitting them to use the premises for their own purpose, is not, a breach of the contract of lease as long as the tenant retains the legal possession.
7. In Attaur Rahman and others v. Adam Ali and others, a decision of this Court it was observed that subletting is a mixed question of law and fact. In that case tenancy right had been kept reserved for the benefit of the tenant in spite of partnership firm carrying on business in the disputed premises. It was held that this would not retain with possession as to the partner the consequence on the ground of subletting.
8. Reverting to the main ground that the application having been made under section 2(c) of M. L.
0. No, 20, the same should have shown that the appellant had unauthorisedly occupied or sublet building for any purpose other than residential, it has been argued in the instance case the purpose for the alleged subletting was residential and not other than residential.
9. Mr. Abdul Ghafoor Mangi, the learned counsel for the respondent has referred to Military Court (Validation of Orders) Ordinance, 1980. Section 2 thereof reads as under :- "2.-(1) Notwithstanding any order, judgment, or decision of any Court, an order passed by a Military Court at any time on or after the sixteenth day of August, 1971 in any proceedings under Martial Law Order No, 20 made by the Martial Law Administrator Zone 'C' shall be deemed to have been passed under the Sind Rented Premises Ordinance, 1979, as if the said Ordinance were in force at the time when such order was passed and shall have, and shall be deemed always to have had, effect accordingly.
(2) Any person aggrieved by any such order as is referred to in subsection (1) may, within thirty days of the commencement of this Ordinance, prefer an appeal to the High Court."
' He has further pointed out that the ground of subletting has been dealt with in section 15(2) (iii) which reads as under :- "the tenant has, without the written consent of the landlord-
(a) handed over the possession of the premises to some other person;
(b) used the premises for the purpose other than that for which it was let out;
(c) infringed the conditions on which the premises was let out;".
10. However, in Abdul Rehman v. Haji Mir Ahmad Khan and another, a decision of this Court while interpreting section 27 of the Sind Rented Premises Ordinance, 1979 it was held that the new law is prospective in so far as the right to file eviction application is concerned and that, therefore, the3 4 5 6 proceedings shall be continued under the old Ordinance, 1959 but it was further held that the procedure for disposal of such application will however, be provided in the new law. This decision was upheld by the decision of the Supreme Court (reported in PLD 1983 SC 21) and it was observed as under :- "No violence seems to have been done to the language of the statute and the intention to the contrary is not easily discoverable therefrom. On the contrary the language used in subsections (2) and (4) of the section 27, when read in juxtaposition to the language of subsection (3) thereof, it would seem that the interpretation is not violate of any clear intention of the Legislature, either."
It is, therefore, very clear that the application for ejectment which was made under section 2, clause (c) of M. L.
0. No, 20 which did not disclose as to for what purpose the demised premises were allegedly sublet and in which there was no assertion that the subletting of the building was for any purpose other than residential was incompetent and the fact that the Sind Rented Premises Ordinance, 1979 for the purpose of ground of subletting does not differentiate between use for residential purpose or otherwise will not make any difference.
' Under the circumstances stated above the impugned order of the Controller cannot be sustained.
The appeal is allowed and the order of the Controller ejecting the appellant from the premises is set aside. NLR 1979 Civil 853 PLD 1968 Kar. 635 PLD 1964 SC 106 (1965) 1 A E L R 768 1981 CLC 1747 PLD 1982 Kar. 532