' This second rent appeal is directed against the order dated 21-7-1977 passed by the learned Additional District Judge, Karachi in Rent Appeal No, 132/76 reversing the order of the learned Rent Controller dated 4-271976 passed in Rent Case No, 3515/75. The relevant facts leading to the filing of the above appeal are that the present appellant filed the aforesaid rent case on three grounds namely: (1) default in payment of rent for the period from 1-6-1975 to 30-9-1975, (2) unauthorized subletting, and (3) conversion of the shop into a godown. The learned Rent Controller after recording the evidence and after hearing the parties allowed the above rent application on two grounds, namely, default and subletting. The respondent being aggrieved by the above order filed the aforesaid rent appeal, which was allowed by the learned Additional District Judge by his aforesaid order dated 21-7-1977. The appellant being aggrieved by the above order has filed the present appeal.
2.(a) In support of the above appeal, the learned counsel for the appellant Mr. Nisar Ally, has urged that the learned Additional District Judge was not justified in reversing the judgment of the learned Rent Controller, whereas Mr. Fazal Bhoy, learned counsel for the respondents, has urged that the order of the learned Additional District Judge is in consonance with law.
(b) Reverting to the question of default, it may be observed that Mr. Nisar Ally has referred to Exh.1- A a tenancy agreement dated 25-10-1962, in which according to him the rent was payable in advance by 5th of each month. However, from the two orders passed by the two Courts below, it seems that this point was neither canvassed before the two Courts below nor there is any such express plea in the rent application. In this view of the matter the learned Additional District Judge on the basis of the two cheques produced and the counterfoil of the money order received by the appellant on 11-10-1975 could conclude that there was no default.
3. (a) Adverting to the question of subletting, it may be pertinent to quote herein below the admission made by the respondent's witness Syed Muzafar Sajid, which reads as follows:- "Exhs.A/2 to A/8 do not bear my signature nor any one to our office. I am not sure that we have paid for Exhs.A/9 to A/12. The cheques were sent through a peon. I can produce the peon hook. I have not brought it. No notice was given to the applicant when the cheques were returned. It is incorrect that both the opponents are carrying out business in the same premises. The business is being carried in the name of opponent No,2. The opponent No, 1 was a partnership firm which was dissolved on 27-6-1974. The opponent No, 2 is a limited company and it was established on 27-6- 1974. No notice was given to the applicant, stating that the opponent No, 2 has been established, as a limited concern. The payment of rent is being paid through opponent No,1. Exh.A/1 was signed with the opponent No, 1 by the applicant and it is the same. Exhs:A/14 and A/15 are the photos of the premises in dispute. The opponent has not filed the suit against the applicant."
(b) From the above quoted admission, it is evident that the shop in question was used by respondent No, 2 i.e, the Limited Company and not by respondent No, 1 as partnership firm which stood dissolved on 27-6-1974. In this view of the matter the subletting stands proved and the cases of Nanik I. Mobed and another v. Shah Ibrahim and others PLD 1974 SC 351 and Messrs Premier Mercantile Service and another v. S.M. Younus and 2 others, on all fours applicable to the instant case. In both the above cases, it was held that a private limited company is a distinct entity from a dissolved partnership firm, and transfer of tenancy by a private partnership firm in favour of a private limited company would fall within the mischief of subletting.
(c) In this view of the matter the learned Additional District Judge was not justified in reversing the finding of the learned Rent Controller on the question of subletting I, therefore, allow the above appeal on the ground of subletting only and restore the order of the learned Rent Controller.
However, I grant four months time from today to the respondent No, 1 to hand over vacant possession of the shop in question on the condition that the respondent shall continue to deposit rent in terms of the Rent Controller's order. In case the respondent will commit default of any month, the appellant would be entitled to file an execution application before .the expiry of the above four months period. Further more, if on the expiry of four months time, the respondent fails to hand over the vacant possession, the Rent Controller shall issue writ of ejectment without any notice to the respondent.
' In the circumstances of the case there will be no order as to costs. Appeal allowed.
1989 MLD 559 [Karachi] Before Zaffar Hussain Mirza, J ABDUL KARIM--Petitioner versus ABDUL SHAKOOR--Respondent Revision Application No, 105 of 1979, heard on 2nd September, 1980.
(a) Civil Procedure Code (V of 1908)-- ---S. 115--West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S .17--Eject ment--Revisional jurisdiction--Dispute over ownership of property--Landlord shown in record of Excise and Taxation Department as owner of disputed property and petitioner as its tenant--Latilllord showing that dispute between parties was referred to Chairman of Union Council before whom parties compromised, whereby tenant agreed to pay a monthly rent to landlord--Oral evidence of witnesses produced by landlord relied by appellate Court in prefe,rence to oral evidence produced by tenant--Finding of appellate Court that landlord was owner of disputed property, held, not liable to interference in revisional jurisdiction in circumstances. [p. 561] A
(b) Evidence Act (I-of 11372)-- ---Ss. 22 & 116--Admission--Estoppel of tenant--Document consisting of a compromise deed reduced into writing before Chairman of a Union Council before whom parties compromised was not relied upon for purpose of enforcing it as an arbitration award but merely as an admission on part of tenant--Execution of such document proved on record--Document, held, admissible as an admission and in view of statement made in such document by tenant that he wit tenant of respondent (landlord)--Tenant, held, was estopped from challenging title of landlord of disputed property--West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.17. [p. 561] B & C Syed lnayat Ali for Applicant. Nisarally for Respondent.
Date of hearing: 2nd September, 1980.
' The dispute in this case relates to a small residential building admittedly constructed on a plot of land belonging to the Karachi Municipal Corporation (K.M.C.). It is common ground that in the beginning there was a small hutment constructed over the plot in dispute but some where in the year 1965 or 1966 permanent structure was raised after removing the hutment previously existing.
2. The case of the respondent is that he had acquired possession of a large Not of land from its previous occupant Messrs Govind Moti and Company who was lessee from the K.M.C. Subsequently the said Company migrated to India in 1955 and the respondent continued in possession of the plot. In the meantime in 1950 the respondent built 3 huts and 2 Paka houses on the plot and let them out to tenants. In one of the huts the applicant was put in occupation as a tenant, In 1966, with the agreement of the parties, as already stated, Paka construction was raised in place of the previous structure. On the other hand the applicant claims to have occupied the portion of plot covered by the present structure, on his migration to Pakistan after the partition of the Sub- Continent and set up a but thereon. According to him he has built the existing Poke structure in 1965, land has denied that he is the tenant of the respondent.
3. In the first place in May, 1966 respondent sought to eject the applicant through proceedings before Controller under the Rent Restriction Ordinance but his application was dismissed in view of the dispute raised between the parties regarding the ownership of the premises. The respondent then filed the suit out of which the present revision application has arisen before the civil Court in..196'7,claitping a declaration regarding his ownership of the property and-the status of the applicant as his tenant. Both parties produced oral evidence as well as documentary evidence in support of their respective contentions. But the Xth Civil Judge, Karachi dismissed the suit of the respondent on 14-4-1975. The respondent. then challenged the decision in appeal and by the Impugned judgment the learned Vth Additional District Judge, Karachi allowed the appeal and decreed the suit of the respondent on 27-1-1979. The applicant now seeks to challenge the aforesaid judgment in this revision application.
4. Before me it has been contended on behalf of the applicant that since the respondent was seeking the relief of declaration of ownership in respect of the disputed property, the burden of proof lay upon him but no evidence has been produced by the respondent to prove that he had raised the construction. I have carefully gone through the judgment of the Courts below with the assistance of the learned counsel and have also perused the depositions of the parties to this case. The learned Appellate Court below has based its judgment primarily on the documentary evidence produced by the respondent consisting of the receipts for the payment of taxes to the Excise and Taxation Department and;, the rent to the K.M.C. by the respondent. Additionally the respondent was shown in the record of the Excise and Taxation Depart ment as the owner of the disputed property and the applicant as its tenant. The next important document on which the appellate Court below placed reliance was Exh. 'P-2' in which the applicant admitted to be the tenant of the respondent. According to the evidence of the respondent the dispute between the parties was referred to the Chairman Jinnah Abad Union Committee No, 42 before whom parties compromised which was reduced into writing whereby the applicant agreed to pay Rs, 13 per month as rent to the respondent. The applicant in his evidence was confronted with this document in which he seems to have admitted his thumb-impression on it but his contention was that his thumb-impression was obtained by the Chairman by fraud and mis representation. The Chairman was examined on behalf of she respondent and he has supported his case that the dispute was voluntarily settled. The Court below rightly held that this admission is binding on the applicant as no evidence of fraud and misrepresentation was produced by the applicant on whom lay the onus of proof on this point. In addition to the aforesaid documentary evidence the appellate Court below also relied on the oral evidence of the witnesses produced by the respondent in preference to the oral evidence produced by the applicant. No documentary evidence was produced by the applicant.
5. In view of the aforesaid, the findings of the appellate Court below are not liable to be interfered with in the revisional jurisdiction.
6. The only other contention raised on behalf of the applicant is that Exh. 'P-2' the compromise document between the parties was in substance an award and as such was not admissible in evidence as a dispute between the landlord and tenant could not be referred to Arbitration. I find no substance in this contention. The document was not being relied for the purpose of enforcing it as an arbitration award but merely as an admission on the part of the applicant. Since the execution of the document has been proved on the record in my opinion it was admissible as an admission. In view of the statement made in the document the applicant is estopped under section 116 of the Evidence Act from challenging the title of the respondent as landlord of the, property. No other contention was raised in support of this revision.
7. In the result there is no merit in this revision which is accordingly dismissed with no order as to costs.