NASIM HASAN SHAH, J.---The case of the petitioner is that on 30-12-1972, the premises in question were rented out to one Shabbir Hussain Chaudhry (respondent No,1 herein) on a monthly rental of Rs,130. The said respondent committed default in payment of rent and, therefore, in 1974 the petitioner filed a rent case in the Court of the Rent Controller, Karachi for his ejectment. In pursuance thereof, the Rent Controller passed an order on 29-11-1975 directing respondent No,1 to deposit the rent amounting to Rs,32,506 due upto October, 1975. No deposit, however, was made as directed and on the application submitted by the petitioner for striking off his defence, the learned Rent Controller struck off the defence and directed respondent No,1 to hand over the vacant possession of the disputed property to the petitioner within 15 days of his order, passed on 12-3- 1976. The problems have arisen in connection with the execution of the order. It appears that the first respondent and respondents Nos.2 to 5 executed a partnership deed for doing business in the premises on 2-2-1975; the relevant portion of which is reproduced below:-- "WHEREAS the partners abovenamed had agreed to start a partnership business in fact started the same from 2nd February, 1975 "
"3. That the partnership business shall be carried on at 19/IA, Block 6, P.E.C.H.S. Karachi or at any other place in Pakistan.
6. The First Partner has contributed his share in the form of goodwill of the business of "Chung Guddo" and of the premises thereof; the Second Partner has contributed furniture and fixtures including Air-Conditioners, Cutlery, Refrigerators, Freezers etc..."
7. That that business of the firm shall be carried on solely by the Second Partner as the First Partner shall be away from Karachi, most of time."
Accordingly, when the petitioner commenced execution proceedings on the failure of respondent No,1 to hand over vacant possession within the stipulated period of 15 days respondents Nos.2 to 5 filed a civil suit in the Court of the XIVth Civil Judge, Karachi for a declaration that they were the tenants of the premises in dispute and that respondent No,1 (petitioner herein) be restrained from interfering with their possession. Shortly thereafter they filed another suit in July, 1978 in the Court of the Civil Judge-XIV Karachi for a declaration that they were the tenants in the premises in dispute and that the order passed by the Rent Controller dated 12-3-1976 had been obtained by fraud. Both the suits, however, were dismissed. The first suit was dismissed on 27-1-1981 on the ground that the respondents could agitate their grievance in the execution proceedings; while the second suit was dismissed on 20-10-1982 with the observation that the mere statement of the plaintiffs (respondents Nos.2 to 5 herein) to the effect that they were in fact tenants of the suit property was not sufficient to establish their claim. Furthermore, they were contesting the execution application filed by the petitioner herein. So far as the execution proceedings are concerned, these were dismissed by the Rent Controller by his order dated 16-8-1984 on the ground that on the basis of the partnership deed or payment of rent by them the respondents Nos.2 to 5 had not become the tenants in their own right and could, therefore, be ejected on the basis of the order dated 12-3-1976 passed against respondent No,1.
Aggrieved by the last-mentioned order, the respondents Nos.2 to 5 filed an appeal against it in the High Court of Sindh at Karachi (R.F.A. No,783 of 1984). This appeal has been allowed by a learned Single Judge of the Sindh High Court vide judgment dated 5-3-1989. Hence this petition for leave to appeal.
After hearing learned counsel for the petitioner, Ch. Khalil-ur-Rehman, we feel that in view of the conflicting judgmetns passed in this case by the various Courts dealing with the matter, this case requires further consideration. Leave to appeal is, accordingly, granted.
Security shall be furnished in the sum of Rs,10,000.
The appeal shall be made ready on the present record with liberty to the parties to file additional documents if any and put up for hearing at a very early date.