1. ' The facts giving rise to this appeal are that the present appellant had filed a rent case against the respondent under provisions of section 15 (2) (ii)(iii) (iv) and (vi) on the ground of default, subletting, nuisance, causing damages to the property, opponent having made addition and alteration in the premises and personal bona fide requirement. The case of the appellant is that she is owner/landlady of the building named "Ali Manzil "Altaf Hussain Road, Karachi while the respondent is the tenant of the said building in respect of entire ground floor on monthly rent of Rs,230 and that he is in default in payment of rent w,e,f. February 1979 for few months and then made consolidated payment in Court wherein also he committed default after 15-9-1979. It is further alleged that he had sublet a portion of the premises and has used the premises for the purposes other than that for which it was let out and also made a number of additions and alterations in the premises unauthorisedly which have impaired the material value and utility of the same and have cause nuisance to the neighbourhood. It also alleged that he has illegally and unauthorisedly disconnected the water supply and lastly it is claimed that the premises is required for the personal use of the appellant's son and daughter. Her daughter is a law graduate who desires to establish an office on the ground floor and to practise as an advocate. Such notices were served on the opponent but to no avail and, therefore, the said rent case was filed for his ejectment. The respondent filed his written-statement wherein he denied the relationship of landlord and tenant and also the allegations brought against him. The learned Rent Controller framed the following issues:-
(1) Whether there exists any relationship of landlord and tenant between the parties?
(2) Whether the opponent has committed default from February, 1979?
(3) Whether the opponent has sublet the premises without permission of the applicant?
(4) Whether the opponent is nuisance in causing damage to the property?
(5) Whether the opponent has made additions and alterations in the premises?
(6) Whether the applicant requires the premises for personal bona fide use ' What should the order be?"
2. ' The applicant examined herself through attorney the son Syed Raza who produced certain documents. The appellant also filed affidavit-in-evidence of her nephews syed Asif Raza and Syed Atif Raza while the respondent Moiz Hussain filed his own affidavit-in-evidence. He produced partnership deeds and other.
3. "13. It is clearly understood that parties of the 2nd and 3rd part both have documents. All the above-said witnesses were cross-examined. Learned Rent Controller holding that there was no relationship of landlord and tenant dismissed the above application for ejectment filed by the present appellant. No finding was, however, given by the Rent Controller on the other issues. Being aggrieved the appellant has filed this appeal.
4. ' I have heard M/s. Ibrahim Moosa Lakhani and Mr. Hasan Akbar for Mr. Syed Mamnoon Hasan, Advocates for the parties. The record, pleadings of the parties and their affidavits-in-evidence show that the premises in dispute were purchased by the appellant/landlady in the year 1972. At that time the present respondent was in occupation of the ground floor wherein he was running the business New Dimond Printing Press. A notice was sent by the appellant to the New Dimond Printing Press intimating the respondent about the purchase of the said premises by her. The rent at that time was Rs,180 per month. The appellant has produced a copy of the counterfoil of the rent receipt as Exh.A/7. The receipt shows to have been issued to Mr. Moiz Hussain for New Dimond Printing Press Karachi. A legal notice which was sent to the respondent is dated 4-5-1976 and brought on record as Exh.A/8. This notice is addressed to M/s. New Dimond Printing Press and also shows the name of Mr. Moiz Hussain as proprietor/partner. Mr. Ibrahim Moosa Lakhani, learned counsel for the appellant has argued that the above documents show that it was Mr. Moiz Hussain who was responsible for payment of rent for the premises in dispute and that relationship of landlord and tenant exists between the parties. He has further submitted that the findings of the learned Rent Controller that there was no relationship of landlord and tenant between the present parties but it was the New Dimond Printing Press who was the tenant is erroneous. The learned counsel has referred to cross-examination of the respondent. It would be pertinent to reproduce the portions of his cross-examination wherein he has admitted himself to be tenant and responsible for payment of rent. That in his evidence of course he has pleaded that it was the New Dimond Printing Press which was in occupation of the premises in dispute and thus the tenant of the same but in cross-examination he has stated "from the very beginning I am tenant". He then answering to a question in cross-examination has stated "the partners in the partnership firm are only working partners and they have no right in the tenancy". At another stage he stated "it is correct that I had deposited rent in the Court". The respondent has also produced the partnership deeds as Exhs. 0/2, 0/4 and 0/18. All these three partnership deeds show that the partners will be only working or managing partners in "partnership business" but the said documents do not mention if they will also be partners with regard to tenancy. On the contrary the partnership deed Exh.O/4 shows that the present respondent will be the sole proprietor of the running business and will be responsible to provide capital for the business and condition No,9 of this partnership deed shows that the goodwill of the business shall belong entirely to him. The last partnership deed Exh.
5. 0/18 in condition No,13 produced as under:- ' joined this partnership business as "working partners, the tenancy right of the business premises bearing Ali Manzil, Altaf Hussain Road, New Challi wherein the partnership business at present is carried on is and shall always remain the property of the party of the 1st part viz. Mr. Moiz s/o Hussain Zanzbarwalla, similarly the goodwill, trade name, and all the assets and equipment acquired and,will be acquired in future shall always be the property of the party of the first part viz. Mr. Moiz s/o Hussain Zanzbarwalla. Mere use of the premises and property/assets of the firm shall not vest or create any right or title in tenancy of the aforesaid property/permises and other assets and goodwill in any other partners and it is further expressly and explicitly agreed by and between all the partners hereto that the tenancy rights of business premises and the ownership of all assets and goodwill shall always remain with the party of the first part Mr. Moiz son of Hussain Zanzbarwalla and none of the other partner of partners shall have any right, title, claim, interest or lien over the same and in the event of dissolution of the firm the possession of business premises and all other assets and goodwill of the business shall be peacefully handed over by the other partners to the said party of the first part."
6. ' The respondent has also admitted in cross-examination that he had been paying the rent to the landlady. In view of the above admission and documents the learned counsel for the appellant has submitted that for all purposes it is the present respondent who is the tenant in the premises in dispute. He has referred to the definition of tenant as given in the Section 2 (j) of the Sindh Rented Premises Ordinance, 1979 and has submitted that the person who is liable to pay rent is the tenant: "2(j) "tenant" means any person who undertakes or is bound to pay rent as consideration for the possession or occupation of any premises by him or by any other person on his behalf and includes--
(i) any person who continues to be in possession or occupation of the premises after the termination of his tenancy;
(ii) heirs of the tenant in possession or occupation of the premises after the death of the tenant; and".
7. He has placed reliance on the case of Motal Bai v. Abdul Aziz (PLD 1968 Karachi 635) wherein Noor- ul-Arfin, J (as he then was) observed:- "3. According to section 4 of the Partnership Act, IX of 1932 "partnership" is relationship between persons who have agreed to share the profits of a business carried on by all or any of them acting for all, and the persons who have entered into this relationship are collectively called "a firm". This definition is taken from the repealed section 239 of the Contract Act.
8. 1872."
9. In the above-cited case it was also a rent matter, it has been further held that:- "The terms of the deed, particularly clause 5, are very clear on this point, and are expressly indicative of the condition that the firm was not let into the shop as transferee of the lease or as sub-lessee but only as licensee. Under clause 5, the tenancy of the shop is saved in the respondent No,1's favour and dissolution of the partnership, the respondents Nos.4 and 5 are required to vacate the shop without making any claim thereto. The arrangement contained in the partnership deed can reasonably be held to be consistent with the grant of a licence only to the firm to use the shop for its business.
13. In view of the above discussion, the questions which I formulated above, have to be answered in favour of the respondent No,1, and this leads to the conclusion that the respondent No,1, has neither transferred his rights under the lease, nor sublet the shop, to the firm in which he is a partner with the respondents Nos.4 and 5."
10. Reliance may also be placed on the case of Allandin and others v. Jamshed Aderji Dubash (PLD 1961 (W.P.) Karachi 38) wherein a Division Bench of this Court had held: "11. Counsel for the respondent thirdly argued that the omission to implead Ala Din as a party to the proceedings before the Rent Controller and the Chief Judge, Small Causes Court did not violate any technical provision of law, because there is nothing in section 9 of the Sindh Rent Restriction Act to compel the landlord to implead all tenants as respondents in the proceedings taken under the Act. His contention is based on an observation made by Muhammad Bakhsh, J. In Suit No,706 of 1952. He is right in making this argument, but the absence of a statutory provision in the Sindh Rent Restriction Act, 1947 does not make the ordinary principles of law inapplicable to those proceeding.
11. Natural principles of justice required that all those who were interested should have been impleaded. What counsel apparently meant was that natural principles of justice are not to be treated as technicalities. They are to be enforced for doing justice and not like technical provisions of statutes. It appears to us to be an adequate reply to the objection of counsel for the appellants that Ala Din's interest was for all intents and purposes represented in those proceedings. Our conclusion therefore, is that the certificate granted by the Chief Judge, Small Cause Court, on the grounds that three appellants had violated the terms of tenancy and that the respondent needed the premises for constructing a new building on it is, in the circumstances of this case, binding on all the appellants including Ala Din, although he was not by name made a party to those proceedings, because he had created an impression that he had lost interest in the demised premises, and had allowed the other three tenants to act as if he was no longer a tenant, or for him also."
12. ' Mr. Hasan Akbar, learned counsel for the respondent has submitted that the rent proceeding against one of the partners in the above circumstances is not maintainable as it is the firm M/s. New Dimond Printing Press who are the partners and not Moiz Hussain. He has placed reliance on the case Shankar Vinayak Niqade v. Ramrao Sahebrao Niqade (AIR 1935 Bom. 427). In my opinion the facts of this case do not apply to the present case. He has also placed reliance on the case of C. Duraswa mi Iyanger v. United Life Insurance Company Ltd. (AIR 1956 Mad. 316). This case also is of no avail to the respondent as the matter in the suit in the said case too is different to the present one. In view of the above discussion, it is obvious that the present respondent by his conduct has admitted that he was the tenant of the premises in dispute and that the tenancy rights were retained by him whereas the firm was only for running the business in which the other partners had the interest in the business only but had nothing to do with the tenancy rights. The lease of premises would become, if used for the business for the firm, property of the firm if premises are brought into the firm in such a way to make the firm either assignee of the lease or sub-lessee of premises. It may be observed that there should be some overt act done by the tenant to create an interest in immovable property, a right, in all partners so to create in them unity of title, unity of interest, unity of possession as well as every part of the deal, promise so that all partners become co-tenants. Further, accepting the other partners in business alone should not be rightly construed as their having become partners or acquiring interest in the tenancy rights also, particularly in case of premises subject to rent restriction laws if facts in the evidence can be held to be consistent with some other relationship or arrangement. In view of the above I am inclined to hold that the disputed premises in the present case were not brought into as a part of partnership property and no interest in the premises passed over to partners so as to make them co-tenants. It is, therefore, held that the relationship of landlord and tenant does exist between the parties. The appeal is accordingly accepted. The order of the learned Controller is set aside and the case is remanded to his Court with the directions to decide the other issues on merits. There will be no order as to costs.