1. ' This appeal filed under section 21 of the Sindh Rented Premises Ordinance, 1979 is directed against the judgment passed by the IInd Senior Civil Judge and Rent Controller, Karachi (South) on 28th May, 1988 in Rent Case No,1824 of 1985.
2. ' The respondents herein are the owners of Antria Building situated on Plot No,W.O. 7/34, Wadhumal, Udharam Road, Karachi. Out of the shops situated on the ground floor Shop No,8 was let out to one Ghulam Hussain, Advocate somewhere in 1949. On his death, the present three respondents succeeded him.
3. ' On 15-9-1985 the respondents herein filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979, in the Court of Senior Civil Judge and Rent Controller, Karachi, seeking ejectment of the appellants from the shop mentioned above on the ground that they had committed default in payment of rent and had also sublet the premises to some other persons and handed over possession to them.
4. ' The appellants resisted the application for ejectment and generally denied the averments made in the ejectment application. Both the parties led evidence and ultimately the Rent Controller by his judgment mentioned above ordered ejectment of the appellants from the said rented premises only on the ground that they had sublet the premises in question. It is against this judgment that the present appeal has been filed.
5. ' Mr. Abdullah Khatri, Advocate for the appellants has raised the following contentions in support of this appeal:---
(1) That the respondents in their application filed before the Rent Controller in its paragraph 7 merely stated, 'it is further submitted that the opponents sublet the premises to some other persons, as they have handed over the possession of this shop to other persons without the written consent of the applicants, as such they are liable to be ejected from the shop on the ground of subletting of the shop'. According to him no details about the sub-tenant or the sub-tenancy were mentioned in the application and eviction on such vague ground cannot be ordered. In support of his such contention he referred to the cases reported in PLD 1991 SC 265; 1989 MLD 2047; 1986 CLC 1774; 1986 CLC 1485 and 1987 MLD 515.
(2) That for the first time through the affidavit of one Asghar Ali, one of the respondents in this appeal, filed in evidence in support of the ejectment application, it was alleged that Munir Ahmed, the Attorney of the appellants, was in possession and doing business in the said premises. The said Attorney according to him was carrying on the business on behalf of the appellants and was receiving a share in the profits on the basis of an oral understanding. No right or interest relating to the tenancy of the shop was ever created in his favour by the appellants. In absence of any allegation even in the statement of Asghar Ali to the effect that .the Attorney was managing the business in the shop in question on his own and was paying rent to the appellants, it could not be said that the appellants had transferred the possession of the premises in question and created sub-tenancy in his favour. Reliance was placed by him on the case reported in 1982 CLC 1249.
6. ' Mr. Badrudduja, advocate appearing for the respondents contended that no evidence had been led by the appellants to show that they had not parted with the possession of the shop in question.
7. On the contrary case set up on their behalf it is clearly stated that their duly constituted Attorney is carrying on the business in the premises in question. Under the circumstances he pointed out that no case is made out for interference in the order of the Rent Controller ordering ejectment of the appellants. He referred to the cases reported in 1981 CLC 669, PLD 1988 Pesh. 145 and 1991 CLC 339.
8. ' The Rent Controller in this case on the basis of evidence produced by the parties reached the conclusion that the appellants have sublet the premises to their Attorney and ordered their ejectment on that ground. It may be pointed out here that before the Sindh Rented Premises Ordinance, 1979 was enacted, section 13(2)(ii)(a) of the West Pakistan Urban Rent Restriction Ordinance, 1959 provided that a tenant can be ejected from a rented premises if he has without written consent of the landlord "transferred his right under the lease or sublet the entire building or rented land or any portion thereof'. This provision was made to prohibit "subletting" of the premises by the tenants without consent of the landlords and if the tenant committed breach and sublet the rented premises the tenant would render himself liable for ejectment. The entire concept of subletting of a rented premises due to changes effected in law relating to ejectment of tenants in the Province of Sindh through the Sindh Rented Premises Ordinance, 1979, has been changed and instead an altogether different concept has been introduced through the later enactment. Section 15(2)(iii)(a) of the Sindh Rented Premises Ordinance, 1979 provides that in case a tenant without the written consent of the landlord hands over the possession of the premises to some other person, the Rent Controller can direct the tenant to put the landlord in possession of the premises on that ground. It will thus be seen that by the identical provisions made in the subsequent enactment the concept of subletting was done away with and mere handing over of possession of a premises to some other person without the consent of landlord by the tenant is made a sufficient ground for ejectment of the tenant. The concept introduced by the subsequent legislative measure, the Sindh Rented Premises Ordinance, 1979 in the section under reference has been extended to include the simple case of transferring the possession of the rented premises for ejecting a tenant.
9. ' The Attorney of the appellants was examined in the case who claimed to be in possession of the premises in question not in his own right but as the Attorney of the appellants and doing business on their behalf reserving a share of profit on that account on the basis of some oral understanding.
10. The Rent Controller has relied on certain extracts from his evidence and concluded that the premises were sublet by the appellants to the Attorney. The evidence of the Attorney is required to be read as a whole as the evidence of a witness is not divisible. The Attorney has stated that he was holding the possession of the premises in question on behalf of the appellants although he admitted to be a partner in business as indicated above.
11. ' I find that the Rent Controller in this case had examined the facts of the case from the point of view of the previous law on the subject. The Rent Controller ought to have examined the evidence and decided the case in the light of the provision contained in section 15(2)(iii)(a) of the Sindh Rented Premises Ordinance, 1979 and determined if he was holding possession of the rented premises to the exclusion of the appellants or was merely having possession as their Attorney and decided the case. In view of it the judgment impugned in this appeal is set aside and the appeal is allowed and the case is remanded to the Rent Controller to decide it afresh within the scope of section 15(2)(iii)(a) of the Sindh Rented Premises Ordinance, 1979. Since this is an old matter the Rent Controller shall decide it after hearing the parties within a period of 3 months after summer vacation.