' SALEEM AKHTAR, J.---The petitioners seek leave to appeal against the judgment of the learned Judge in Chambers whereby the first rent appeal filed by them was dismissed and the order of ejectment passed by the learned Controller was confirmed.
2. Mst. Bilquis Begum, the predecessor-in-interest of the respondents filed application for ejectment on 11-7-1982 on grounds of default in payment of rent and subletting in respect of Shops Nos.l, 2 and 3 in building known as Barri Market situated at Robson Road, Karachi. It was alleged that from the month of June 1981 the petitioners have defaulted in payment of rent. It was also alleged that at the time the premises was rented out, petitioner No,1 was inducted as tenant is he had described himself to be the sole proprietor of M/s. Shaheen Burqa House, petitioner No,2. It was further stated that petitioner No,1 converted the sole proprietary firm into a partnership firm and thus the premises was sublet without written consent of the landlady. The petitioners denied that they have committed default in payment of rent. It was alleged that the rent for the month of June 1981 was paid to Mst. Bilquis Begum who did not issue any receipt for it. The rent for July and August 1981 was offered in time, but she declined to accept it on the plea that the rent receipts were not available and no sooner they are printed, rent would be recovered. Thereafter a money order was sent on 17-9-1981. Subletting was also denied and it was alleged that M/s. Shaheen Burqa House is a partnership firm and from its very inception it has been a tenant. The learned Controller granted ejectment on both the grounds, which was confirmed by the impugned judgment in appeal.
3. Mr. Rehan Farooqui, learned counsel for the petitioner contended that petitioner No,2 from the inception of tenancy i,e. 1-4-1969 was a partnership firm and therefore the question of subletting does not arise. On the other hand Mr. Obaidur Rehman contended that the tenancy was created in favour of the petitioners in February 1969 and receipt dated 5-3-1969 was issued in respect of rent for the month of February. Therefore, the question which boils down is as to when the tenancy started. There are conflicting statements of the parties. But in view of the rent receipt produced by the respondents it seems that the tenancy started from February 1969 in the name of M/s. Shaheen Burqa House. The question then arises that since according to the petitioners M/s. Shaheen Burqa House is a partnership firm, will such change in the nature of the firm amount to subletting or parting with the possession of the premises. It is well-settled principle that a sole proprietary firm has no legal existence. It is the sole proprietor who is the real person for performance of duties and obligations. If a sole proprietary firm is converted into a partnership firm, then its nature and juristic personality is completely changed and the partnership firm stands completely different from the proprietary firm which existed earlier. The petitioners have not filed the partnership deed, but have relied upon the certificate of registration of firm and the order of the Income Tax Authorities. The most significant aspect of this certificate is that it was filed and entry was made on 3-10-1970 stating that all the three partners joined on 1-4-1969. The petitioners have not explained that why immediately on formation of the partnership the same was not registered with the Registrar of Firms. In the order under section 26-A of the Income Tax Act in respect of assessment year 1971-72 the Assistant Income Tax Officer ha noted that partnership deed was drawn on 18-9-1969 and the application for its registration in respect of assessment year 1970-71 was filed on 10-9-1970.
Therefore, even if it is accepted that the partnership commenced from 1-4-1969 it was after the creation of tenancy. Furthermore petitioner No,1 filed his additional affidavit and in cross- examination dated 25-4-1992 he stated as follows:-- "It is correct to say that I never obtained written permission from landlady to induct the firm as sub- tenant. 7 says that she orally permitted me to induct the said firm as sub-tenant. It is correct to say that now first time I disclosing that applicant had orally permitted me to induct the firm as sub- tenant in the shop as I never cross-examined on this point previously."
' This statement completely falsifies petitioners' statement that the partnership firm was the tenant from the inception of the tenancy.
4. The learned counsel for the petitioners contended that under section 15 (2) (iii) (a) of the Sindh Rented Premises Ordinance, 1979, a tenant is liable to be ejected if he hands over the possession of the premises to some other person without the written consent of the landlord. The learned counsel contended that it is handing over the possession and not mere subletting which is the key requirement for ejectment. Handing over possession is of a wider implication than mere subletting.
In case a partnership firm is a tenant, then all the partners can claim the tenancy rights in proportion of their share. Each partner is deemed to be in possession of the demised property.
Once a proprietary firm is changed into a partnership firm, then all the partners have right, title and interest in the tenancy, goodwill, business and assets according to their share unless otherwise provided in the partnership deed. The petitioners have not filed partnership deed from which it could be ascertained that although the firm is a partnership firm, yet the right of tenancy was preserved in the name of petitioner No,1 and other partners did not have any right in the tenancy. In these circumstances, petitioner No,1 has created interest of other two partners in the disputed premises who shall be deemed to C be in its possession as partners. The learned counsel for the petitioners pointed out that the firm has been dissolved in the year 1985, but it makes no difference as the ejectment case had been filed in the year 1982 and the violation as contemplated by section 15 (2) (iii) (a) of the Sindh Rented I D Premises Ordinance had been committed. The concurrent finding of both the Courts on this issue cannot be disturbed.
5. So far the default in payment of rent is concerned. Mr. Farooqui stated that there is a default of seven days in payment of rent for the month of June. This seven days' default has been calculated by him after adjusting the grace period of 60 days and also 10 days. No valid reason or ground has been pleaded or proved to explain this delay. Even the learned Controller has refused to exercise his discretion in favour of the petitioners which has been upheld by the learned Judge in Chambers. We find no force in this petition, which is dismissed.
' The petitioners are allowed six months' time to hand over peaceful vacant possession of the disputed premises to the respondents failing which writ of ejectment shall be issued by the learned Controller without notice to them.