' AJMAL MIAN, J---This is an appeal with the leave of this Court against the judgment dated 13- 14993 of a learned Single Judge of the High Court of Sindh passed in F.R.A. No, 241 of 1988, filed by the appellant against the order dated 3-2-1988 of the learned III rd Senior Civil Judge/Rent Controller, Karachi, in Rent. Case No, 873 of 1986, dismissing the appellant's above rent case which was filed on the ground that the respondent had parted with the possession of the suit tenement, dismissing the same and maintaining the above order of the Rent Controller. Leave to appeal was granted to consider the questions, whether in view of the admission of the respondent in his cross- examination on 19-9-1987 that he can produce the books of account which were closed on 30-6- 1987, his refusal to produce the same on the plea that the same were not maintained, was sufficient to draw an adverse inference against him in support of the appellant's case; and whether the two Courts below were justified to decline the appellant's application.
2. The brief facts are that the ejectment was sought on the ground that the respondent had in or about the first week of October, 1986, handed over the possession of the suit tenement to some other person without the written consent of the appellant. The above application was resisted by the respondent inasmuch as it was pleaded that the respondent was doing business in the suit premises and for the due and smooth running of the same, he had taken a partner in the business.
The learned Rent Controller, on the basis of pleadings of the parties, framed the following two issues:- "Issue No,1.---Whether opponent have handed over the possession of the premises to some other person?
Issue No,2".---What should the order be?"
' After recording evidence and hearing the parties, the learned Rent Controller dismissed the above rent case inter alia for the following reasons through the above order:- "In view of the above discussion and in the light of the evidence come on record and in light of above law I am of irresistible view that opponent have not handed over the possession of the premises to some other persons as alleged accordingly issue answered in the negative."
' Against the above order, the appellant filed the above F.RA., which was dismissed through the judgment under appeal. Thereupon, she filed a petition for leave to appeal, which was granted to consider the above questions.
3. In support of the above appeal, Mr. Fakhruddin G. Ebrahim, learned Sr. ASC appearing for the appellant, has vehemently contended that as the appellant had proved the factum that the respondent had inducted one All Muhammad son of Qasim Ali in the suit tenement, the burden of proof was shifted on the respondent to explain, in what capacity said All Muhammad was put into possession of the suit tenement, which burden the respondent failed to discharge. Reliance was placed by him on the following cases:-
(i) Province of Sindh through the Deputy Commissioner, Thatta and 3 others v. Muhammad Sabir Khan (1987 CLC 668).
(ii) Mrs. Talat Farooq v. Naheed Jalil, Joint Mutawalli (1989 CLC 1348);
(iii) Syed Niaz Ahmad Zaidi v. Mst. Bismillah Begum (1990 CLC 1061);
(iv) Qadri Brothers Foundary and Workshop and 4 others v. Masood Hussain Antria (1991 CLC 1042); and
(v) Akhtar All and another v. Mst. Umatul Islam PLD 1979 SC 815.
' In the above cases inter alia it has been held that once landlord proves that somebody else is using rented premises either exclusively or jointly with the tenant, the burden of proof shifts on the tenant to explain relationship between him and the user of the tenement.
4. On the other hand, Mr. Zia Qureshi, learned ASC for the respondent, has vehemently contended that the respondent had discharged the above burden of proof by producing the partnership deed dated 1-7-1986 and the Certificate of Registration of the Firm issued by the Registrar of Firms for Karachi, indicating that the respondent and said All Muhammad joined partnership with effect from 1-7-1986. He has further submitted that Clauses 9, 10, 11 and 13 (a) of the partnership deed clearly demonstrate that the respondent had not parted with the possession of the suit tenement.
The above Clauses read as follows:- ' That the tenancy rights in respect of the firm's shop premises situated on Plot No,Z-63, Bihar Muslim Society, shall always continue to subsist in the name of the first party and all other intangible assets of the firm including trade name and goodwill of the firm, shall also belong to and be owned by the party of the first part exclusively and the party of the second part shall have no claim or lien thereof.
10. That all business activities of the firm shall be incorporated in proper books of account shall be maintained under the direct supervision of the Working Partner party of the second part and shall be open to the inspection of both the parties at all reasonable times.
11. That the books of accounts for the first year shall be closed on 30-6-1987 and thereafter by the end of June year after years when profit or loss shall be ascertained and divided between the parties in their profit and loss sharing ratio.
13. That at the time of dissolution of the firm, the business shall be wound up in the following manner:
(a) .
(b) .
(c)
(d) All intangible assets of the firm, being tenancy rights, trade-name and goodwill and licences etc., shall belong to and be owned by the party of the first part alone and the party of the second party shall have no claim or charge or lien thereon."
5. We have gone through the evidence produced by the parties. It seems that under above-quoted clause 11 of the partnership, the books of account were to be maintained. It further seems that the respondent in his cross-examination at page 40 of the paper book stated that "I can produce the books of account which are closed on 30-6-1987. (At this stage case is adjourned for the production of documents/accounts)." However, on the next dated of hearing which was fixed for production of the books of account, the respondent stated that "I have not brought books of account as we do not maintain. The same though I had deposed on last date of hearing to produce the books. Voluntarily says. I have brought the statement of trading A/C."
' Whereas All Muhammad in his cross-examination (at page 45 of the paper book) has stated that "As per partnership deed the books of account have been closed on 30th June, 1987 which are available, and are written by Advocate. I had handed over the books of account in September, 1987, to the Advocate. It is correct that prior to September, 1987, the books were in my possession as well as in possession of opponent."
6. The question which needs examination is, as to whether the respondent by producing the above partnership deed and the Registration Certificate had discharged the burden of proof to show that factually he had not parted with the possession of the suit tenement in favour of All Muhammad or was he required to produce some further evidence to corroborate the above documents. At this stage it may be pertinent to reproduce sub-clause (a) of clause (iii) of subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979, hereinafter referred to as the Ordinance, which reads as follows:- "(iii) the tenant has, without the written consent of the landlord:--(a) handed over the possession of the premises to some other person;"
It may be noticed that the above-quoted clause prohibits handing over possession by a tenant to some other person without written permission of the landlord. It does not speak of creation of sub- tenancy or factum of subletting. In our view, the above clause is wider in its import inasmuch as it will be attracted to if a landlord proves that factually his tenant has handed over possession to another person without his written consent and that the tenant is no longer in possession. The above initial burden is on the landlord and once he discharges it, the burden will shift to the tenant to prove that he has not handed over possession of the premises and that he is still in physical possession. In order to discharge the above burden of proof, the tenant may produce partnership deed, certificate of registration of the firm, account books, income tax assessment orders etc. Since in the present case the account books were maintained as per terms of the partnership deed, it was incumbent on the respondent to have produced the same to show that the above partnership was not bogus and was not entered into in order to circumvent above provision of the Ordinance. It was also incumbent on him to show that factually he had not handed over physical possession of the premises to All Muhammad. If a tenant under the terms of the partnership does not sit in the premises of which he is the tenant, but permits his partner to have exclusive physical possession, the above provision of the Ordinance will be attracted to. A tenant cannot be permitted to do indirectly what he cannot do directly, because of the prohibition under the above provision of the Ordinance. But if a tenant takes a working partner or a financial partner bona fidely and retains the physical possession of the premises inasmuch as he sits in it for carrying on business, the above provision will not be attracted to.
' In our view, simpliciter production of a partnership deed and a B certificate of registration of firm will not be sufficient to rebut the factum that the tenant has parted with the possession of the premises in case it is proved by the landlord that someone else other than the tenant is in physical possession and using the tenement. We may refer to an unreported judgment dated 22-12-1991 of this Court in the case of Hafiz Abdul Hameed v. Nek Mohammad, in which the question before this Court was, whether under section 15 (2) (vii) of the Ordinance the landlord could seek ejectment of the tenant of shop for the use of the firm in which the landlord was a partner holding 1/3 share. It was held that the expression "for his own occupation or I use or for the occupation or use of his spouse or any of his children" would not c cover partners of the landlord. The above judgment is not directly applicable to the case in hand as the words employed in sub-clause (a) of clause (iii) of subsection (2) of section 15 of the Ordinance are different. But, at the same time the underlined idea seems to be same i,e. Since a landlord cannot seek ejectment of a tenant on the ground of his personal requirement for the use of his partners, similarly a tenant cannot allow someone else to use the tenement exclusively.
7. Mr. Zia Qureshi, learned counsel for the respondent, has invited our attention to the additional documents which the respondent has filed in this appeal recently to show that the respondent and said. Ali Muhammad have been assessed by the Income Tax Department as partners and, therefore, the above partnership was genuine and was not entered into merely in order to circumvent the provision of sub-clause (a) of clause (iii) of subsection (2) of section 15 of the Ordinance.
8. In our view, it would have been appropriate for the respondent to have produced the above documents before the Rent Controller in order to enable the appellant to cross-examine the respondent on the above documents. We are also inclined to hold that the two Courts below have wrongly held that the respondent has discharged his above burden of proof in rebuttal to the appellant's evidence that the respondent has inducted All Muhammad into possession of the suit tenement. In our view, it will be just and proper to remand the case to the learned Rent Controller.
We would, therefore, allow the above appeal, with no order as to costs and would set aside the two judgments under appeal and would remand the case to the learned Rent Controller with the direction to allow the parties to produce further evidence on the above question in the light of above observations.