HAMID ALI MIRZA, J.- This is an appeal under section 21 of the Sindh Rented Premises Ordinance, 1979, directed against the judgment dated 8.5.1991, passed in Rent Case No. 455/1988 (State Life Insurance Corporation of Pakistan Vs. Muhammad Shuji) by learned Senior Civil Judge, Court No. VIH & Rent Controller. Karachi (South), whereby ejectment application, filed by the respondent/landlord was allowed and the appellant tenant was directed to hand over the possession to the respondent landlord within a period of six months.
2. The brief facts are that the respondent landlord is a body corporate constituted and established under "The Life Insurance (Nationalisation) Order No. X of 1972" and is owner and landlord of building constructed on the plot of land, bearing No. 5-S. B.6, Saddar Bazar in the city of Karachi, known as State Life Building No. 5-A, situated at Zaib-un-Nisa Street, Saddar, Karachi, whereas the appellant is the tenant of respondent in respect of Shop No. A, admeasuring 1,330.3 square feet on the ground floor of the said building at the rate of Rs. 350/- per month excluding electricity charges, who has failed to pay rent of the said premises from October, 1986 till February, 1988 and has without the consent of the respondent handed over the possession of the said premises to M/s. N.M. Chhotani, a partnership firm, who has been doing business in the said premises, therefore, the appellant tenant has made himself liable to eviction on the ground of default in the payment of rent and on the ground of sub-letting. The appellant tenant filed his written statement, wherein he denied that he has committed default in the payment of rent and that he had sub-let the premises or has handed over the possession of the premises to M/s. N.M. Chhotani, as alleged. It is further staled that M/s. N.M. Chhotani is the tenant and there is no change in the tenancy of the shop as alleged, the partnership firm M/s. N.M. Chhotani are lawful tenants and are carrying on business therein lawfully to the knowledge of the respondent since 1977.
3. The respondent-landlord filed an affidavit in evidence of Peer Khan, Assistant Manager of the respondent and produced photostat copies of Deed of Lease dated 12.2.1974. Executed between the parties, as Ex. A/2, photostat copy of letter dated 9.1.1974, sent to the General Manager of the respondent, as Ex.A/3, letter dated 15.1.1975, addressed to General Manager of the respondent, as Ex,A/4, photostat copy of letter dated 1.10.1986, addressed to Manager of the respondent, as Ex.A/5 and photostat copy of cheque No. EAB 651884, dated 1.10.1986 in the sum of Rs. 350/-, as Ex. A/6. The appellant tenant filed affidavit in evidence of Muhammad Shafi Chhotani and produced letter dated 4.1.1977, addressed to General Manager of respondent, as Ex.5, registered postal receipt, as Ex. 6, rent receipt dated 8.1.1977 as Ex.7, letter dated 1.1.1978, addressed to General Manager of respondent, as Ex.8, 8 rent receipts as Exs.9 to I6, letter dated March 18, 1985, addressed to appellant tenant, as Ex. 17, 8 rent receipts as Exs. 18 to 25, l2 covering letters addressed to Manager of respondent alongwith the cheques towards the rent, as Exs. 26 to 37, letter dated 21.3.1988, addressed to appellant tenant, as Ex. 38, photostat copy of certificate dated 7.8.1989 of Habib bank Ltd. As Annexure A, the statements of account from Habib Bank Ltd, as Annexures B-l to B-5, photostat copy of cheque dated 1.10.1986 for the sum of Rs. 350/-, photostat copy of cheque dated 12.11.1986 for the sum of Rs. 350/-. Photostat copy of letter dated 12.11.1986, addressed to the Manager of the respondent, photostat copy of cheque dated 3.1.1987 for the sum of Rs. 700/-, letter dated 3.1.1987., addressed to the Manager of the respondent, photostat copy of money order coupon for the sum of Rs. 2,100/- dated 13.1.1987, letter dated 15.1.1987, addressed to the Manager of the respondent, postal registered receipt dated^ 2.1.1987, letter dated 1.2.1987, addressed to the Manager of the respondent, money order coupon for the sum of Rs. 350/- dated 12.11.1986.
Photostat copy of the payment in Court for the sum of Rs. 2,100/- on 18.2.1987, letter dated 6.3.1984.
Addressed to the appellant tenant. After recording the above evidence and hearing the counsel, the learned with Rent Controller & Senior Civil Judge, Karachi (South) passed the impugned judgment, against which the present appeal has been preferred.
4. I have heard the learned counsel for the parties and perfused the evidence and the case law cited by them.
5. The contention of Mr. Iqbal Kazi, the learned counsel for the appellant is that the learned Rent Controller has erred in holding that the appellant has sub-let the premises shop, initially let out to him as Muhammad Shafi Chhotani, to a partnership firm M/s. N.M. Chhotani and further erred in holding that the appellant tenant has committed default in the payment of rent. The learned counsel for the appellant has gone through the entire evidence on record to show that in the beginning the appellant was leased out the premises shop in his individual capacity as Muhammad Shaft Chhotani as per Ex.A/2, Deed of Lease dated 12.2.1974 and he was being issued rent receipts in the name of M/s. N. M. Chhotani and the rent was being paid for title whole year in advance but thereafter in January, 1977, the appellant's proprietorship firm was converted to a partnership concern, whereby his two brothers were inducted as co-partners in the business and he has been paying rent through cheques as partner of M/s, N. M. Chootani and such receipts were being issued in the name of M/s. N. M. Chhotani. He further submitted that he paid rent upto April,1986 as per Ex. 25, thereafter rent for the month of October, 1986, as per Ex. 37, was sent but the cheque was returned as per letter Ex. 38, by the respondent on the ground that the rent was sent by the partnership firm, whereas the premises shop was ie* out in personal capacity of Muhammad Shafi Chhotani and thereafter the appellant tenant sent the rent from October, 1986 to April, 1987.
By cheques but the same was refused, then the rent was sent by money order which too was refused, thereafter the rent was deposited in Court in Misc. Application No. 240/1987 on 18.2.1987 as per photostat copy of rent receipt of Court dated 18.2.1987. He has argued that the appellant Muhammad Shafi Chhotani is in possession of the premises shop and has not divested himself from possession of the same but his two brothers have joined his partnership business, therefore, the appellant was not liable to be evicted under section 15 (2) (ii) (a) of the Rent Ordinance. He contended that ejectment could be ordered only when the tenant has handed over the possession and he himself has left the same but there was no evidence on record that the appellant was no more in possession of premises and that he has put in someone else in possession of the premises who was carrying his business independently. He has placed reliance upon Saeeda Begum Vs. Shamim Ahmed (1994 SCM-R 794), Hafiz Abdul Hameeds. Nek Muhammad (1994 SCMR 2255 at 2264), Jamil Sons Vs. Muhammad Aslant (1992 MLD 1014 at 1018), Abdul Aziz Vs. Ahmed (1991 CLC 957), Pakistan Food Manufacturers Vs. Sadiq Ahmed (1992 CLC 482 at'491), Caltex Oil Ltd. Vs. Mst.
Yasmeen (PLD 1994 Kar. 37) in support of his contention that there has been no breach of section 15
(2) (iii) (a) of the Rent Ordinance. He has further contended that the respondent knew from the very beginning that M/s. N. M. Chhotani were carrying on partnership business since 1977, therefore, the respondents acquiesced and waived their right whereby they could not agitate the plea that the appellant has assigned the tenancy rights in favour of co-partners, In support of his contention, he has placed reliance upon Tahir Shafi Vs. Ahmed A. Dama (1985 CLC 993 at 999), Haji Daud Vs. Mst. Rahim Bai and another (PLD 1980 Kar 126), Ghulam Muhammad Vs. Zia Anwar (PLD 1978 Lah.
1054 at 1060). Learned counsel further argued that the appellant has not assigned or given the tenancy rights in partnership to the co-partner in respect of shop in dispute and the appellant was having exclusive tenancy rights in his favour. The. Learned .Counsel in reply has further argued that the respondent has not based his case on the plea that there has been. Breach of the terms of Lease Deed (EX.A/2) or that the appellant-tenant has assigned the tenancy rights in favour of the co-partners in respect of premises shop but the sole ground, on which ejectment was sought, was that the appellant has handed over the possession, which, on the face of record, has not been proved, therefore, the new plea raised cannot be permitted to be agitated here in appeal.
6. Mr. Mian Mushtaq Ahmed, the learned counsel for the respondent has argued that as per Ex. A/2, Lease Deed's para l2, the appellant could not assign, under let or part with the actual or legal possession of the said premises or any part thereof without the previous consent in writing of the respondents but the appellant by entering into a partnership with others has assigned the tenancy rights in favour of copartners, therefore, the appellant committed breach of the terms of the Lease Deed, the period of which, though has expired, would be binding upon him. He has referred to Ex.
A/3 letter dated 9.1.1974, addressed to General Manager of the respondents by Muhammad Shaft Chhotani, proprietor for N. M. Chhotani, wherein request was made to issue receipt in his name. The learned counsel also referred to cross- examination of the appellant, whereby he pointed out that initially the appellant was tenant in the personal capacity as per Ex. A/2 and was a proprietorship concern of N. M. Chhotani, of whose proprietor was Muhammad Shaft Chhotani but subsequently he converted the tenancy in the partnership concern in the name of M/s. N.M. Chhotani. He"has placed reliance upon Muhammad Suhhan and another Vs. Mst. Bilquis Begum (1994 SCMR 1507), Menek J. Mobed and another $s. Shah Behram & others (PLD 1974 SC 351). Qadri Brothers Foundary & Workshop Vs. Masood Hussain Antria (1991 CLC 1042), Muhammad Saleh Vs. Muhammad Shaft (1992. SCMR 33), Khurshid Ahmed Mukhtar Vs. Syed Abdul Qudus and another (1986 MLD 1293) and Mst. Zarina Khuwaja Vs. Agha Mahboob Shah (PLD 1988 SC 190) in support of his contention. The most important questions for the determination of this appeal are :
(i) Whether the appellant, the original tenant, by his entering into partnership business with his two brothers created tenancy right/interest of other partners in the premises?
(ii) Whether acceptance of rent by the respondents from the appellant after the creation of partnership concern from the proprietorship concern would amount to waiver of rights of the respondent to evict the appellant?
(iii) Whether the rent deposited by the partnership concern would not amount.
To due tender by the appellant according to law?
7. It is admitted position that initially appellant Muhammad Shaft Chhotani was tenant of the respondents as per Ex. A/2. This fact is also corroborated by letters dated 9.1.1974 (Ex. A/3) and letter dated 15.1.1975 (Ex. A/4) which were written by Muhammad Shafi Chhotani, proprietor to the General Manager of the respondent, wherein request was made that rent receipt be issued in his name. The appellant Muhammad Shaft Chhotani in the cross had stated: "It is a fact that I had obtained the shop in the name of my proprietorship concern, it is a fact that I was being issued rent receipt by the applicant in the name of my proprietorship concern N. M.
Chhotani. It is a fact that I had requested through letter Ex. A/3, dated 9.1.1974 to the State Life Corporation to issue me rent receipt in the name of my proprietorship concern N. M. Chhotani. I have paid my rent to the applicant in the name of N. M. Chhotani proprietor. Thereafter I converted my proprietorship concern into partnership concern on 1.1.1977. I had not intimated the applicant regarding change of my proprietorship business of N. M. Chhotani into partnership business. The two othej partners were introduced are my brothers. Neither any of the introduced partner intimated the State Life Corporation regarding change of tenancy. It is a fact that from very beginning after 1974 I have been tendering rent in the name of N. M. Chhotani proprietorship concern and I am receiving the receipts in the same name, It is a fact that I did not request the applicant to issue me the receipt in the name of partnership firm. I see Ex. 17, which is a letter from the applicant regarding the payment of rent and discontinuation of bill as per Ex.
17. Even then I did not intimate the applicant about the partnership firm nor I asked them to write the letters in the name of partnership firm. I used to tender the rent by cheque in person. 1 used to tender- the rent on counter/reception. I do not know if the applicant's officials for the first time saw my letter as N.M.
Chhotani partnership firm in October, 1986, then they came to know that I have changed my proprietorship business in the partnership business. It is a fact that they returned my cheque for the first time which was issued in the name of N.M. Chhotani partnership firm and thereafter I did not deposit the rent in Misc. Rent Application in the name of N.M. Chhotani proprietorship concern. It is a fact that we are three equal partners of the assets of firm and the shop."
8. From the above evidence it is proved that the appellant was initially a proprietorship concern but thereafter was changed into partnership concern whereby two of the appellant's brothers were inducted as partners in the concern without permission of the respondents. This fact has not been denied by the appellant himself in his evidence. The only objection of the learned counsel for the appellant is that the appellant Muhammad Shaft Chhotani has not handed over possession of the premises as required by section 15 (2) (ii) (a) of the Rent Ordinance, therefore, the appellant cannot be said to have contravened the provisions of Rent Ordinance. Section 15 (2) (iii) (a) reads: "The Controller, shall, make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that (iii) the tenant has, without written consent of the landlord (a) handed over possession of the premises to some other person;"
The question would arise whether the appellant after his entering into partnership concern from the proprietorship concern-, any right, title or interest was created in the tenancy in respect of the said premises in favour pf co-partners who could be deemed to be in possession thereof. The appellant in his cross-examination has himself admitted that he did not obtain any permission for change of proprietorship business into partnership business from the respondents and further that they*were three equal partners of assets of the partnership firm. All partners will have right, title and interest in the tenancy, good-will of business and assets according to their share unless otherwise provided in the partnership deed. The appellant has himself admitted that all partners were equal partners in the assets of the firm. The appellant in rebuttal has not produced partnership deed to show that no right, title and interest was created in favour of co-partners in respect of tenancy right of the said premises and it exclusively remained with him. Mere fact that the appellant also remained in possession of the premises alongwith his co-partners would not mean that there has not been contravention or breach of the terms of Lease Deed Ex. A/2 or provisions of section 15 (2) (iii) (a) of the Rent Ordinance. Reference is made to Muhammad Suhhan Vs. Mst. Bilquis Begum (1994 SGMR 1507 at page 1510). Wherein it was observed; "It is well-settled principle that a .Sole proprietor firm has no legal existence. It is the sole proprietor who is the real person for performance of duties and obligations. If a sole proprietor 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 proprietor firm which existed earlier."
9. In para 4 of the judgment it has been further observed:
10. 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."
II. In the instant case the appellant has failed to rebut the evidence of the respondents on the point that the co-partners did not acquire share in the tenancy rights of the premises. The appellant failed to produce even the partnership deed to show if there was any such clause whereby tenancy rights were exclusively to remain with the appellant and co-partners would have no share in the tenancy rights of the premises. Reference is also made to Manek J. Mobed and another Vs. Shah Behram and others (PLD 1974 SC 351 at page 365), wherein it was observed; "If a person obtains lease-hold rights in his own name and subsequently assigns them to affirm or to a private limited Company consisting of family members it cannot be said that no change has taken place in the status of the tenant or that it is not a case of subletting or assignment of lease hold rights."
At page 368 of the judgment it was observed: "Lastly it was urged by Mr. A. K. Brohi that the plaintiff was estopped by conduct from questioning the status of defendant No. 2 as a tenant inasmuch as he had accepted cheques for rent of the Paradise Cinema from defendant No. 2. It was pointed out that cheques were signed by Jehangir J.
Mobed as Managing .Director of the Paradise Theaters Limited and there were receipts in his hand acknowledging payment of rent.
There is no force in the contention. Neither defendant No.1 nor defendant No. 2 served a notice on Mr. Boman Abadan Irani that the latter had entered into possession as sub-tenant or assignee of lease-hold rights. Formerly cheques for rent were issued by Mr. Jehangir J. Mobed under his signatures. Cheques for rent were now sent by him in his name with the description Managing Director, Paradise Theaters Limited'. This addition by itself did not constitute notice of sub-letting to the landlord. Moreover, the relevant condition of tenancy was "without the permission and consent of the landlord in writing." It was idle on these facts to contend that by mere receipt of cheques signed by Jehangir J. Mobed as Managing Director, Mr. Boman Abadan Irani had waived the fulfilment of the condition that the tenant will not sublet the Paradise Theatre without the permission and consent in writing of the landlord. The doctrine of estoppel had therefore no application in the facts of the case."
12. In. The instant case the appellant himself has admitted that the respondents were never informed by him or by the co-partners that tenancy of proprietorship concern was changed to partnership concern and at no time request was made to the respondents even for change of receipt in the name of partnership firm. It has also not been denied in the corss-examination by the appellant that the respondents for the first time came to know in October, 1986 that N. M. Chhotani partnership was created in. Place of sole proprietorship concern. Reference is also made to Qadri Brothers Foundry Workshops 1's. Masood Hussain Antria (1991 CLC 1042 at 1045), wherein it was observed: "He also invited my attention to several other documents prevalent on record to urge that the plot in question was let out Jo an individual whereas it is now occupied by a firm and hence it was clear case of subletting inasmuch as a firm is a different entity than the individual partners, In respect of his contention he placed reliance on the authorities reported in PLD 1984 SC 351 and PLD 1983 Karachi 168.
13. After hearing the arguments of learned counsel for parties and perusal of the documents referred to above, I am clearly of the opinion that the learned Rent Controller has committed no error in holding it to be a case of subletting for the following reason: "The premises, therefore, is being used by a partnership firm since 1980. Therefore, there is clear subletting by the opponent."
14. In view of the evidence adduced by the parties and the case law above discussed it could conveniently be said that that the appellant after entering into partnership concern from the proprietorship concern, created right, title and interest in the tenancy of the said premises in favour of co-partners as well, therefore, the copartners would be deemed to be in possession of the said premises alongwith the appellant and thereby question No. 1 is hereby answered in the affirmative.
15. So far question No. 2, whether acceptance of rent by the respondent from the appellant after creation of the partnership concern from the proprietorship concern would amount to waiver of rights of the respondents from evicting (lie appellant, the same would be answered in the negative.
The respondent in the affidavit in evidence has stated that upto September, 1986, the appellant paid rent of the said premises to him representing himself as proprietor of N.M. Chhotani but on 1st October, 1986, in order to deceive him, the appellant tendered rent of the said premises representing himself as partner of N. M. Chhotani. The appellant in the cross-examination has admitted that neither he nor his co-partners ever intimated the respondent regarding change of proprietorship business of N.M. Chhotani into partnership business. The appellant also admitted that even after the receipt of Ex. 17, the respondents were not intimated about the change of proprietorship concern to the partnership firm. The appellant also did not deny the cross- examination that the respondents for the first time came to know in October, 1986 about the change of proprietorship into partnership business by the appellant. The appellant also admitted that cheque for the month of October, 1986 was sent but it was refused and was returned to the appellant on the ground that the said cheque was issued by the partnership concern and not by proprietorship concern of N. M. Chhotani as per Ex.
38. The above evidence shows that the respondents were not aware prior to October, 1986 of the Cast that the said change in respect of the business of the appellant from proprietorship concern to partnership concern has taken place.
The satisfactory evidence has been brought on record to rebut the respondent's evidence to show that in spite of the knowledge of the respondents about the change, the respondent remained quiet and no section was taken against the appellant.
16. Reference is also made to Muhammad Saleh Vs. Muhammad Shaft (1982 SGMR 33 at page 39), wherein it was observed: "Reading the above-noted definition and quotation together jt is evident that in order to establish "waiver" by conduct" it must be shown, firstly, that the person entitled to the right and knowledge of the breach thereof, and secondly, that he had acquiesced or failed to act, notwithstanding that knowledge. Therefore, mere failure to object or to take action due to ignorance of the breach of his right cannot be said to give rise to any "waiver by conduct."
"Even otherwise mere inaction or allowing an opportunity to pass by does not necessarily amount to waiver because when, for instance, a tenant consistently fails to pay rent, being aware of his obligation to pay it, or where there is a delay by the landlord in tiling an ejectment petition out of decency to the extent or hesitates in going to the Court or for any other Treason, the tenant cannot- be allowed to take up the plea that the landlord had, by the conduct in failure to take action, waived his right to receive the rent. It has been held that even gratuitous indulgence shown by one of the parties does not constitute estoppel or waiver. Omission to enforce one's legal right strictly cannot give rise to an inference that the right has been abandoned."
17. In the instant case it would appear that till October, 1986, the respondents were neither aware nor were intimated by the appellant about the change of tenancy from the sole proprietorship to partnership concern. The appellant has admitted that the respondents were never informed nor were they asked to change the receipt of rent in the name of partnership concern. It is correct that some of cheques have been issued by the appellant as one of the partners of the partnership concern but the same were accepted by the concerned clerk who has to pass on the same for collection in bona fide good faith without knowing the fact that some change in tenancy has taken place which would not itself amount to waiver or acquiescence on the part of the respondents in view of the principles laid down by the Honorable .Supreme Court, as reproduced above. Reference is also made to Khurshid Ahmed Mukhtar Vs. Syed Abdul Qudus and another (1986 MLD 1293 at page I295) where it was observed: "The fact that the landlord had the knowledge that someone else is in possession of the shop is of little significance, as such the sub-letting cannot be condoned. The landlord's right to obtain possession of the disputed shop under section 13 (2) (ii) is in no way impaired by his acquiescence in the breach of the condition which would under the Transfer of Property Act enable him to re- enter the leased premises, what is denied by his waiver is the right of re-entry and not other remedies open to him under the law. I am satisfied that on the facts of this case, the evidence does not disclose that the appellant concurred with the subletting in question. The appellant has established the ground of eviction under section 13 (2) (ii) (a) with regard to sub-letting."
18. In view of the aforesaid reasonings and the case law, acceptance of rent by the respondent from the appellant after the creation of partnership concern from the proprietorship concern in the stated circumstances would not amount to waiver or acquiescence on the part of the respondents to seek eviction from the premises under the law.
19. It was also contended by the learned counsel for the appellant that the terms and conditions of the Lease Deed Ex. A/2, after the expiry of its period would not be applicable to the instant case, therefore, the only provision which would govern the case of sub-letting would be the provision of section 15 (2) (iii) (a) of the Rent Ordinance. The learned counsel has failed to persuade me to agree with him. In view of the decision reproduced in Mst. Zarina Khuwaja T.V. Agha Mahhoob Shah (PLD 1988 SC 190 at page I92), wherein it was observed: "The obvious reason was that the pre-existing law before the reenactment was kept intact; namely, that the previous tenancy arrangements between the parties will continue to operate notwithstanding the termination of the period and will govern the continuance of tenancy as visualised in the definition of the tenancy holding over.... Section 15 of th
20. In view' of the above decision of Hon'ble Supreme Court, the condition under para l2 of the Lease Deed (Ex. A/2) would be applicable and actionable though the said tenancy period has terminated as the said condition being not repugnant to the present provisions of Rent Law.
Accordingly the terms under Ex. A/2 and also in case of breach of section 15 (2) (iii) (a), the respondents would be entitled to seek eviction of the appellant. Accordingly contention of the learned counsel for the ^appellant that eviction could not be ordered for breach of terms under para l2 of Lease Deed Ex.
A/2 being new plea as well has no force and merit. The appellant could be evicted for breach of term under para l2 of Ex. A/2 as well as for breach, of provisions of section 15 (2) (iii) (a) of the Rent Ordinance.
21. The last question, as to whether rent deposited by partnership concern would not amount to due tender by the appellant according to law be also answered in the affirmative, It is admitted position that the respondents rented out the said premises to the appellant Muhammad Shaft Chhotani and it was not rented out to the partnership concern where two more persons were inducted in the partnership concern, It has been admitted by the appellant that after the refusal of rent by the respondent, the appellant did not deposit rent in N.M. Chhotani proprietorship concern. The rent tendered by one of the partners of partnership concern would be a rent from the business of partnership concern and not from the proprietorship concern of Muhammad Shafi Chhotani.
Therefore, the tender of the rent by the appellant in the capacity of one of partners of M/s. N.M.
Chhotani partnership concern would not be due tender according to law from the proprietorship concern. Accordingly rent deposited by the partnership concern in the Court would not amount due tender by the appellant under the law therefore latter was defaulter in the payment of rent.
Now remains the decisions cited by the learned counsel for the appellant.
22. In Saeeda Begum v.. Shamim (1994 SCMR 791) case, the appellant/landlady had filed ejectment application against the respondent/tenant for ejectment on the ground that the respondent/tenant had handed over possession of the tenement of some other person without the written Consent of the appellant which application was dismissed by the learned Rent Controller and appeal tiled before this Court was also dismissed against which Hon'ble Supreme Court was moved, wherein Mr. Fakhruddin G. Ebrahim, learned senior counsel for the appellant had contended that as the appellant had proved the factum that the respondent had inducted one Ali Muhammad s/o Qasim Ali in the suit tenement, the burden of proof stood shifted on the respondent to explain in what capacity said Ali Muhammad was put in possession of the suit tenement, which burden the respondent failed to discharge. Respondent's counsel Mr. Zia Qureshi contended that the respondent had discharged the above burden of proof by producing partnership deed dated 1.7.1986 and certificate of registration of firm issued by Registrar of Firms indicating respondents and the said Ali Muhammad joint partnership with effect from 1.7.1986 and as per clauses 9, 10. 11 and 13(a) of the partnership deed the respondent had not parted with possession of the suit premises and the said Ali Muhammad was his only working and financial partners. It was also further held that if a tenant takes a working partner or financial partner Bonafide and retains the physical possession of the premises inasmuch as he sits in it for carrying on business, above provision will not be attracted. The Hon'ble Supreme Court ultimately remanded the case holding that two Courts below have wrongly held that the respondent had discharged his above burden of proof in rebuttal to the appellant's evidence that respondent has inducted Ali Muhammad into possession of suit tenement. The said case is distinguishable to the facts of the case as there has been no such partnership deed or books of account to show that the copartners were only working and financial partners in the partnership firm while the tenancy rights of premises exclusively remained with the appellant.
23. In Hafiz AbduI Hameed vs. Nek Muhammad (1994 SCMR 2255 at 2264) case, appellant who was running the business off takers known as Rahat Bakery in an adjacent shop to the premises in dispute in partnership with his partners. He filed ejectment application against the respondent on the ground that disputed premises were required for the business as accommodation already available was insufficient for his needs and it was held that appellant's/'landlord's need of the premises for the firm in which he had only l/3rd share and the partnership firm by itself was not legal entity and the partners constituting the firm occupied the premises jointly for their joint use which occupation would not amount to be in the exclusive use of landlord or the owner. If the occupation or use of a third party is introduced and the premises are partly being used and occupied by such person as well, even joint with the landlord it will not be covered by this term "own occupation or use." This case is also a distinguishable to the facts of the instant case as in the said case the words "in occupation or use" was held which could not be extended to cover persons who were outsiders not failing within the description of family members.
24. In M/s. Jamil Sons Vs. Muhammad Aslam & three others (l992 MLD 1014) case the respondents/landlords filed eviction application against the appellant/tenant on the ground that the latter had sublet the shop premises to appellant No. 2 but the appellant denied subletting of the shop premises and the respondent could not produce evidence to show parting with, of possession by the appellant and that respondent knew that appellant No.1 was a partnership concern under the name and style of M/s. Pak Tea Company and that the first appellant retained the legal possession and exclusive possession and enjoyment remained with fiim. The facts of the said case are distinguishable to the facts of the instant case considering that the co-partners acquired as per their right and interest in the tenancy as well as deposed by the appellant himself in the cross-examination.
37. In Tahir Shaikh Kv. Ahmad A. Dada case (1985 CLC 933) the respondent/tenant was not tenant in his individual capacity or as a sole proprietor of Dama Clearing Agencies but Dama Clearing Agencies as a firm were tenants of the appellant/landlord and the rent was being paid by the firm from the very beginning, therefore, the said case is distinguishable to the facts of the instant case.
38. In Haji Dawood Vs. Mst. Rahima Bai (PLD 1980 Kar. 126 ) case, original tenant Samandar Khan was allowed by the original owner Usman Khan to sublet a portion of premises in order to supplement former's income who was suffering from tuberculosis and after the death of Samandar Khan tenancy devolved by operation of law upon the respondent Rahima Bai being his widow and the premises were purchased by Haji Dawood who filed ejectment application against the respondent Rahima Bai on the ground that a shed had been sublet t* a person by the respondent and this Court held that as the previous landlord as well as the present appellant allowed the original tenant, husband of present respondent, to sublet the disputed premises, therefore, the appellant waived by his conduct his right regarding eviction on the said count. In the circumstances, the said case is distinguishable to the facts of the instant case.
39. In Ghulam Muhammad and two others 1's. Zia Muhammad (PLD 1978 Ladh. 1054) case, there was ample evidence on record to show that the respondent/landlord did have the knowledge after the user of the shop by the firm at least since 1967 though according to evidence on record firm had been doing its business in the shop since 1961-63 and the respondent had been accepting rent from the firm throughout without any objection for years which was held to amount waiver on the part of the respondent/landlord and were estopped to turn round and invoke their 'right which they had abandoned by their conduct and had accepted the firm as their tenant, In the circumstances the said case is distinguishable to the facts of the instant case.
40. In view of the aforesaid reasonings and case law, appeal has no merits which is hereby dismissed. The appellant is directed to hand over the vacant possession of the premises to the respondents within sixty days subject to condition that the rent for the said period would be deposited.