KARAM ELAHFB CHAUHAN, J.-Mst. Umatul Islam (hereinafter called the landlady) :filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance VI of 1959 (hereinafter called the Ordinance) for eviction of Akhtar Ali (hereinafter called the principal tenant/ appellant No. 1) on the ground that he 'had sublet the shop in dispute to Khan Shah (sub- tenant/appellant No. 2) without her consent. The petition was resisted and the allegation of subletting was denied and it was averred that it was not a bona fide petition inasmuch as it had been filed with the sole purpose of enhancing the rent and putting pressure on the tenants, The learned Rent Controller held that there was no subletting inasmuch as all that bad happened was that the principal tenant had after obtaining the lease started a partnership business along with appellant No. 2 in the shop in dispute which did not legally amount to subletting of the shop or transfer of any of the lease rights of the principal tenant. It was further held that the petition had been filed for an ulterior purpose of enhancing the rent. After giving these findings the learned Rent Controller dismissed the petition on 25-7-1977.
2. The landlady filed an appeal which was accepted by the learned Additional District Judge, Peshawar, by means of his judgment and order dated 31-1C-1977. The learned Additional District Judge reversed the findings of the learned Rent Controller and held that there was nothing to show that the ejectment petition had been filed in any mala fide manner or for any ulterior motive of enhancing the rent. He further found that there was ample proof on the record about the subletting of the shop on the part of the principal tenant in favour of sub-tenant with whom the principal tenant according to his own plea had after obtaining the lease allegedly started a partnership business in that very shop and whom he had given a right to enter into and occupy the shop for pecuniary consideration. It was held that actually it was not a case of partnership but of clear subletting. Consequently the learned Additional District Judge set aside the order of the learned Rent Controller and directed the tenants to vacate the shop. The tenants filed a second appeal being S. A. O. No. 72/77 but without any success as the same was dismissed by a learned Single Judge of the Peshawar High Court on 22-7-1978. The tenants have come up in a petition for special leave to appeal against the same to this Court.
3. Mr. Mehfooz Khan, learned Advocate argued the case at some length. He tried to show that the findings of the High Court on the two points mentioned above Were not correct. Taking up the question of subletting he submitted with reference to Motal Bai v. Abdul Aziz and others (PLD 1968 Kar. 635) that all that had happened in the instant case was, that the principal tenant had simply taken the other tenant into a partnership for doing a joint business in the shop in dispute.
Continuing the submission he argued that if a person started a joint partnership business in a shop of which he is a sole tenant, and lets other partners occupy and, enter upon that shop, this can never and in no circumstances amount to subletting of the shop or transfer or assignment of any - of its lease rights partly or wholly to the other partner or partners or the firm and the two Courts below have erred in taking exception to the same in the instant case and holding that such an arrangement was violative of the law relevant on the subject as contained in section 13 of the Ordinance which authorises eviction of a tenant if he "has without the written consent of the landlord transferred his rights under the lease or sublet the entire holding or rented land or any portion thereof". The contention has no merit, and if the precedent aforesaid lays down any such sweeping statement the same cannot be endorsed without reservations as pointed out ahead. Our reading of that case however shows that it clearly lays down that each case should be examined with reference to its own facts and circumstances. However, the said case turned upon its own peculiar facts and circumstances and especially clause (5) of the relevant partnership agreement, which, as it appears from pages 641 and 646 of the report, laid down, that the principal tenant will remain the tenant of the premises and on dissolution of the firm the other respondents (partners) will vacate the premises without making any claim thereto. Relying on the aforesaid clause the High Court held that that was a clear indication that there was no transfer or assignment of tenancy and as such no subletting either but that it was only a case of "license'". Even though the High Court in that case failed to determine-(a) as to what was- the exact factual arrangement and position during the subsistence of the partnership apart from the above--mentioned clause
(5) which covered only the situation after dissolution of partnership : (b) what was the arrangement or agreement with regard to payment or contribution of rent by the other partners ;
(c) had the principal tenant a right during the subsistence of the partnership to ask the other partners to vacate the premises and shift the business elsewhere ; (d) was the principal tenant receiving any pecuniary return for allowing the other partners and the firm to occupy the shop ; (e) if a firm in the eye of law is a "person" or entity distinct from its partners, then what was its effect on the tenancy of the principal, tenant, which he allowed the firm to occupy and share, and on what terms viz. By making it a stock in trade or assets of the firm etc. It may be pointed out that whereas under Pakistan law a firm is a person or entity different from its partners but this is not so under the English law, and while examining the relevancy of English cases on the subject that distinction shall have to be kept in view. Reference here may be made to Bhagwanji Morarji Goculdas v. Alembic Chemical Works Co. Ltd. And others (PLD 1948 P C 178) where it was held that "before the Board it was argued that under the Indian Partnership Act, 1932, a firm is recognised as an entity apart from the persons constituting it, and that the entity continues so long as the firm exists and continues to carry on its business. It is true that the Indian Partnership Act goes further than the English Partnership Act, 1890, in recognising that a firm may possess a personality distinct from the persons constituting it ; the law in India in that respect being more in accordance with the law of Scotland, than with that of England. But the fact that a firm possesses a distinct personality does not involve that the personality continues unchanged so long as the business of the firm continues.
The Indian Act, like the English Act, avoids making a firm a corporate body enjoying the right of perpetual succession. The agreement of 7th December, 1907 was made between the company and four named individuals, and when all of those four individuals had ceased to be members of the firm, there was no privity between the company and the firm as it then existed". This passage clearly shows that a firm can possess a personality different from the persons constituting it, though the converse proposition that the personality remains unchanged was held as not correct because firm is not a corporate body having a perpetual succession and if the partners of a firm who have jointly made an agreement with a different limited company, at a later stage cease to be the partners of the firm, the aforesaid agreement which was with those partners cannot be considered to continue with the firm as such on the mere ground that the business of the firm is still continuing despite the exit of - the original partners. In the light of this position of law it is for consideration that whereas possession of a partner as such may be possession of the firm but, whether possession of firm and other partners can also be considered as private possession of one ,individual partner who holds the tenancy in his individual right. In other words, can it not be said that the firm is a distinct person from the principal tenant, and as such possession of one cannot be considered as possession of the other, (f) even though de jure and "legal possession" is always of the principal tenant but in cases of unlawful subletting or assignment-(unlawful in the sense of subletting or assigning without consent of the landlord) is it not the "de facto" possession which is to be taken note of as against the "legal possession" and (g) whether it is an inflexible rule which is always to apply to cases of this type, that where lease rights remain "property" of the principal tenant though they may be some arrangement sometimes constitute assets of the firm then that factor is enough to hold that there has not taken place any subletting or assignment of tenancy or tenancy rights or does this arrangement rather point to the contrary because in (unlawful) subletting the leasehold rights will always "legally" remain the "property" of the principal tenant . . . .
However we have no intention to go into these and various other relevant aspects of the subject and will only observe that the matter is such which needs a detailed examination or re- examination in some more appropriate case inasmuch as in the present case before us the matter is clinched by Exh. P/1 which was read before us by the learned counsel for the petitioners himself, and which is a copy of the contents of a document as retained in Register of Muhammad Yusaf; Deed-writer who had deposed that he was a scribe of that document which was executed by Akhtar Ali Shah principal tenant and Khan Shah (sub-tenant). According to that document the arrangement which took place between the principal tenant and the sub-tenant (appellant No. 2) was that Akhtar Ali (principal tenant) in consideration for Rs. 10,000 gave up his own possession from half of the shop and passed it on to appellant No. 2, exclusively who onward became solely liable for payment of rent thereof and responsible for all consequential liabilities. The agreement further indicated that even earlier also he was proportionately liable for the rent o the whole of the shop which was being jointly shared by him and the principal tenant. All these facts clearly show an unlawful subletting and transfer of tenancy rights. This may be read along with para. No. 1 of the written statement of Khan Shah in which he had admitted that it was he who was the tenant of the main landlord and that Akhtar Ali Shah had no concern, whatsoever, with the disputed shop.
Learned counsel on the basis of Motai Bai v. Abdul Aziz and others submitted that all this was nothing but a "licence" and that it constituted neither an assignment nor a creation of any sub tenancy. The terms of Exh. P. 1 reproduced above . Do not warrant raisin of any such plea and they totally demolish the case of the appellants instead C of giving them any support.
4. As regards the point that the ejectment application had been filed with an ulterior motive of enhancing the rent and putting pressure on the principal tenant, there is not an iota of evidence on the subject and the learned counsel was not in a position to point out any defect in the findings of the two Courts below on this subject.
5. The result is that this petition has no merit and is dismissed. The petitioners are given four months' time to vacate the shop subject to their continuing paying the rent regularly.' An order to this effect was pass e by us on 7-1-1979. The present judgment provides detailed reasons for that order.