1984 PLP 1164 (CLC)

‑‑ S. 13‑Eviction proceedings‑Subletting of premises‑Certified copies of pleadings in D,. W. proceedings relied upon by Rent Con troller showing admission regarding tenant. subletting of dis puted premises‑Rent Controller, held, rightly evicted tenant from disputed premises‑Fact that landlord not stating in so many words in his examination‑in‑chief has no effect in circumstances. Rent Case No. 2301 of 1971 was filed by the respondent/landlord against the appellants for their ejectment on the ground of default in the payment of rent, damage to the premises and subletting of the premises by the tenant, appellant No. 1 to appellant No.

2. By order dated 30‑11‑1977, ejectment application was granted by the Rent Controller only on the ground of subletting the premises by appellant No. 1 .to appellant No.

2. First Rent Appeal No. 545 of 1977 was filed by the two appellants but the same was dismissed by order, dated 6‑5‑1981 of the learned II Additional District Judge, Karachi. This second appeal has been filed challenging the aforesaid orders of the Rent Controller and the 1st Appel late Authority. I have heard Mr. Mubarak Hussain Siddiqi, learned counsel for the appellants and Mr. Rashiduddin Ahmed Khan, learned counsel for the respondent.

2. It was contended by the learned counsel for the appellants that the two shops in question had been in occupation of appellant No. 1 as the tenant and from the evidence on record it was not established that appellant No. 1. had sublet the shops to appellant No. 2 and as such the two impugned orders could not be passed and are liable to be set aside. Para. 4 of the rent application was referred to by the learned counsel for the appellants, according to which it was averred that appellant No. I had sublet the premises to appellant No. 2 by putting him in exclusive posses sion thereof without the consent or permission of the respondent. In para 4 of the written statement this assertion was denied and it was plead ed that appellant No. 2 had been working with appellant No. 1 since the beginning of the tenancy. It was first contended by the learned counsel for the appellants that there was no assertion in the evidence of the respondent that the premises had been sublet by appellant No. 1 to appel lant No.

2. It is no doubt correct that in his examination‑in‑chief the respondent has not made a statement in these words that the premises had been sublet by appellant No. 1 to appellant No. 2 but he had produced certified copies of pleadings in D. W. proceedings filed by the respondent against the appellant No. 1 and reliance was placed on these certified copies. The Tribunals below have relied upon certain admissions made in the pleadings in the D. W. proceedings, certified copies whereof were produced by the respondent in his evidence. In my view on the basis of those admissions it was legal and proper for the Rent Controller to come to a conclusion that the premises had been sublet/assigned by appellant No. 1 without the consent of the respondent and in the facts and circumstances of the instant case .it was not necessary that the respondent should have stated that the premises had been sublet by appellant No. 1 to appellant No.

2. It was not contended by the learned counsel for the appellant that only certified‑copies of the pleadings in D. W. proceedings had been produced and the Rent Controller could not decide the case on the basis of these certified copies, when the original record of those D. W. cases had not been summoned‑by the Rent Controller. I see no substance in this contention. Firstly, no objection was raised at the time these certified copies were produced about their authenticity or the fact that the pleadings on behalf of the appellant No. 1 had not been made on his behalf in the Small Causes Court. Secondly in my view, it was necessary for the Rent Controller to have summoned the original record when no objection had been raised on the production of the certified copies and if any admissions had been made on behalf of appellant No. 1, the Rent Controller could rely upon the same for purposes of deciding the rent case.

3. It was further contended by the learned counsel for the appellants that appellant No. I, tenant, .had not appeared in the D. W. proceedings in the Small Causes Court and, therefore, he was not bound by any statement made on his behalf. I may here refer to the relevant part of the order of the learned 1st Appellate authority in this regard, which is as follows "In those proceedings, respondent , had claimed the arrears of rent from appellant No. 1 but one Shahabuddin in his own name and on behalf of the appellant No. 2 filed an application as an inter vener stating that appellant No. I is not the tenant of respondent in respect of said shops and that he is carrying' on his indepen dent business in the said shops. This application Exh. 7 is supported by an affidavit of said Shahabuddin at Exh.

8. Then, there are also objections alongwith the affidavit of appellant No. 2 at Exh. 9 filed in those proceedings, according to which, appellant No. 2 is said to be doing business in the said shops since last 5 years and appellant No. 1 has no concern with it and he has further stated that amount deposited by him (appellant. No. 2) may be taken away by the present respondent provided he is accepted as the tenant of the said premises. Finally, there is counter‑affidavit of the respondent at Exb. 10 filed in those pro ceedings according to which, respondent has deposed that after sub letting the premises to the appellant No. 2, appellant No. 1, has gone underground and it is also reiterated that appellant No. 1 is the exclu sive tenant of the said premises. Objections Exh. 9 of appellant No. 2 have been shown to the appellant No. 1 at Exh: 12 and in his cross-examination, he has admitted that appellant No. 2 was representing him in the D. W. proceedings but he had not shown him the papers filed by him in those proceedings. Thereafter, the same objection and affidavit Exh. 9 were shown to the appellant No. 2 at Exh. 15 who has given a complete go‑by saying that he has stated in Exh. 9 that he is ready to deposit the rent in the Court provided he is accepted as a tenant or that appellant No. 1 has no concern in the business carried by him on the said shops. In view of the evidence discussed above it is quite clear that on the basis of objection/affidavit Exh. 9 with which both the appellants were confronted there was hardly need on the, part of respon dent to further state that appellant No. 1 had sublet the said premises to the appellant No.

2. In fact, the purpose of producing the objections and affidavit of the said Distraint Warrant proceedings by respondent appears to be to show that appellant No. 1 had sublet the premises to appellant No. 2 without his permission."

4. In view of the aforesaid state of record before the Rent Controller, I am of the view that a correct conclusion had been reached by the Rent Controller and the appeal of the appellants was rightly dismissed by the First Appellate Authority. In the face of the admission before the Rent Controller by appellant No. 1 that appellant No. 2 was representing s appellant No. 1 in D. W. proceedings, the appellant No. I could not take up the position that he was not bound by the statement made by appellant No. 2 in, the D. W. proceedings. In any case on the basis of the pleadings in D. W. proceedings, it had been established that the premises had been sublet by appellant No. 1 to appellant No. 2.

5. I find no merit in this second appeal. Second Appeal No. 106 of 1981 is dismissed with costs. The appellants are, however, granted time till 31‑3‑1983 to vacate the premises. M.A.K Appeal dismissed.