1995 PLP 1002 (MLD)

(2) If issue No. 1 is proved whether any notice has been served? If not its effect? OPA. (3) Whether the respondent No. 1 has sub‑let the premises to respondent No. 2? OPA. (4) Whether the respondents have damaged the premises and impaired the value? OPA (5) Whether the respondent No. 1 is a defaulter? OPA. (6) Relief.

4. In support of his case, respondent No. 1 examined Ghulam Dastgir, Assistant Director, Telephone Department as A.W.1, Muhammad Munir son of Ghulam Rasool as A.W.2 and appeared himself as A.W.3.

5. In rebuttal, the appellant examined Muhammad Aslam son of Ghulam Muhammad as R.W. 1 and respondent No. 2, Haji Aman Ullah Khan as R.W.2. The attorney of the appellant was examined as R.W.3.

6. On the basis of evidence led before him, the learned Rent Controller by his order dated 14‑9‑1989 directed eviction of the appellant and respondent No. 2 only on the ground of sub‑letting. Aggrieved, appellant went in appeal which was accepted by the Additional District Judge on 5‑1‑1991. Respondent No. 1 brought the matter to this, Court by filing S. A.O. 28 of 1991 which was treated as a Constitutional petition. It was accepted on 29‑9‑1991 and the case was remanded to the Additional District Judge for decision afresh. In the post‑remand proceedings, the Additional District Judge has dismissed the appeal of the appellant and maintained the order of the Rent Controller on 25‑3‑1992.

7. Mr: Saif‑ud‑Din Chughtai, learned counsel for appellant has challenged the correctness of the finding taken by the Rent Controller as also the Additional District Judge that respondent No. 2 was a sub‑tenant of the appellant. In this context, learned counsel has argued that in order to establish sub‑tenancy it is necessary for the landlord to prove that the tenant was receiving some rent from the person who had been inducted into possession of the premises and as there was no evidence to that effect, order of eviction on the ground of sub‑letting was not sustainable.

8. Learned counsel for respondents has, on the other hand, defended the impugned order by arguing that it stands established on the record that appellant has since long left the premises which were in occupation of Haji Aman Ullah, respondent No. 2 who was a sub‑tenant under the appellant.

9. Having heard learned counsel for the parties and perused the record, I do not find any force in the contention raised by the learned counsel for appellant. It is not disputed and stands admitted on the record that the premises in question are presently being occupied by Haji Aman Ullah, respondent No.2. The only dispute between the parties is as to capacity of the said respondent. In this respect, appellant appears to have been taking different stands on different occasions. In the written statement filed by respondent No. 1, it was stated that on account of bad health of the appellant, respondent No. 2 was working on his behalf on remuneration. Haji Aman Ullah Khan, respondent No. 2, the special attorney of the appellant while appearing as R.W.2 has admitted that appellant was no longer occupying the premises physically but was working as an octroi contractor. It is also proved on the record that the appellant was doing business of films previously. It is also established on the record that respondent No. 2 has set up his own independent business under the name of M/s. Taskeen Pictures as also obtained telephone connection under that name and style as is evident from the statement of Ghulam Dastgir, A.W.1 an employee of. Telephone Department. Muhammad Aslam, R.W. 1, stated that Haji Aman Ullah Khan was a broker with which appellant had no connection and further that Haji Aman Ullah Khan was doing his own business and that‑ he also sometimes works on behalf of the appellant. A similar statement was made by R.W.3, the attorney of the appellant who also admitted that repair of the premises is carried out by respondent No. 1.

10. Both the Rent Controller as also the Additional District Judge are justified in holding that appellant was no longer occupying the property which was now in exclusive use and occupation of respondent No.

2. In Khawaja Muhammad Yaqoob Khan and another v. Sh. Abdur Rahim and others 1968 SCMR 734, the Supreme Court of Pakistan was pleased to observe that once the occupation of third person is established on E the record, it is for the tenant to show capacity in which that person is in possession. In the present case, from the evidence, the inevitable conclusion is that the tenancy has been surrendered in favour of respondent No. 2 without permission of the landlord. Under section 13(2)(ii) of the Punjab Urban Rent Restriction Ordinance, 1959, a tenant is liable to be ejected not only when he sublets the premises but also when he transfers his right under the lease. That being so, the argument of the learned counsel for the appellant that in the absence of any evidence to prove payment of rent by B respondent No. 2 to appellant, his eviction cannot be ordered on the ground of sub‑letting, is not sustainable. The concurrent findings recorded by both the Courts below are unexceptionable and call for non‑interference in this second appeal. As a consequence of the above, this appeal is dismissed, leaving the parties to bear their own costs. The appellant is allowed four months time from today to vacate the premises. AA./M‑1944/L Appeal dismissed.