2010 PLP 159 (CLC)

SHAHID ANWAR BAJWA, J.

Facts giving' rise to this constitution petition are that petitioners are the landlords and respondent No.3 is tenant. Present respondents Nos.4 and 5 are arrayed in the ejectment application also and are claimed to be persons to whom possession had been handed over by the tenant. Property in question is 42 and 42-A, at top floor, Masood Chamber Building, on Plot No.W-O-6/23, Wadhomal Quarters, M.A. Jinnah Road, Karachi. Ejectment application was filed on the ground of default and parting with possession. Learned Rent Controller vide order, dated 6-5-2000 allowed ejectment application on the ground of parting with possession. However, ground of default was dismissed. Appeal was filed against order of Rent Controller by respondent No.3. Appeal was allowed vide order dated 9-3-2004. On 6-4-2009 it was noticed that respondents Nos.4 and 5 have been served through publication in daily Nawa-e-Waqt dated 1-2-2009 and 'service was held good. Respondent No.3 was present in person.

2. Learned counsel for the petitioner argued that respondent No.3 handed over possession to the respondents Nos.4 and 5 and converted tenement into a kind of-guesthouse. Notice of the rent case was received by respondent No.5. Respondent No.3 had sublet premises and handed over possession of premises to respondents Nos.4 and 5 without permission of landlord. Respondent No.3 was realizing rent from respondents Nos.4 and

5. Respondent No.5 stated that he is living in Punjab Club but did not produce any evidence that he was living there. In presence of specific allegation that respondent No.5 was living in Punjab Club it was his responsibility to establish his position before Rent Controller and thereafter he, has to produce documentary proof thereof of inducting any person without consent of landlord and of parting with possession. Learned counsel for petitioner in support of his submission relied upon M.D. Tahir, Advocate v. Lahore High Court through Registrar 1994 SCMR 1507, Tariq Hussain Hashmi and others v. Master Ali Ammar and others 2001 MLD 21, Minochar N. Kharas represented by Legal Heirs v. Ali Hassan Manghi and 6 others 1986 CLC 1378, Messrs Premier Mercantile Service and another v. S.M. Younus and 2 others PLD 1982 SC 79 and Haji Muhammad Khan and 2 others v. Islamic Republic of Pakistan and 2 others 1992 SCMR 2439.

3. Learned counsel for respondent No.3 referred to order of the trial Court where trial Court had observed that burden of proof whether the respondent No.3 had sublet premises in question to respondent No.5 was on the respondent No.3. He submitted that burden to prove is always on the person who makes assertion and since it was assertion of the landlord that tenant had sublet premises/parted with possession, burden to prove such fact was on the landlord. Order of Rent Controller based on surmises and conjectures and order of the Appellate Court is in consonance with evidence produced. Learned counsel relied upon Abdul Salam v. Mrs. Tahir Zaidi 1988 MLD 1854 and Matloob v. Syed Abdul Qayyum 1988 MLD 2150.

4. I have considered submissions made by the learned counsel and perused the material on record as well case-law cited by the learned counsel.

5. Point at issue is only whether respondent No.3 parted with possession of demised premises by inducting respondents Nos.4 and 5 therein. It is case of landlord that respondent No.5 had sublet premises in question and parted with possession of the same by inducting respondents Nos.4 and 5 in the tenement. Case of respondent No.3 is that respondents Nos.4 and 5 are his relatives. Respondent No.5 appeared as a witness and specifically stated that he lives in Punjab Club. Respondent No.5 in his cross-examination stated as under:

"I live in Punjabi Club, Bohri Road. It is correct that when I made my I.D. Card, Passport Licence I was living in Punjabi Club. I live on rent in Punjabi Club. I have not filed my document showing that I am still living in Punjabi Club. It is correct that I have taken the notice from bailiff at the premises in question because on that day I have gone there to see my uncle (Mamu). It is correct that I did not told the bailiff that I do not live there neither he asked me my mamo lives in demise premises with his nephews and four others people. I some time comes to visit my mamo after two days three days or some times daily. It is incorrect to say that my belonging are also in demise premises nor my cot is there. It is incorrect that I live in demise premises I have never seen Masood."

6. Respondent No.3 in his cross-examination stated as under:

"... In my absence my nephew was living at this place. ... It is incorrect that Advocate has asked me not to allow people at upstairs. My nephew, my grandson and my son lives with me in present building they live with me but they are not tenants. Their names are Mukamal Khan, Sher Khan, Rehman Din and Said Bag Khan. It is incorrect besides these people other people sleep here. It is correct that I did not file any money order receipt. Opponent No.3 is my nephew and does not live with me. ... It is correct that my nephew opponent No.2 signed the Court notice and received it."

7. Petitioner/landlord besides establishing that notice of ejectment application was received on behalf of respondent No.3, by respondent No.5 at demised premises in his cross-examination as under:

".... It is correct in my second notice dated 29 August, 1998 A/5 I have not mentioned about the sub-letting. After the postal receipt that opponent has left his village I tried to contact him but could not contact as he has left after sub-letting the premises, then I came to know about it after my inquiry and came to know from building people. Bank people and Chaiwalas. I visited myself personally to the premises. I have written that I made the inquiry in my A/E though I have not used the word inquiry, nor has mentioned that Chaiwala and Bankwala confirmed this fact. I have seen opponents Nos.2 and 3 once. I came to know in August, 1988 ' after I gave notice to opponent on that opponent no one has subletted the premises; when I personally visited the premises two three persons were sitting there who told me that Feroz Khan no more lives here. I do not know the name of those persons. Service upon Feroz Khan has been made on the same address. It is incorrect that I have based my application only upon the information given to me by Gul Hassan. It is incorrect that Feroz Khan still lives in demised premises and is Chowkidar of building; opponents Nos.2 and 3 live in case premises non-collecting water charges from my, tenement. It is in correct that I did not demand the water charges from Feroz Khan through notice .It is incorrect that opponent No.2 is relative of Feroz Khan.

8. Learned trial Court observed that burden of proving of issue that respondent No.1 has parted with possession is on the opponents. Its findings are in the following words:- "The burden to prove this issue lies upon the opponents. From the perusal of record it reveals that the notice of Court was received by the opponent No.3 himself on the premises in question, but the Opponent No.3 took the pleas that he is nephew of opponent No.1 and is residing in Punjabi Club, Bhori Road, Karachi. During the cross-examination opponent No.1 stated that it is correct that an F.I.R. has been lodged against me for that in Yousuf Naz, Advocate's 'office, it is not only against me but also against Chai Wala and others. From the perusal of cross-examination of opponent No.3 it is further revealed that opponent No.3 during the cross-examination stated that when I make my I.D. Card, Passport Licence, I was living in Punjab Club, I have not filed any document showing that I am still living in Punjaby Club. He further admitted that I have taken the notice from Bailiff at the premises in question. It is correct that I did not told the bailiff that I do not live here. I am of the opinion that in the light of above admissions there is sufficient material to prove that the opponent No.1 subletted the premises to opponent No.3, firstly the opponent 3 received the notice of this Court on the premises in question from the Bailiff, which is also admitted by the Opponent No.3 during the cross-examination and secondly the Opponent No.3 admittedly failed to prove that he is still living at Punjabi Club, Bhori Road, Karachi and thirdly one F.I.R. was lodged by Yousuf Naz, Advocate for theft against the Opponent No.2 Chai Wall and others. In the light of above sufficient material is available to prove sub-letting, therefore, answer of this issue is in affirmative."

9. Learned Appellate Court has dealt with burden of proof and held that it was upon landlord and has also held that mere visiting by relatives does not constitute parting of possession. As far as question of burden of proof is concerned, once evidence of both sides is recorded, the question of burden of proof loses its shine. It is duty of the Court to evaluate the evidence of two sides and thereafter to decide question on the basis of preponderance of evidence. On that touchstone learned Rent Controller observed that respondent No.5 received notice of rent case on behalf of respondent No.3 at the said premises.

10. Respondent No.5 has been living, it claimed by him, in Punjab Colony since 1974. For that time he was not as able to produce any document to establish that he was living in Punjabi Club. Nor did he produce documents of property nor any rent agreement of the same. Respondent No.3 admitted that his nephew, grandson and his son live with him in the building but stated that they are not his tenants. He stated that respondent No.5 is his nephew and he is living in Punjabi Club. As against this, the only piece of evidence relied upon by tenant is his oral assertions. Question is where does preponderance evidence is lie or rather should lead the Court.

11. Learned counsel for petitioner first of all relied on Tariq Hussain Hashmi's case. In this case record revealed that power of attorney had been given by the appellant in favour of his father-in-law when business in the case premises with tenant had not yet started. Premises was let out to appellant in July, 1988 and therefore, it was held that evidence of attorney of appellant had no force. Person to whom it was allegedly sub-let was not examined. In such circumstances, it was held that sub-letting had been successfully proved. It was also held that handing over possession by opponent to some other person without consent of landlord is sufficient to hold that tenant had violated terms and conditions of tenancy agreement hence he is liable for eviction. In the present case even person to whom he is alleged to have sublet the premises has been examined. In Haji Muhammad Khan's case Maxim "Secundum allegata et probata" was referred and it was held that plaintiffs having relied upon documents in question were 'required to satisfy the Court about correctness and genuineness of the same. In Muhammad Subhan's "case premises was originally let out to a sole proprietor and it was held that original tenant by creating another partnership in the premises shall be deemed to have handed over its possession to partner without consent of landlord and would commit violation of section 15(2)(iii)(a) of the Sindh Rented Premises Ordinance, 1979. This case is clearly not applicable to the facts of present case. Here no partnership is alleged. Contention of tenant is that persons living with him are his relatives and .are not tenants. Therefore, this case is quite distinguishable. In S.M. Younus's case tenant was registered partnership firm. Firm converted itself into a private limited company. It was held that since company is distinct and separate entity such incorporation constitutes subletting/parting with possession. Again it is quite distinguishable. In Minochar N. Kharas's case respondent filed, ejectment application on the ground, inter alia, of subletting. All the applicants claiming to be sub-lessees of tenant were joined as party. Ejectment application was allowed. In written statement sub-letting was admitted but it was submitted that they were inducted. into the property by previous owner and had continued as sub-lessees for a long time. Subletting was held to have been established.

12. On the other hand learned counsel for respondent No.3 relied upon Abdul Salam's case. It was held in that case that residing of relative with him for some time would not constitute subletting. Relevant - part of observation follows as under:-- ".... The respondent in one of her affidavit filed before the Rent Controller in support of her application under Order V, rule 20, C.P.C. had herself admitted that on the relevant date the appellant was in possession of the premises.. This evidence was not accepted by the Rent Controller on the ground that an affidavit in support of the application under Order V, rule 20 is not a, substantive piece of evidence. I am not able to understand the reasoning given by the Rent Controller for discarding the affidavit of the respondent which was filed in the proceedings before him and which the respondent had admitted in the cross-examination as correct. The evidence on record at best shows that some of the relations of the appellant temporarily resided with him in the disputed premises which could not establish a case of complete handing over of the premises by the appellant to some other person or subletting of the premises by the appellant to some other person. I accordingly reverse the finding of the Rent Controller on the issue of subletting and hold that the respondent failed to establish subletting of the premises by the appellant to some other person."

13. In Matloob's case landlord alleged that tenant had transferred the possession of premises in dispute to some other person without consent and permission of landlord and tenant on the other hand categorically denied. Its burden of proof of parting with possession was held to be on landlord. However, landlord in this case had not stated name of alleged sub-lessees whom premises was alleged to have been given by tenant.

14. In the present case names of alleged sub-lessees are specifically stated. One of the alleged sub-lessees is claimed by tenant to be his nephew who claimed that he had been living in Punjabi Club and tenant stated that he has been living there since 1974. This ejectment application was filed in 1998. If nephew had been living in Punjabi Club for 24 years surely he must have been in possession of some documents to establish as to whether and in what capacity he had been living there; whether he was owner or tenant. No such document has been produced by him.

15. When notice of this ejectment application was served it was received by respondent No.5 on behalf of respondent No.3. But might argue that he was just visiting there but would an occasional visitor receive a Court notice on behalf of resident of a place; impossible but highly probable. Preponderance of evidence indicates that petitioner has successfully proved his case. I, therefore, accept this petition in limine, set aside the impugned order and direct the respondents Nos.3 to 5 to hand over the vacant peaceful possession of tenement to petitioner within 90 days of passing of this judgment. H.B.T./M-203/K Petition accepted.