1993 PLP 406 (MLD)

The respondent had filed Rent Case No.1665/1987 against the appellant for eviction under section. 15 of Sindh Rented Premises Ordinance, 1979 in respect of premises No. 56, situated on Plot No.RC/V.II/2, on the ground of default in payment of rent and subletting. The learned Rent Controller ordered eviction on the ground of sub setting. The issue of default was decided in favour of the appellant. The respondent in his application had alleged that the appellant had without his consent parted with the possession of the aforesaid premises and handed over the same to Majeed Majoo and Abdul Rahim. The respondent in his written statement took up the stand that he had not parted with the possession of the premises and had not handed over the same to anyone including Majeed Majoo or Abdul Rahim or any other sub‑tenant. The respondent's attorney, Abdul Samad s/o Haji Muhammad filed his affidavit in evidence wherein he made the same assertions with regard to subletting. In cross‑examination it was suggested that said Majeed Majoo and Abdul Rahim were residing in flat No.64 which suggestion was denied by the witness. It was admitted that Abdul Rahim was brother of the aforesaid Abdul Razak and Abdul Majeed. The respondent did not enter into the witness‑box However his son Mushtaque Ali had filed his affidavit‑in‑evidence and so also of Majeed Majoo. In the affidavit‑in‑evidence it was stated by Mushtaque Ali that Abdul Razak was the husband of his sister and was living with the appellant in the said premises since last 20 years. It was denied that the said premises was sublet or that the appellant had parted with the possession of the same. It was further stated that Abdul Majeed and Abdul Rehman being real brothers of Abdul Razak, come to visit him and his wife. In cross‑examination, it was denied by the, said witness that Abdul Razak was residing in the premises permanently, and the appellant had handed over the possession of the said premises to him. This witness deposed in the affidavit that the appellant was bed‑ridden due to attack of paralysis and being an old man of 84 years was unable to speak or to attend the Court. Abdul Majeed, the witness of the appellant, stated that his father was tenant of flat No.64 and after his death he and his brothers continued to reside in the said premises. He denied that the appellant had sublet the premises in dispute either to trim or to his brother Abdul Rahim. He further denied that flat No.55 was sublet to Abdul Razzak. In cross -examination he denied the suggestion that he and his brother Abdul Razzak are residing permanently in the disputed premises or that the possession thereof has been handed over to them. The learned Advocate for the appellant has contended that Abdul Razzak is son‑in‑law of the appellant and is residing with him since last 2(1 years and no one took any exception to his residing with the appellant. It is further contended by him that the respondent in his application had not specifically pleaded that the premises was sublet to Abdul Razzak and on the contrary it was alleged that it was sublet to Abdul Majeed Majoo and Abdul Rehman. According to the learned counsel under these circumstances the appellant cannot be evicted on the basis of allegation of subletting to Abdul Razzak. He urged that Abdul Majeed and Abdul Rehman who are brothers of Abdul Razzak are residing in separate premises in the same building. The learned Advocate for the respondent has contended that the appellant in his written statement has denied the allegation made by the respondent that the appellant had parted with the possession of the premises in question or that Abdul Majeed Majoo and Abdul Rehman were the sub tenants, but it was not disclosed in the written statement that Abdul Razzak was residing in the premises in dispute, or that the said Abdul Razzak was son in‑law of the appellant. They developed their case subsequently, at the stage when the affidavit‑in‑evidence was filed wherein it was disclosed that Abdul Majeed and Abdul Rehman are brothers of Abdul Razzak and the latter is residing in the premises in dispute alongwith the appellant. It. is obvious from the pleadings that the respondent had specifically alleged Abdul Majeed Majoo and Abdul Rehman to be the sub‑tenants and it was specifically alleged that the respondent had parted with the possession of the premises in dispute. The plea of the appellant that Abdul Razzak was residing with him as his Ghardamad was developed only at the stage of evidence. No such plea was taken in the written statement in spite of the fact that the appellant had specifically denied that he had parted with the possession of the premises and handed over the same to the aforesaid Abdul Majeed and Abdul Rehman. No suggestion was made even in the cross‑examination of the, attorney of the respondent that Abudl Razzak was residing in the premises in question being son‑'n‑law of the appellant. On the contrary, it was suggested in behalf of the appellant in the cross‑examination of !be aforesaid witness of the respondent that the sons of the deceased Luqman, namely, Abdul Razzak and Abdul Majeed were residing in falt No.64. Mushtaq Ali Darvesh, the son of the appellant in his cross‑examination admitted that Abdul Razzak was residing permanently in the disputed premises and that the appellant had handed over the possession of the premises to him. This disclosure in the cross‑examination destroys the defence taken up by the appellant that the said Abdul Razzak was residing with the family of the appellant and that the appellant had not parted with the possession of the premises in dispute. Abdul Majeed did not support the version of the appellant that Abdul Razzak was residing with the appellant. Instead of referring to the premises in dispute which bears flat No.56, this witness stated that the appellant had not sublet flat No.55 to Abdul Razzak. This witness stated. that he was residing in flat No.64 alongwith his other brothers since his birth. The inference therefore would be that the said Abdul Razzak is also residing in flat No.64 and such inference is in consonance with the suggestion put to the attorney of the respondent in his cross‑examination. This destroys the entire fabric of the defence developed subsequently that Abdul Razzak is residing as Ghardamad with. the appellant. The plea of the respondent that the premises was sublet to Abdul Majeed and Abdul Rahim has not been shaken. It appears that the respondent having found it difficult to rebut the subletting came up with the plea that Abdul Razzak is residing with him since last 20 years and the aforesaid Abdul Majeed and Abdul Rahim being his brothers come to visit them. But such plea was not established and rather has become unacceptable in view of the inconsistent stand taken by the appellant and his witnesses. The fact that the said Abdul was not examined assumes importance in the context of this case. The submission of the learned counsel of the appellant that subletting to Abdul Razzak cannot be made a ground for eviction as it was not taken in the application Is of no substance. It was the plea taken by the appellant and not by the respondent. The above factor is relevant only to the extent that the appellant has not taken any such plea in his written statement and inconsistently had raised this plea for the first time at the stage of evidence. It was also alleged that the said Abdul Razzak was living with the appellant and that the appellant had not parted with the possession of the premises. But in the cross‑examination it was admitted by the son of the appellant that the appellant had handed over the possession of the premises in question to Abdul Itazzak. It has been consistently the plea of the respondent that the premises in` question was sublet to Abdul Majeed, and Abdul Rehman and such suggestion was made to the son of the appc1tant even in his cross‑examination. This plea is therefore to be accepted as having been established. As against the above, the appellant and his witness have been taking inconsistent pleas and such inconsistencies are sufficient to belie their defence and the same is to be discarded. The cumulative effect of the evidence is that the appellant had parted with the possession of the premises in dispute. I, therefore, find no reason to interfere with the impugned order. Consequently, the appeal is dismissed with no order as to costs. By consent the appellant is granted four months time to hand over the possession of the premises to the respondent subject to payment of rent and in of execution H.B.T./A-1227/K Appeal dismissed.