1990 PLP 984 (CLC)

(iii) Whether this application is not maintainable being on the same grounds as urged in Rent Case No.22 of 1976 in this Court?

5. The respondent examined 16 witnesses, out of them six witnesses, namely, Saleem Ahmed, Afaque Ahmed, Shamsul Islam, Abdul Lateef, Faizuddin and Abdul Karim, did not offer themselves for cross‑examination and consequently their evidence was expunged. The appellants examined one of them, namely, Syed Muhammad Mushtaque (D.W.‑1), and four others to rebut the evidence adduced by the respondent.

6. On the assessment of evidence, both oral as well as documentary, the learned Additional Controller (Mr. Badar Alam Bachani) decided all the issues against the appellants directing their eviction from the disputed premises. This order dated 2‑3‑1987, is the subject‑matter of this appeal filed under section 24 of the, Cantonment Rent Restriction Act, 1963.

7. I have heard Mr. Muhammad Khudai Ansari, learned counsel for appellants and Mr. Gulzar Ahmed, learned counsel for respondent. I have also gone through the record of the case carefully.

8. Section 17 (2) (ii) (a) of the Cantonment Rent Restriction Act, 1963, empowers the Controller to put the landlord in possession, if he is satisfied: that the tenant has, without the written consent of the landlord,‑‑ transferred his rights under the lease or sublet the premises or any portion there of. Admittedly the disputed premises was rented out to appellant No.1 who has got her own family members. The respondent that filed the ealier ejectment Case No.22 of 1976 against appellant No.l only. There is also no dispute that allegation of sub letting was made by respondent in Ejectment Case No.22 of 1976 also, which was, however, abandoned at .the final stage. The learned counsel for appellants has, therefore, contended that Ejectment Cage No.19 of 1978, out of which this appeal has arisen is barred, under seclion`29 of the Cabtonments Rent Restriction Act, 1963, which provides: "The Controller shall summarily reject any application under subsection (2) or under subsection (4) of section 17, or under section 17‑A which raises substantially the same issues as have been finally decided in. a former proceeding under this Act." The doctrine of res judicata implies satisfaction of several conditions including the following: (i) that the issue has been decided by the Court and (ii) that in both the cases the parties are the same.. Paragraph 4 of the ealier ejectment case relates to the allegation of subletting in the following words:‑ "The opponent has without the written consent of the applicant, (a) transferred her right under the tenancy agreement or sublet the house or a portion of it. It may be noted that there was no specific allegation against appellant No.2 who was not even a party in the ealier case. The Rent Case No.19 of 1878 was filed on 14‑3‑1978 mainly on the ground of subletting. The ealier case was decided on 5‑12‑1978 long after the institution of Case No.19 of 1978, and consequently the allegation of subletting was not pressed in the earlier ejectment case. The issue of subletting was accordingly not decided by the Controller.

9. The second important condition to attract the provisions of section 23 of the Cantonment Rent Restriction Act, 1963, is that the parties in both the cases should be the same. This condition is not satisfied in this case, because in the earlier Case No.22 of 1976, the appellant No.2 was not a party.

10. So far as, I have been discussing the main contention of the appellants untrammelled by any authorities, though there is abundant authority including the high authorities of the Supreme Court for the proposition that in the circumstances mentioned above second application for eviction is not barred. The cases reported as S.M. Hayat v. Commodore (Retd.) Ikram‑ul‑Haq Malik and another (1984 CLC 3176), Suleman Ghazi v. Ghulam Haider and another (1983 SCMR 1058), and Ch, Fayyaz Akbar v. Messrs Defte House Ltd. (P L D 1988 SC 76) are relevant on this point. Section 23 of the Cantonment Rent Restriction Act, 1963, was examined in the last cited authority of the Supreme Court, which lends support to the plea raised on behalf of respondent. The present case out of which this appeal has arisen is, therefore, not hit by principles of res judicata embodied in section 23 of the Cantonment Rent Restriction Act, 1963.

11. Admittedly appellant No.2, who is not the tenant of respondent is residing in the disputed premises. No doubt the onus of proof of sub‑letting lies upon the respondent, but there is essential distinction between burden of proof B and onus of proof. The burden never shifts, but the onus of proof shifts having regard to the circumstances of a case. As observed in Masroor Hasan and another v. Abbas Ali Khan, reported in 1981 CLC 669, once the landlord proves that somebody else was using rented premises either exclusively or jointly with tenant, onus of proof shifts on tenant to explain relationship between him and user of tenement. The appellant No.2, at his own showing is sister's son of appellant No.l, who is the original tenant of the disputed premises and he does not come within the definition of 'family' as defined by section 2 (e) of the Cantonments Rent Restriction Act, 1963, in the following words:‑ " `family' of a person means and includes a husband, wife, children, dependent parents, dependent brothers, unmarried or widowed sisters and deceased son's widow and children residing with and wholly dependent upon, that person."

12. The appellants have failed to discharge the onus which lay heavily upon them. The mere fact that appellant No.2 is presently occupying the disputed premises with appellant No.1 is not sufficient to prove that the respondent had acquiesced to this position. The evidence adduced by appellant No.2 and his witnesses on this issue appears to be vague and sketchy. The appellant No.2 does not deny that he resides in the disputed premises with one of his two wives and children. The appellant No.l has, however, not stepped in the witness‑box to support his version. As against this evidence the respondents has produced ten witnesses who have supported the plea of subletting. Mrs. Wazir Ali (P.W. 8) resides adjacent to house of appellant No.1 situated in New Basti she is completely an independent witness and has given an account which is untarnished by exaggeration and which finds support from surrounding circumstances. Mrs. Wazir Ali (P.W. 8) testified as follows: "I know the opponent No.1 and sons and her family because they are my neighours and we have a common wall. The opponent No.1 is living in Nai Basti with her two sons and one daughter and they have built a new house. I do not know where the opponent No.1 and her family were living before shifting in this house."

13. Muhammad Abdullah (P.W. 1), Muhammad Yousuf (P.W. 2), Jamil Ahmad (P.W. 6), Muhammad Akram Khan (P.W. 7), Iqbal Fareed (P.W. 9), Muhammad Mufeed Khan (P.W. 10), Aslam Fayyazi (P.W. 3), Atiqur Rehman (P.W. 4) and Ferozuddin (P.W. 5) have also supported the version of respondent in respect of subletting of the disputed premises. They stood the test of cross‑ examination and were believed by the Controller who had the occasion to see, their demeanour. During the cross‑examination it was suggested on behalf of appellants that the premises situated in Nai Basti in fact belongs to Mst. Shakeela Begum, daughter of appellant No.l, where she resides with her husband. The appellants have, however, failed to examine Mst. Shakeela Begum to lend support to this suggestion.

14. The learned counsel for the concerned parties have referred to a number of authorities to support their respective stand, but I do not find it necessary to discuss these authorities, because it is a question of fact in each particular case, whether the evidence produced by the parties can or cannot be considered to be sufficient to establish a particular issue. Subletting has to be inferred from the attending circumstances of the case. The test is whether exclusive possession of the building or part thereof has passed from the tenant to some other person, without the permission of the landlord, and if the answer is yes, there will be subletting. .

15. On overall appraisement of the entire evidence in the case and on considering all the surrounding circumstances, I am of the view that the respondent has successfully proved issue of subletting. The appeal has got no merits and is accordingly dismissed with no order as to costs. Two months' time is, however, allowed to appellants to vacate the demised premises.

16. Before I part with this judgment, I would like to say something about the quality of impugned order. While, however, there is virtue in brevity, the point should not be carried too far. The aim of the Presiding Officer exercising judicial powers undoubtedly should be to say everything that requires to be said concisely or precisely, but even this should not be at the cost of a full and fair discussion of all questions of fact and law involved in the decision of a case. Brevity should not tend to obscurity. H.B.T./A‑757/K Appeal dismissed.