2009 PLP 1241 (CLC)

MEHTA KAILASH NATH KOHLI, J.

This appeal is directed against order of eviction dated 5th March, 2007, passed by learned Civil Judge-II/Rent Controller Quetta in Eviction Application No.14 of 2005, whereby; application of respondent No.1 was accepted and; appellants and respondent No.2 were directed to vacate the premises. Facts of the case, in brief, are that an eviction application was filed by respondent Haji Nasr-ud-Din in the Court of Civil Judge/Rent Controller, Quetta stating therein that he is owner and landlord of shop bearing No.5 situated at Gwalmandi Sirki Road, Quetta, which was rented out to appellant No.1 Wali Muhammad some twenty years ago at a monthly rental of Rs.300, in this regard oral agreement was made between the parties. It was further stated that appellant No.2 Amanullah also started working with appellant No.1 as labourer, however; rent of the premises was used to be paid by appellant No.2 and on enquiry, he always replied that appellant No.1 was not in city. It has been stated that about two years ago respondent-landlord came to know that appellant No. 1 had sublet the said shop to appellant No.2 without seeking any permission or bringing to the knowledge of respondent-landlord, however; the shop-in-question remained in occupation of appellants, while rent of the shop was also enhanced to Rs.600 per month, which was being paid by appellant No.2. It was case of respondent-landlord that few months ago, appellant No.2 had further sublet the shop to respondent No.2 Muhammad Anwar at monthly rental of Rs.3,600, while an amount of Rs.600 per month was being paid to the respondent-landlord. It was stated that appellants-tenants were time and again approached for handing over vacant possession of the shop, which is required for personal bona fide use and occupation of landlord's son. Rejoinder to the application was filed by appellants, wherein objections with regard to maintainability of the application were raised. On merits also the claim of respondent-landlord was refuted. It was stated that appellant No.1 had obtained the shop in question on Pagri and thereafter inducted appellant No.2 as tenant in the same with the consent of respondent-landlord. It has been stated that appellant No.2 had made payment of Rs.50,000 to appellant No.1 and Rs.20,000 to the respondent-landlord. It has further been stated that respondent No.2 was working as labourer with appellant No.2 in the said shop. The plea of personal bona fide use and occupation of respondent-landlord has been denied. Out of pleadings of parties, following issues were framed:-- (1) Whether respondent No.1 subletted the shop in question to respondent No.2, later on respondent No.2 subletted the shop to respondent No.3? (2) Whether the applicant required the shop for his own bona fide use and occupation? (3) Relief? In support of his case, respondent-landlord produced A.W.1 Jan Muhammad, A.W.2 Nizamuddin and Noor-ud-Din got recorded his statement as attorney of respondent-landlord, having produced power of attorney Exh.A/1 and rent receipts Exhs.A/2 to A/8. In rebuttal, appellants produced R. W.1 Abdul Razzaque, R. W.2 Muhammad Anwar (respondent No.2); Haji Amanullah (appellant No.2) appeared for himself as well as, attorney of appellant No.1 Wali Muhammad and had recorded his statement. On conclusion of trial, learned Civil Judge-II/Rent Controller, Quetta, vide order dated 5th March, 2007 directed eviction of appellants from the disputed shop. Against afore-mentioned order of eviction, present appeal has been filed before this Court. Mr. M. Zafar Advocate appeared on behalf of appellants, while Mr. Noor-ud-Din Advocate appeared on behalf of respondent-landlord. Mr. M. Zafar, learned counsel for appellants has stated that the learned trial Court has erred in holding that the premises-in-dispute are reasonably and in good faith required by respondent-landlord for personal use and occupation of his son. It was submitted that respondent-landlord is owner of seven shops, out of which, two shops are lying vacant. He further contended that the landlord has failed to show that the shop in dispute, which is adjacent to the said shops in the presence of occupation of two shops, how the requirement is bona fide. It was also contended that that the question of subletting has also not been decided on proper appraisal of evidence. It is the case of appellant that premises were given on rent to appellant No. 1 and thereafter with the consent of respondent-landlord, appellant No.2 started making payment of the rent. Similarly, respondent No.2 Muhammad Anwar was employed as employee, who has come forward and made a categorical statement that he is an employee in the shop. On the other hand, Mr. Noor-ud-Din, Advocate appearing for respondent-landlord has contended that the premises are required reasonably in good faith for personal need of son of respondent-landlord, while the appellant No.1 has sublet the premises to appellant No.2 and thereafter, he has further sublet the same to respondent No.2 Muhammad Anwar and is receiving rent of Rs.3,600 per month. I have considered the arguments advanced by learned counsel for the parties and perused the record with their assistance. The case set up in the eviction application is that the premises are reasonably and in good faith required by the respondent-landlord for use and occupation of his son namely Nazam-ud-Din. It is further stated that the premises were leased out at monthly rental of Rs.300 to appellant No.1 Wali Muhammad, who has further sublet the same to appellant No.2 Amanullah, and now the appellant No.2 has sublet the premises to respondent No.2 Muhammad Anwar on monthly rental of Rs.3,

600. To substantiate the claim, respondent-landlord had produced A.W.1 Jan Muhammad, who has admitted that the respondent No.1 is owner of four more shops apart from the disputed shop. He has also admitted that the rent was paid by appellant No.2 to him. A.W.2 Nizam-ud-Din stated that the disputed shop is required for his .personal use and occupation. In cross-examination, he has admitted the suggestion that the appellant No.2 Amanullah is making payment of rent at the rate of Rs.600 per month. He has further admitted in cross-examination that there are seven shops belonging to them, while Shops Nos.3 and 7 are lying closed. He has also admitted that they are also having one timber depot adjacent to police station, where parking is made in the evening. Statement of Noor- ud-Din was recorded on behalf of landlord, who has reiterated that facts stated in the application and admitted that the rent was received from appellant Wali Muhammad by A.W.1 Jan Muhammad, who was employed by landlord. He has also attempted to produce the receipts, which were being issued relating to the shop in the name of Wali Muhammad. Appellants in order to rebut the case produced R. W.1 Abdul Razzaque, R. W.2 Muhammad Anwar (respondent No.2), and appellant Haji Amanullah appeared as attorney of appellant Wali Muhammad having stated that the rent was being received by A.W-Jan Muhammad, as well as, respondent-landlord from appellant No.2. Landlord had wanted to enhance the rent and offer was made that he is prepared to pay rent to the tune of Rs.2,000 per month, while the landlord demanded eight/nine thousand per month. The contention of tenant was that the premises are not required for personal use and occupation. On going through the evidence, the first question of personal requirement of son of the landlord-respondent; the statement of A.W.2 Nizam-ud-Din who is star witness clearly shows that there are total seven shops while two shops are lying vacant/closed. No explanation was offered by the landlord that while being in possession of two shops, the premises-in-dispute are further required for personal use and occupation, and thus; the findings recorded by the trial Court are not found to be recorded on proper appreciation of law. The requirement of law is that at the time of filing of application, the landlord is not in occupation of any other suitable premises in the same urban area. The shop-in-dispute is adjacent to the other shops and two of the shops are in possession of landlord, which fact has been admitted by A.W.2 Nizam-ud-Din i.e. son of landlord, and thus; the ground urged for personal requirement has not been proved. The second question for consideration is that as to whether the premises were sublet by the appellant No. 1 to appellant No.2; the evidence has come on record through A.W.1 and 2 namely Jan Muhammad and Nizam-ud-Din that the rent was being paid by the appellant No.2 Amanullah at the rate of Rs.600 per month, which fact has not been denied. Learned counsel for the appellants contended that the attornment of the tenancy has been made, as such; the question of subletting from G appellant No.1 to appellant No.2 does not arise. The word `attornment' has been defined in the Shorter Oxford English Dictionary on Historical Principles, Third Edition, Volume-1 as "legal acknowledgement of the new landlord". Blacks Law Dictionary Fifth Edition defines `attornment' in the following words:

"Attornment is the act of a person who holds a leasehold interest in land, or estate for life or years, by which he agrees to become the tenant of a stranger who has acquired the fee in the land, or the remainder or reversion, or the right to the rent or services by which the tenant holds. It is an act by which a tenant acknowledges his obligation to a new landlord." The Honourable Supreme Court of Pakistan in the case of Mehraj Din v. Muhammad Ismail 1980 SCMR 764 has been pleased to hold that once rent is accepted then the relationship of landlord and tenant is established; relevant portion of the said judgment is reproduced herein-below:-- "These objections have been fully dealt with by the learned Judge in the High Court. As for the objection that the original money orders were not placed on the record, it was observed that there was a note appended to the statement of Ghulam Nabi, Postman P.W.3, which showed that the original money orders were produced before the Rent Controller when his evidence was recorded but after the conclusion of his statement they were returned to Muhammad Siddiq, P.W.3, a clerk of the Postal Department, who had brought the record from Lahore Office. Therefore, no exception could be taken to the admissibility of the Exhs.A/1 to A/4. As for the plea that the marginal witnesses had not been produced, it was pointed out that F.W.3 when cross-examined had stated that he personally knew the respondent as he remained posted in the area concerned for 28 years. No suggestion was made to him that the money orders in question had been manoeurved and he had made incorrect reports on Exhs.A/1 to A/4. It was also not suggested to him that he was in collusion with the respondent. Moreover, the attesting witnesses, if not examined by the respondent, could have been examined by the petitioner but he had failed to do so. In these circumstances, we are not persuaded to differ with the finding of the High Court that the petitioner had remitted rent for the premises in dispute to the respondent and that as such he was his tenant, within the meaning of clause (i) of section 2 of the Urban Rent Restriction Ordinance." The other factor, which is very important in the case in hand is with regard to waiver of the claim. From the record, it is the case of respondent-landlord that about two years ago, he came to know about the factum of subletting; though, there is evidence on record that the premises were leased out twenty years back and the possession of the same was handed over after few months of the creation of tenancy. The case of respondent No.1 is that about two years back he came to know about subletting and still kept on receiving the rent. In the case of Rais Illahi Bux and another v. Inamullah 1991 CLC Note 46 at P.33 Karachi, his Lordship was pleased to hold in the following terms:

" .Mr. Rashid A. Rizvi relied upon Civil Law Cases 1980 page 664 Karachi Part I where Mr. Justice Zafar Hussain Mirza held that a landlord having failed to file ejectment proceedings against the tenant in respect of subletting for a period of 15 months was deemed to have waived the subletting. A Division Bench of Peshawar High Court in the case of Amjad Ali v. Haji Said Wahab and 3 others 2003 YLR 1084 (Peshawar), has observed in the following terms:

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The determination of the question regarding subletting with permission of the landlord or otherwise, would depend upon the facts, circumstances and conduct of the parties in each case. In the present case, long silence on the part of the landlord clearly tends to suggest that the entire affair was in his knowledge but he raised no objection for reasons not far to seek. It is hard to believe that a house is vacated and another person is inducted as sub-tenant by the original tenants but the landlord remains ignorant about it and raises no objection. The third question relevant for the purposes of subletting by appellant No.2 to respondent No.2 Muhammad Anwar; categorical stand was taken that he (Muhammad Anwar) was employed in the shop as labourer for the purposes of cleaning and butchering the poultry products for which, statement of appellant Amanullah coupled with statement of respondent Muhammad Anwar, alleged sublettee, are sufficient to prove the said version, and thus; the conclusion that the premises have further been subletted to the said respondent are without any basis. There is no direct evidence that appellant No.2 is receiving rent from respondent No.2 at the rate of Rs.3,600 per month. Thus, the findings. recorded by the trial Court in this regard are also not correct and proper and are based on misreading of record. For the foregoing reasons, the impugned order of eviction passed by the trial Court is directed to be set aside. The appeal is allowed and the eviction application is dismissed with no order as to costs. M.Y./14/Q Appeal allowed.