1999 PLP 1090 (CLC)

evidence. He denied that false case has been filed against the appellant and respondent No.2. Muhammad Abbas the other witness of respondent No.1 was cross examined on 20‑2‑1990 by the learned Advocate for the appellant as well as by the learned Advocate for respondent No.2. In his cross‑examination to the learned Advocates the said witness stated that he is serving the respondent No. l since 1974 and presently he is Head Security Guard and in order to give evidence he has the Authority letter from the respondent No. l and such letter has been issued to him by the Manager Real Estate of respondent No. I but such letter has not been produced. He stated that after having inspected the case premises in December, 1986 and on 9‑2‑1987 he wrote a report, dated 11‑2‑1987, which is on record as Annexure "A‑1". He also stated that he had taken with him a photographer, whose name he does not know, to make photographs filed with his affidavit‑in‑evidence, but he stated that there are other tenants also in the said building of respondent No.1 but he does not personally know the tenants. He admitted that the respondent No.2 is doing its business in another place close to the said building of respondent No. I but voluntarily stated that the respondent No.2 is doing business in the case premises as well. He stated that there is a Chowkidar posted in the said building of respondent No. l but he did not make any report of sub‑letting of the case premises by appellant to the respondent No.2. Appellant's witness Amir Ali K. Hirani was cross‑examined by the learned Advocate for respondent No. l on 19‑8‑1991, when he deposed that appellant Company has various sister concerns but no list of such concerns has been produced. He admitted that respondent No.2 is not sister concern of appellant. He denied that in December, 1986 the appellant sub‑let the case premises to respondent No.2 and that the said photographs produced in the matter by one Muhammad Abbas, Head Security Guard of respondent No. l , are false and manipulated. He admitted the exchange of Exhs.5/2, 5/3, 5/4 and 5/5 between the parties. Exh.5/2 is a notice, dated 12‑3‑1984 issued on behalf of respondent No. l to the Director of appellant with regard to re‑construction of Buildings Nos.5‑A and 5‑B, Saddar, Karachi which include the case building. Exh. 5/3 is the reply dated 24‑4‑1984 by the appellant to the Manager Real Estate of respondent No. 1, wherein the demand has been made for the supply of copy of the plan of proposed building to be constructed on the site of the case premises and enquiry as to how the tenants would be rehabilitated during the construction of proposed building and as to what compensation would be paid to the tenants for dislocation of their business during such period. Exh.5/4 is a letter, dated 29‑4‑1987 addressed on behalf of the respondent No.l to the Director of appellant, wherein it has been stated that lease period of the case premises has expired and further that the appellant has sub‑let the case premises to respondent No.2 without the consent and written approvals of respondent No. 1, therefore, the appellant should vacate the case premises and deliver its possession to respondent No.l within thirty days of the said notice. Exh.5/5 is the reply, dated 18‑6‑1987 by the appellant to respondent No.l, denying the allegations of expiry of lease and sub‑letting. In support of contentions of respondent No.2 its partner, Mr. Salim Essa, had filed his affidavit‑in‑evidence reiterating the statements made in the written statement and during his cross‑examination, he denied that in December, 1986 Sign Board of his Company was displayed at the premises in question or that the security guard of respondent No.l had approached him or his staff to ask as to under what capacity respondent No.2 was occupying the case premises. As to the photographs he denied that they pertain to his shop/business. The learned Controller framed following issues in the matter:‑ (1) Whether the opponent No.l has sub‑let the premises in question to the opponent No.2? (2) What should the order be? ?he Issue No. l has been answered in affirmative and in answer to Issue No.2 the eviction application has been allowed and the appellant directed to hand over peaceful possession of the case premises to respondent No.

1. I have carefully perused the evidence, documentary as well as oral, of the parties and find that Exh.5/2, letter, dated 12‑3‑1984 addressed on behalf of respondent No.l to Director of appellant, recites that the building and'the premises in question is in a dilapidated dangerous condition and, thus, has become unfit for human habitation, therefore, the respondent No.l intends to construct a most modern commercial complex after demolition of the present structure and such plans have been submitted to the concerned authority for approval. This letter further recites that the respondent No.l will provide a shop/godown to the appellant in the new complex according to his choice subject to fixation of fresh quantum of rent. This Exhibit was replied by the appellant vide Exh.5/3, dated 24‑4‑1984 denying that the building is in a dilapidated and dangerous condition, however, a demand was made for the supply of a copy of the proposed plan and enquiring about alternate measures for compensating the tenants for the dislocation of their business during the interim period, but apparently Exh.5/3 was not replied by the respondent No.l. Again vide Exh.5/4, letter, dated 29‑4‑1987 addressed on behalf of respondent No.l the Director of appellant was informed that since the lease period of the case premises has expired and it has unauthorisedly been sublet to Messrs London Watch Company, therefore, the appellant was required to vacate and hand over possession of case premises to respondent No. l within thirty (30) days from the date of said notice. This letter was replied by the appellant vide Exh.5/5, dated 18‑6‑1987 denying the allegations of expiry of lease and sub‑letting. Again there is nothing to show that the respondent No. l replied Exh.5/5 or not. It is strange that though in the two photographs produced by the witness, Muhammad Abbas, the name/sign board of London Watch Company and the word "Seiko" appear to have been painted/pasted on wall and some of the steps of the staircase have been produced and those photographs are said to have been taken through a photographer whose name the said witness does not know and the photographer has neither been produced in the matter nor any receipt of payment issued by him has been placed on record. Such photographs do not either depict the place/building in question or the case premises. The record of this appeal reveals that on 27‑5‑1997 this appeal was heard by another Honourable Judge of this Court, when an order was passed that in view of the fact that only issue in this case pertains to sub‑letting and the appellant maintained that they are still in possession and that they neither let out the premises nor London Watch Company was in possession thereof, therefore, in order to resolve the issue by consent of the parties Mr. A.A. Dareshani, Advocate, was appointed as Commissioner to inspect the site and make enquiry, whether London Watch Company carried on business in the premises at any time. Since Mr. A.A. Darashani, Advocate, expressed his inability to act as Commissioner in the matter, therefore, order, dated 11‑11‑1997 was passed appointing Mr. A., Ghafoor Shaikh, Advocate as Commissioner to inspect the site and make enquiry, whether London Watch Company carries on business in the premises at the moment. In compliance with the said order, dated 11‑11‑1997, the Commissioner submitted his report, dated 27‑11‑1997, he alone visited the premises to see its position and found that the first floor was all dark and the staircase leading to premises was unclean as it was not in use. Two persons informed him that the flat is closed and no business is done therein. Again on 26‑11‑1997 he went to the premises alongwith learned Advocates of the parties and one Pir Khan Sajid, Manager of respondent No. 1, and found the first floor in absolutely bad condition and one person sitting in the room with a chair and table, apparently placed in the room on the same day. The other portion of the flat was full of debris and there was no sign to suggest that any business could be carried on in the flat. At the entrance of the flat two boards, one in English and the other in Urdu, were fixed carrying the name of Sasi Ltd. The other tenament was in compound and at the back of main building. No business was carried in that flat also and it was lying locked since some time. The Commissioner in his report further submitted that it was evident that at the moment no business is carried by London Watch Company in both the premises in question. On behalf of respondent No. l objection to the Commissioner's Report were filed on 20‑4‑1998, wherein it has been submitted that the case was filed in 1988 on the ground of sub‑letting but the inspection took place in November, 1997 and the Commissioner's report has been prepared on the basis of the present condition of the tenament and the said report does not provide any material for adjudication of the case in respect of sub‑tenancy in 1988, therefore, the report of the Commissioner be ignored and the case be decided on the basis of its record. Such objection to my mind, in view of the consent order for appointment of a Commissioner to make enquiry, whether Messrs London Watch Company carried on business in the case premises at the moment, is not tenable. It is well‑settled by now that where sub‑letting of rented premises is alleged by landlord, initial onus to prove that tenant had handed over possession of premises to some other person would lie on landlord and not on p tenant. It is also well‑established that a landlord alleging sub‑letting accepting rent from tenant without protest since long the allegation of sub‑letting is not proved. In the instant case it has been admitted by Mr. Azam Ali, witness of respondent No.l that till the date of his cross‑examination (24‑3‑1990) the appellant has been paying the rent to the respondent No.

1. Mr. Muhammad Abbas another witness of respondent No.l in his cross‑examination has admitted that respondent No.2 is doing business in another place near to the case premises. Another aspect of the case is that rent case giving rise to the present appeal was filed by Mr. M. Jafar Hussain Sidiqui, an officer of respondent No. l on the basis of a General Power of Attorney,‑ dated 21‑7‑1986 granted to him by Mr. Nazir Ahmad Jajvi another Attorney and Executive Director of respondent No. l; but the power of attorney granted by respondent No. l to the said Executive Director has not been filed. In support of the case neither Mr. M. Jafer Hussain Sidiqui, who signed and verified the rent case nor the Manager Real Estate Department of respondent No. 1, who issued Exhs.5/2 and 5/4 to the appellant, appeared to depose in the matter and instead one Mr. Azam Ali, claiming to be an employee of respondent No. 1, on the basis of memorandum of authority issued by, the Executive Director, Real Estate, Investment and Law of respondent No. 1, .had appeared who, as is evident from his cross‑examination recorded in the matter, appears to be ignorant of material facts of the case and as such it had been argued by the leaned Advocate for the appellant that since the person holding valid General Power of Attorney from respondent No. l has not 8 been examined in the matter, therefore, no lawful evidence in support of the case of the respondent No. l has been adduced except its pleadings which cannot take place of evidence. In support of his such submission, the learned Advocate of appellant has placed reliance on the case of Messrs Adil Brother (Private) Limited v. Pakistan National Shipping Corporation, reported as 1995 CLC 1652. The learned Advocate for the appellant with regard to sub‑letting has submitted that the burden of this issue was on respondent No. l who in its pleadings and the deposition of its witnesses has failed to show that out of the two tenaments (ground floor and first floor) which premises/tenament has been sub‑let by the appellant to the respondent No.2 and what amount of rent is being realised by the appellant from the alleged sub‑tenant and as such the alleged sub letting has not been proved. In this behalf the learned Advocate for the appellant has placed reliance on the case of Dost Muhammad v. Mst. Ramzan Bibi and 9 others, reported as 1990 MLD 1667. The leaned Advocate for the respondent No. l though vehemently argued his case; but did not meet the contentions raised and the citations made by the learned Advocate for the appellant. The leaned Advocate for the respondent No. l submitted that since it is a case of fact and not of law, therefore, no reported judgment on the point is available. After perusing the pleadings, evidence of the parties, the impugned judgment and having studied the case‑law cited by the learned Advocate for appellant and for all the foregoing reasons I came to the conclusion that the respondent No. l failed to discharge the burden of proof that the appellant has sub‑let the case premises or any part thereof to the respondent No.2. I am also of the considered view that the learned Controller in the circumstances of the case, erred in allowing the rent case of the respondent No.1 thereby directing the appellant to hand over possession of the case remises to the respondent No.

1. It was for the above reasons that vide short order, dated 30‑4‑1998 had set aside the impugned order, dated 15‑1‑1992 passed by the learned Controller and had allowed this appeal with no order as to costs. Above are my reasons for the short order, dated 30‑4‑1998 Appeal allowed, but with no order as to costs. Q.M.H./M.A.K./S‑183/K Appeal allowed.