1986 PLP 917 (MLD)

1983 C L C 3254; 1980 C L C 1558; 1983 C L C 287 2 and 1982 CLC 1042 ref. Muhammad Yasin Azad for Appellant Khalilur Rehman for Respondent. Date of hearing: 19th February 1984 The respondent filed an ejectment application against the appellant in respect of Shop No.4, situated at SE‑41 Block C, Karachi, which was rented out to him at a monthly rent of Rs.75. The main ground for ejectment was that the appellant had defaulted in payment of rent from 1‑8‑1976 to 30‑11‑1976 and further that the appellant has sublet the shop to Sultan unauthorisedly without written consent or approval of the respondent. The Controller by the impugned order came to the conclusion that the default has not been proved. However, on ground of sublettion the ejectment application was granted. Mr. Muhammad Yaseen Azad the learned counsel for the appellant has contended that the respondent has failed to establish that the shop was sublet to Sultan mainly so as it has not been proved that Sultan is paying rent to the appellant. The appellant in his written statement, as well as in the evidence admitted that Sultan is carrying on business in the shop. It was pleaded that the appellant and his brother were partners in the business. The licence to run a ration shop was in the name of his brother and this business was being carried on in the disputed shop. After the death of the brother Sultan who is the appellant's nephew started sitting in the shop. The learned counsel for the appellant contended that this fact does not constitute subletting because Sultan was not paying any rent to the appellant. From the evidence, it has not been established that the appellant was a partner of the Sultan's father because except a bare statement of the appellant, no evidence has been produced to prove the existence of partnership. At least some document could have been produced to establish this fact. The learned counsel for the appellant has contended that in fact there was no written partnership deed between the parties. However, some account would have been maintained, but not an iota of documentary or even independent oral evidence has been produced to establish the partnership. Mr. Muhammad Yaseen Azad the learned counsel referred to 1983 C L C 3254; 1980 C L C 1558 and 1983 C L C 2872 where it has been held that mere permitting any person to use the premises or parting with the possession without establishing that the tenant is receiving rent will not amount to subletting. In the present case it is admitted that the appellant is not in possession of the shop, He has clearly stated that Sultan is running the shop and the entire income of the shop is being utilised by Sultan. In these circumstances as the possession has been parted, the entire income is being appropriated by Sultan and the appellant has nothing to do with the shop it was necessary for the appellant to rebut the presumption arising from such facts. In this regard Mr. Khalilur Rehman has referred to 1982 C L C 1042. It was open to the appellant to have examined Sultan to testify that he is not paying any rent. The appellant himself has stated that he has not sublet the disputed premises, but it has not been stated categoricall that he is not receiving any rent from Sultan. The entire evidence particularly from the cross‑examination of the appellant, the impression is that he is no more concerned with the shop which is in exclusive possession of Sultan, who is carrying on business and is the proprietor of that business. In these circumstances the only conclusion that can be drawn is that the appellant has sublet the disputed shop. In the result the appeal is dismissed. The appellant is allowed six months time to deliver vacant possession of the shop to the respondent. M.Y.H. Appeal dismissed