1999 PLP 1926 (CLC)

In support of her case the respondent filed her own, affidavit‑in‑evidence and was cross‑examined by the learned Advocate for the appellants. The attorney and brother‑in‑law of appellant filed his affidavit‑in‑evidence and appellant No.2 filed his own affidavit‑in‑evidence and both of them were cross‑examined by the learned Advocate for respondent. After hearing the learned Advocates for the parties and taking into consideration the evidence and documents brought on record, the learned Additional Controller of Rent decided Issue No. l in negative i.e. in favour of appellants and against the respondent. Issue No.2 was decided in affirmative i.e. in favour of respondent and against the appellants. The impugned eviction order was passed directing the appellants to vacate and hand over peaceful possession of the demised shop to the respondent within sixty (60) days of the passing of impugned order. It is pertinent to mention that the respondent did not file any appeal against the decision on issue No. 1, which was decided against her. Thus, she acquiesced and conceded that the alleged self‑use requirement of her son was not bona fide. The above appeal has been filed by both the appellants and the affidavit in support of application under section 24(2) of the Cantonment Rent Restriction Act, 1963, (hereinafter for the sake of brevity referred to as the Act of 1963) was sworn and filed by the appellant No. l personally. On 1‑3‑1995 the appellant No. l filed in the matter an application under section 24(3) of Act of 1963 which application is numbered as C.M.A. No.288 of 1995, which is supported by the personal affidavit of appellant No.

1. It since not be out of place to mention here that during the pendency of the above First Rent Appeal and appellant No. l expired at Karachi and an application under Order 22, Rule 3, C.P.C. was filed for bringing his three legal representatives on record, as parties to the appeal in place of deceased appellant No. l The said application under Order

22. Rule 3, C.P.C. was allowed by this Court vide order, dated 11‑1‑1996 and amended title of memo. of appeal showing names of three legal representatives of appellant No. l were filed in the matter. I have heard the learned Advocates of the parties on the merits of the appeal. The learned Advocate for the appellants has laid great stress on the language of subsection (2)(ii)(a) of section 17 of the Act of 1963, which reads as under:‑‑ "(2) A landlord who seeks to evict his tenant shall apply to the Controller for an order in that behalf, and the Controller may after giving the tenant a reasonable opportunity of showing cause against the application, make an order directing the tenant to put the landlord in possession, if he is satisfied that‑‑ (ii) the tenant has, without the written consent of the landlord (a) transferred his right under the lease or sublet the building or any portion thereof, or" It is contended that except the words of respondent, as contained in paragraph No.3 of her eviction application as well as affidavit‑in‑evidence filed in the matter nothing has been proved except alleging that "now it has come to the knowledge of the appellant (respondent) that the opponent No.l (appellant No. I) has sub‑let the aforesaid shop to opponent No.2 (appellant No.2) without the prior permission or consent of the landlady i.e. applicant (respondent) which is violative of section 17(2)(ii)(a) of the Rent Restriction Act, 1963". It has further been submitted that the said allegation is vague and without any substance. He . further, submitted that the initial burden/onus of proving the alleged sub‑letting was on the respondent which she has failed to discharge. He further, submitted that appellant No.l, prior to the institution of eviction proceedings by the respondent had started depositing monthly rent of the demised shop in the office of the Additional Controller of Rents, Clifton Cantonment, Karachi, which amounts are being received/withdrawn by the respondent and such fact is admitted by the learned Advocate for respondent. It is also urged on behalf of appellants that there is no specific evidence in support of plea of sub‑letting, that the demised shop was ever sub‑let to appellant No.2. The respondent, except her word, has neither produced any oral or documentary evidence to show that the appellant No.2 has handed over the possession of the demised shop to appellant No.2 for some consideration or is receiving any commission or rent from appellant No.2 over and above the rent which has all along been paid by the appellant No.l to respondent. h is also submitted on behalf of appellant that a tenant can run his business either personally or through his servant or other near relative and such fact does not lead one to the conclusion that the rented premises has been sub‑let. In support of his aforesaid submissions the learned Advocate for the appellants placed reliance on two judgments i.e. the case of Mst. Anwar Begum and 7 others v. Syed Muhammad Siddiq reported as 1991 MLD 1182, and the case of Nasir Mehmood v. Mustajabi Begum reported as 1983 CLC 2872. Besides relying on the aforesaid two judgments, in order to decide a case on the ground of sub‑letting, I have no hesitation in placing reliance on the case of Taj Muhammad Abbasi v. Messrs Feroz Sons (Rawalpindi) (Pvt.) Ltd. reported as 1996 SCMR page 92, wherein it has been held that if it is proved that the tenant had delivered the possession of a portion of a premises for a consideration of "commission" without the consent of the landlord then such act of the tenant would amount to sub‑letting of the premises which is not the position of present case. In the instant case .there is no allegation by the respondent either oral or documentary that the appellant No. 1 has been receiving from the appellant No.2,any commission or rent over and above the amount of agreed rent which he has been paying to the respondent. Learned Advocate for respondent in support of the impugned order ‑passed in favour of respondent and against appellant has contended that appellant No. l had settled in United States of America and was running his business there; but was occasionally visiting Karachi to attend to his business in the demised shop which in his absence was being controlled by his brother‑in‑law and the appellant No.2. It is also contended that appellant No.2 did not produce any evidence or letter of appointment in his favour by appellant No.l to prove that he was working in the demised shop as an employee and not as a sub‑tenant. He argued that as such It was to be presumed that the appellant No.2 is not an employee of ''appellant No.l but is a sub‑tenant in the demised shop. He argued that from the cross‑examination of the attorney and brother‑in law of appellant No. l and appellant No.2 it is clear that neither the power of attorney granted by the appellant No. l in favour of his brother7in‑law was valid power of attorney nor it was proved that appellant No.2 was an employee of appellant' No.

1. As to the validity or otherwise of the General Power of Attorney which was exhibited as Exh.0/1 in the presence of learned Advocate for respondent and without any objection to its production, I am afraid the learned Advocate for respondent at this stage cannot be allowed to raise such an objection. In this regard I find strength from the reported case of Habib Bank Limited v. Anis Ahmad 1996 SCMR 1029. As to the sub‑letting the main contention of the learned Advocate for respondent is that since appellant No.l had gone to United State of America in the year 1990 and has established his business there, therefore, the respondent has realised that the demised shop has been sub‑let by him to appellant No.2. In this behalf the learned Advocate for respondent relied only on the case of Faqir Hussain v. Ghulam Abbas and 2 others reported as 1985 CLC 1015. According to the admitted facts of the said case the tenant who had gone to England in the year 1974 leaving shop in question with his brother to run business therein, did not return to Pakistan; but in the case in hand the appellant No. l kept on visiting Karachi and particularly the demised shop regularly and was submitting his Income Tax Returns and paying Income Tax on his income derived from the business carried on in the demised shop. The witness of appellant No.1 alongwith his affidavit‑in‑evidence had also submitted three tax payment receipts for the years 1990‑91, 1991‑92 and 1993‑94 as Annexures ".A" "B" and "C" showing the payments of tax amount for the said respective years in respect of his business carried on in the demised shop. It is strange that the learned Advocate for respondent did not cross‑examine the said witness as to the verisity/authenticity of the said tax payment receipts. I am of humble view that the citation, 1985 CLC page 2015, relied upon by the learned Advocate for respondent does not help him. . In view of the law applicable to the matter I am of the considered view that the respondent has utterly failed to show/prove that appellant No. l had sub let the demised shop to the appellant No.2, and that in the absence of any cogent: evidence the learned Additional Controller of Rents, Clifton Cantonment; Karachi has erred in deciding Issue No.2 in the affirmative and should not have passed the impugned order. The learned Additional Controller in deciding issue No.2 in favour of respondent has lost sight of the fact that the initial burden to prove the sub letting of the demised shop by appellant No.l to appellant No.2 was on respondent who did not lead any oral or documentary evidence to show that the appellant No.l had transferred his right under the lease to the appellant No.2. The learners Additional Controller has based his said findings of sub letting, only on the basis of cross‑examination of two witnesses who appeared fu!‑ _I d or; behalf of appellants in the matter. The said witnesses nowhere admitted that either the demised shop has been sub‑let or that the appellant. No.1 transferred his right under the lease to the appellant No.2 in any manner. In deciding said issue No.2 the learned Additional Controller has nowhere referred to the evidence of respondent. In my view the learned Additional Controller should have; considered that mere control of business of appellant No. l in the demised shop by his brother‑in‑law and attorney and the employee i,e. appellant No.2 never meant that any one of them was a sub‑tenant and/or they acquired the lease rights of' appellant No.l. It is well‑established principle of law that there could not be sub‑letting unless it is proved that the leasee has parted with the legal possession of the rented premises. Mere fact that either the relative or employee is allowed to use the premises while the lessee retains 0,e legal possession is not enough to creation of a sub‑lease Fur the foregoing reasons and law applicable to the matter the finding of the learned Additional Controller on the ground of sub‑letting cannot be sustained and, therefore, 1 set aside the impugned order, dated 1‑2‑1995 and allow this appeal with no order as to costs As to the decision on appellant's Application, C.M. No.288 of 1995, since no affidavit‑in‑rejoinder was filed by the appellant No. l in reply to the counter‑affidavit of respondent in reply to C.M.A. No.288 of 1995 and there being only word against word and three documents i.e. tax payment receipts referred to by me hereinabove. I do not find any merit in the said C.M.A. No.288 of 1995, where is dismissed with no order as to costs. H.B.T,/W‑23/K Appeal allowed