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‑‑ Ss. 13 & 15‑Appeal‑Concurrent findings of two Courts below that appellant not tenant of respondent and premises sublet to him by original tenant‑Issues of failure to tender rent and subletting of premises to appellant decided justly and on proper appraisal of evidence‑No prejudice or injustice caused‑Appeal dismissed.

1982 C L C 380 rel.

Osman Issa Bhai for Petitioner.

M. S. Nizamani for Respondents.

Dates of hearing : 12th and 14th September, 1982.

The facts in the historical sequence are that respondent No. I namely Mir Muhammad is the owner and landlord of the building No. 12/3, situated in Moosa Lane, Karad1i,, Appellant Muhammad Inayat who claims to be a tenant of Mir Muhammad has filed this appeal as concurrent findings of both Rent Controller and first appellate authority (Additional District Judge) went against him that he is not tenant but a subletee of the premises and in fact respondent No. 2 Muhammad Sharif is the tenant of the premises.

2.An application under section 13 of the West Pakistan Urban restriction Ordinance, 1959 was filed being the rent case No. 618 of 1970 n the grounds that Muhammad Sharif (Respondent No. 2) being the tenant has defaulted in payment of rent and that he has sublet the said premises to the appellant who was opponent No: 2 in the rent application.

3, Before the Rent Controller the respondent No. 2 namely Chaudhry Muhammad Sharif pleaded that relationship of landlord and tenant does not exist between him and the respondent No. 1 and as such the payment of rent as claimed by the landlord does not arise. The appellant to his written statement averred that he occupied the premises in April, 1964 and

that he paid rent at Rs. 30 per month to the landlord /respondent No. 1 upto 1969, but no receipt was issued by the respondent No. 1.

4, During the pendency of the rent application a preliminary issue as to the relationship of landlord and tenant was struck and it was decided by the Controller against the landlord and in appeal it was held by the Additional District Judge (Mr. G. S. Ghangro) that Muhammad Sharif respondent No. 2 was the tenant of Mir Muhammad.

5. Thereafter, the Rent Controller proceeded with the rent application and struck the issues which are as follows

(1) Whether opponent No. 1 has committed default in payment of rent to the Applicants

(2) Whether the opponent No. 1 has sublet the shop premises in dispute to the opponent No. 2 without the written permission of the Applicant ,

(3) What should the order be

6. The Controller found Issues Nos. 1 and 2 in the affirmative and consequently ordered ejectment of the appellant from the premises.

7. There was no written agreement of tenancy between landlord Mir Muhammad and Muhammad Sharif. Muhammad Sharif has been the tenant of respondent No. 1 in respect of Shops Nos. 1 and 2 which are in the same building and also Shop No. i is bigger than Shop No. 2. The learned Rent Controller after examining the evidence and specially the receipts Exhs. 2 and 2A to 25 issued from receipt books for the years 1954 to 1969 came to the conclusion that separate receipts were issued to Muhammad Sharif by the landlord at the rate of Rs. 60 per month till 4th December, 1969 (Exh. 25, and at the rate of Rs. 100 per month till 21st December, 1969 (Exh. 11). It is also concluded by the Rent Controller that Muhammad Sharif never shifted to Shop No. 2 and the present appellant is found to be a trespasser.

8. I have heard the arguments of the counsel of appellant and the counsel of the respondent. The learned counsel of the appellant has not been able to successfully, criticized the finding of the Rent Controller There is abundance of evidence that Muhammad Sharif was the tenant as the relevant receipt books were examined in the lower Court. There is no receipt issued to the present appellant and as such he was held to be not the tenant of Mir Muhammad. This view of the Rent Controller is upheld by the first appellate authority, the Additional District Judge. There are concurrent findings of two Courts on this particular fact and there appears no scope of arguments in favour of the appellant in regard to both the issues raised, that of failure to tender the rent and the sub‑letting of the premises to the appellant. These issues are decided. Justly and on proper appraisal of the evidence, by the two Courts below.

9. The learned counsel of the appellant has referred me to a decision of this Court reported in 1982 C L C 380. This authority does not help the appellant. It is distinguishable inasmuch as it relates to contracting out of the statutory tenancy. Such a point was never raised in the Courts below that Muhammad Sharif was statutory tenant.

10. On the other hand the arguments of Mr. Nizamani for respondent No. 1 are that the appellant has no locus standi as he is not the tenant and that there are concurrent findings of two Courts against him as such the appellant has no .case whatever. Mr. Nizamani has referred to P L D 1963 S C 466 wherein it was held that second appeal to High Court in the rent cases is governed by sections 100 and 101, Civil Procedure Code, and the concurrent findings of fact arrived at by the Controller and District Judge, cannot be disturbed in such appeal. The ruling quoted above applies to the facts of the instant case as the two Courts below have held that the appellant is not the tenant of respondent No. I and Muhammad Sharif is his tenant and the premises have been sublet by Muhammad Sharif.

11. Considering the facts on record and the evidence produced before the Rent Controller I feel that no prejudice or injustice is caused to the appellant. Respondent No. 2 appears more or less in conclusion with appellant and they have dragged this litigation for the last so many years. C Since the appeal has no merit and substance, the same is hereby dismissed. However, in the circumstances there will be no order as to costs. The appellant shall vacate the premises within two months.

M. Y. H. Appeal dismissed.

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