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First Rent Appeal No. 68 of 1984, decided on 16th October, 1986.

---S. 15(2)(iii)(a)--Qanun-e-Shahadat Order (10 of 1984), Art. 122- Subletting--Burden to prove--Where subletting of rented premises was alleged by landlord, initial onus to prove that tenant had handed over possession of premises to some other person, held, would lie on landlord and not on tenant--Once it was proved that there has been transfer of possession, onus would shift on tenant to prove facts explaining manner in which such possession was handed over.

---S. 15 (2) (iii) (a)--Eviction on ground of subletting--Evidence on record clearly showing that landlord had failed to establish allegation of subletting against tenant--Rent Controller, held, was not justified in drawing inference of subletting and allowing eviction application particularly when explanation given by tenant was very much convincing.

Akhlaq Ahmad Siddiqui for Appellant.

Habibur Rasheed for Respondent.

Date of hearing: 25th September, 1986.

This First Rent Appeal is directed against the order, dated 15-12-1983 passed by the XVIth Senior Civil Judge and Rent Controller, Karachi, whereby he allowed the Eviction Application and directed the appellant to hand over the vacant possession of the premises in dispute to the respondent within one month from the date of order.

The facts which give rise to the above appeal are that the respondent is the landlady of a building known as "Qasre Batool" situated on plot No. SB 1/28 K.M.C. No. SB/1/30/2 Shahrah-e-Iraq, Saddar Karachi and the appellant No. 1 is the tenant in respect of a shop situated below the staircase of the above numbered building at Rs.30 per month. The respondent filed Eviction Application No. 2967 of 1982 against the appellant No. 1 on the ground of subletting and also on the ground of violation of the tenancy. The appellants resisted the eviction application.

The respondent filed a affidavit-in-evidence of her son and attorney besides affidavit-in-evidence of Fakhruddin. In rebuttal the appellants filed their own affidavit-in-evidence besides affidavit-in -evidence of one Salim Akhtar. They were cross-examined by the learned counsel for the respective parties.

The learned Controller after recording the evidence and taking into consideration the arguments of the learned counsel for the parties decided issues 1 and 2 in the affirmative and allowed the Eviction Application vide order, dated 15-12-1983.

The appellants being aggrieved against the order, dated 15-12-1883 of the XVlth Senior Civil Judge and Rent Controller, Karachi have preferred this First Rent Appeal on the grounds disclosed in the memo. of appeal.

Mr. Akhlaq Ahmed Siddiqui, the learned counsel for the appellant challenges the correctness of the finding of subletting arrived at by the Controller. According to the learned counsel, there is no evidence on the record to prove that the shop in dispute was sublet to the appellant No. 2. It is further contended that from the appellant's evidence which has not at all been considered by the Controller, it is proved that the business carried on in the shop in dispute belongs to the appellant No. 1 and the appellant No. 2 is an employee of the appellant No. 1. It is contended that in the circumstances of the case, no inference of subletting arises in the present case.

On the other hand it is contended on behalf of the respondent/ landlady "that the inference of subletting drawn by the Controller is wholly justified from the evidence on the record and this Court cannot interfere on the finding of the Controller.

Admittedly the Controller has allowed the Eviction Application on the ground mentioned in section 15(2)(iii)(b) of the Sind Rented Premises Ordinance, 1979 (hereinafter called the said Ordinance). Section 15(2)(iii)(a) reads as under:--

"(iii) the tenant has, without the written consent of the landlord--

(a) handed over the possession of the premises to some other person";

It is well-established that initially the onus of proving that the tenant has handed over the possession of the premises to some other person lies on the landlord and not on the tenant. Once the Controller is satisfied that there has been a transfer of possession, the onus would, in my opinion, shift on the tenant to prove the facts explaining the manner in which such possession was handed over. The reason is obvious. It is within the special knowledge of the tenant to show in what manner the other person came into the possession of the demised property. I have no quarrel with the above proposition. The manner of proving a fact depends upon the Evidence Act, or, at any rate, on the principles embodied therein. What I would like to emphasize is that where there is any fact specially within the knowledge of any person, burden of proving that fact is upon him (section 106 of the Evidence Act). On the basis of the above principle, once it is proved that there has been transfer of possession of the premises in dispute without the A written consent of the landlord, the only person who can account for it is the tenant and his transferee. On the proof of transfer of possession of the premises, the onus shifts upon the tenant to make out that transfer of possession can't be attributed to subletting or handing over, as the tenant, even after transfer of possession retained the right to claim the possession. In such a case, it is for the tenant to prove under what arrangement he transferred the possession to another person. In the present case the version of the appellants is that there has been no transfer of possession at all. On the contrary the appellant No. 1 asserted that he himself carried on business in the shop in dispute and the appellant No. 2 is his employee. The Controller has disbelieved that version and in my opinion, wrongly. It is not in dispute that the appellant No. 1 commenced Purchoon shop. The appellants appeared in the witness-box as D.Ws. 1 and 2 besides D.W. Saleem Akhtar. Saleem Akhtar's statement shows that the appellant No. 1 carried . on business of Purchoon. The son 4 and attorney of the respondent and her other witness Fakhruddin appeared in the witness-box. His statement shows that appellant No. 2 is a 'hakeem' and he was in his' treatment. The question arises whether the business of 'hikmat' is being carries on by the appellant No. 1 as stated by him or it is being carried on by appellant No. 2. In this connection the appellant No. 1 examined one witness D. W. 3 Saleem Akhtar and produced assessment orders and photostat copies of letter of 1982 issued by the Statistics Department and a questionnaire. P.W. 2 Fakhruddin and the letter of Statistics Department show that the appellant No. 1 carries on business in Sehat or medicines. It is an admitted position that the appellant No. 1 carried on business of Purchoon and also there is sign-board of Sehat Unani Dawakhana.

I have carefully gone through the statement of P.W. 2 Fakhruddin and D.W. 3 Saleem Akhtar and in my opinion, none of them is trustworthy. P. W. 2 no doubt stated that the appellant No. 2 carried on business of 'hikmat' and he was under the treatment of appellant No. 2 but his above statement is not at all convincing. The appellant No. 1 produced the same assessment orders besides the letter of Statistics Department and questionnaire. These documents show that he is carrying on the business at the shop in dispute. In the presence of such documents no reliance can be placed on the testimony of the respondent's son and attorney and Fakhruddin. I am, therefore, not inclined to accept this version put forward by the respondent that the business Carried on in the shop in dispute, is owned by the appellant No. 2.

From the above facts, it can safely be inferred that the appellant No. 1 is in occupation of the shop in dispute and there has not been a transfer of possession. It is true that there is no specific evidence in support of the plea set up by the respondent that the shop in question was sublet to appellant No. 2. In the circumstances the Controller was not justified in drawing an inference of subletting and allowing the Eviction Application. After assessing the evidence in the case, I am of the view that the respondent has not succeeded in establishing the subletting. I accordingly allow this appeal and set aside the order of the Controller and dismiss the Eviction Application filed by the respondent. In the circumstances of the case the parties will bear their own costs.

H.B.T/Z-4/K Appeal allowed.

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