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First Rent Appeal No. 188 of 1984, decided on 8th April, 1987.
---Ss. 15(2)(iii)(a) & 21(1)--Subletting of shop--Proof--Landlord alleging subletting of premises in dispute had regularly been accepting rent of premises from tenant without protest since long--In notices issued by landlord to tenant prior to filing of ejectment petition, landlord nowhere stated that sub-tenant alleged in-ejectment petition was doing independent business in disputed shop--Alleged sub-tenant who admittedly was working as labourer in different shops, nowhere proved working independently as sub-tenant of original tenant- Allegation of subletting, having not been proved, Rent Controller rightly concluded that disputed premises were not sublet by tenant.
1985 C L C 2113; 1984 C L C 2331; P L D 1983 Kar. 168; 1982 C L C 43;K.C. Mamoo v. Mrs. Badrunnisa 1985 C L C 332 and 1982 C L C 44 ref.
---S.15(2)(v)--Nuisance--Proof--Landlord alleging that chemical used by tenant in disputed shop was dangerous and was source of nuisance to neighbours but failed to produce any officer from Health Department or Municipality or examined any expert to prove same--Allegation of nuisance, held, was not proved in circumstances.
M.A. Qadir for Appellant.
Hassan Jaffer for Respondents.
Date of hearing: 8th April, 1987.
This First Rent Appeal under section 21 of the Sind Rented Premises Ordinance, 1979 has been filed by Salahuddin landlord against the order dated 4-1-1984 of II Senior Civil Judge and Rent Controller, Karachi whereby his rent application was dismissed with costs.
A rent case No. 3657/1981 was filed by appellant Salahuddin on 25-8-1981 against Mohomed Hanif and Liaquat Husain. Respondent No.1 Mohomed Hanif entered into tenancy of a shop situated at 491/C, Commercial Area, P.E.C.H.S., Karachi on the ground floor at the monthly rent of Rs. 300 per month. The rent case was filed on the grounds of subletting, damages, conversion of the premises from jewellery shop to 'Bhatti' and into chemical and acid workshop. Respondent No.1 Muhammad Hanif in his written statement denied all the allegations. Respondent No.2 Liaquat Husain in his written statement stated that respondent No.1 Muhammad Hanif let out the shop to him in the year 1976 at monthly rent of Rs. 400 and subsequently increased the rate of rent to Rs. 725. He has further stated that respondent No.1 is responsible in regard to the BHATTI and nuisance.
On the pleadings of the parties the Rent Controller framed following issues:-
(1) Whether the opponent No.1 has handed over possession of the shop to opponent No. 2 without written permission from the applicant
(2) Whether the opponent No.1 has put the shop to a use different from the use for which it was let out
(3) Whether the opponent No.1 has created nuisance in the vicinity
Before the Rent Controller appellant Salahuddin and his witness Abdul Rahman were examined. In their evidence they have corroborated the allegations as given in the rent application. On the other hand respondent No.1 examined himself and his brother Muhammad Shafi while respondent No.2 examined himself only.
Mr. M.A. Qadir appearing for the appellant submitted that Muhammad Hanif who is the actual tenant has sublet the premises to Liaquat Husain and it is an admitted position that Liaquat Husain was working with Mohomed Hanif. It is argued that in reply -of notice Exh. O/1 respondent No.1 admitted that Liaquat Hussain is his servant and working under him for very long time. Therefore, according to learned counsel the premises were sublet by Muhammad Hanif to Liaquat Husain which is contrary to the provisions of rent law. Mr. M.A. Qadir, however, has not pressed issue Nos. 2 and 3.
With regard to issue No.3 learned counsel submitted that using of chemical and acid has created nuisance in the vicinity. He has pressed this issue and submitted that one Abdul Rahman has been examined and he has stated that respondent No.1 has created insanitary and unhygenic conditions to the neighbours, hence complaint was made to Health Officer of K.M.C. He has referred to 1985 C L C 2111, 1984 C L C 2331 and P L D 1983 Karachi 168 and submitted that appellant has rightly impleaded respondent No.2 as a party.
Mr. Hassan Jaffer appearing for the respondent No.1 argued that the case has been filed by the appellant in collusion with respondent No-2 Liaquat Hussain and that Mohomed Hanif never sublet the disputed house but is still carrying on the jewellery business. He has submitted that in notice dated 7-9-1980 the appellant had never mentioned that this shop has been sublet to any one but in the subsequent notice dated 11-8-1981 the ground of subletting was taken but name of Liaquat Hussain was not mentioned in that notice being an unauthorised person. It is argued that appellant all along was accepting the rent from the respondent and issuing the receipts in his favour, therefore he has waived his right. Learned counsel has relied upon the cases reported in 1985 C L C 332 and 1982 C L C 43.
The main point in this case is whether respondent No.1 Muhammad Hanif had handed over the possession of the premises to Liaquat Hussain as a sub-tenant. There is no documentary evidence in this respect but there are oral versions of appellant Salahuddin and his witness Abdul Rahman. This fact has been denied by Mohomed Hanif and he stated in his evidence that he is carrying on the business of goldsmith in the said shop since he was let out the premises in rent. The allegations, of Mohomed Hanif are that this case has been filed in collusion with respondent No.2 Liaquat Husain who had for sometime worked with him as his servant in the shop and created ground of subletting.
Appellant Salahuddin in the cross-examination has stated that he is receiving the rent regularly and respondents run the business of goldsmith. He has stated that mohallah people sent an application to Health Department about the nuisance but he has admitted not to have filed any affidavit of mohallah people. He has stated that respondent No.1 sublet and handed over the shop to respondent No.2 Liaquat Hussain about four years ago. Appellant was examined on 18-2-1982. From his evidence it is clear that he knew that shop was sublet to Liaquat Hussain probably in the year 1978 but in spite of that he continued to be receiving the rent from the respondent No.1 Mohomed Hanif for which he has no explanation. In two notices dated 7-9-1980 and 11-8-1981 sent to Mohomed Hanif nowhere he stated that Liaquat Husain is doing business in the said shop. It is interesting to note that in both the notices which are Annexures "A and "B" annexed with the rent application the address of Mohomed Hanif is given C/O Liaquat Hussain.
In the case of K.C. Mamoo v. Mrs. Badrunnisa 1985 C L C 332 it has been held as under:-
"It may be pertinent to observe that the respondent came to know about unauthorised construction and subletting in the year 1969 and continued to accept rent without any protest and did not file ejectment proceeding within reasonable time, but served notice on 7-9-1972 and again accepted rent without on 7-9-1972 and again accepted rent without any protest till the filing of ejectment application on 9-2-1974, it shall be presumed that she has waived such subletting."
In the above case number of authorities were referred and the learned Judge came to the conclusion that in the circumstances the right has been waived. Another DB case of Badruddin reported in 1982 C L C 44 is also on the same point.
Moreover respondent No.2 Liaquat Husain in cross-examination has admitted that he has handed over the possession of the shop to Mohomed Hanif after he received the notice of the case. It is, therefore, clear that the possession is now with Mohomed Hanif. Liaquat Husain in his cross-examination stated that he had been working as labourer in different shops of goldsmiths in Sarafa Bazar for last 12 years with different persons and he is a free time worker of polishing the ornaments. He stated that he never took any shop on rent from any body to do the work of polishing but he was always doing that work in the shops of other persons. He has also stated that presently he is working in the shop in Saddar Memon Masjid which shop belongs to Rais and he has taken on rent. From his evidence it is clear that he never had any independent work and nowhere it is proved that he has worked independently as tenant of respondent No.1 in the disputed shop. Moreover according to him he again handed over the shop to Mohomed Hanif. In these circumstances and from the record the allegation of subletting has not been proved and Rent Controller has rightly come to the conclusion that the premises were not sublet by the respondent No.1.
With regard to Issues No.2 and 3 no findings are necessary as both the issues have not been pressed by learned couns4l for the appellant.
The issue of nuisance has not been proved as no officer from the Health Department or the K.M.C. or any expert has been examined to show that any chemical is being used which is dangerous to the neighbours.
Respondent No.2 has not appeared. In my view his presence was not necessary as he was a formal party. He has no interest in the premises and according to his own pleading he handed over the possession to Mohomed Hanif and now he has no interest in getting the possession back nor he claims to the tenant of the appellant.
For the reasons stated above the appeal is dismissed with no order as to costs.
H. B. T./S-41/K Appeal dismissed.
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