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First Rent Appeal No. 531 of 1986, decided on 25th April, 1987.

---Ss.15 & 21--Ejectment--Subletting--Fact that tenant parted with possession of shop in dispute established by landlord through evidence--Burden shifted upon tenant which he failed to discharge- Person who was allegedly given possession of shop by tenant worked at shop, and filed his written statement but thereafter remained absent and tenant neither examined that person nor any other person to testify that the alleged sub-tenant was not paying rent to tenant nor he himself stated categorically that he was not charging rent from him--Entire evidence giving impression that he was no more concerned with shop in dispute which was in exclusive possession of somebody else who carried on business there--Held, only conclusion that could be drawn in circumstances was that tenant had parted with possession of shop in dispute--Order of Rent Controller ejecting tenant on ground of subletting maintained in circumstances.

Farooq Hashim for Appellant.

S.M. Abbas for Respondents.

Date of hearing : 12th April, 1987.

This First Rent Appeal is directed against the order., dated 31-5-1986 passed by the IIIrd Senior Civil Judge/ Rent Controller, Karachi, whereby he allowed the eviction application filed by the respondent and directed the appellant to hand over the vacant possession of the premises in dispute to the respondent within a period of 120 days from the date of this order.

The facts leading to the filing of the above appeal are that the appellant is the tenant in respect of Shop No.2 Anjuman-e-Islamia Market, Nazimabad No.5, Karachi at the monthly rent of Rs.60. The respondent filed eviction application No.4434 of 1982 (New No.2072/85') against the appellant and Shoukat on the ground that the appellant parted possession of the shop in dispute. The appellant resisted the eviction application. The respondent filed affidavit-in-evidence of its Secretary Rayazuddin besides affidavit-in-evidence of Muhammad Nasir and Masaq Ullah Khan. In rebuttal the appellant filed his own affidavit-in-evidence beside affidavit-in-evidence of Nasir Ahmed and Muhammad Din Qadri. They were cross-examined by the learned counsel for the respective parties.

The learned Controller on the basis of the evidence adduced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties decided issue No.1 in the affirmative and allowed the eviction application vide order, dated 31-5-1986.

The appellant being aggrieved against the order dated 31-5-1986 of the IIIrd Senior Civil Judge/ Rent Controller, Karachi has preferred this First Rent Appeal on the grounds mentioned in the memo of appeal.

Mr.M. Farooque Hashim, the learned counsel for the appellant has contended that the respondent has not established that the appellant parted with the possession of the shop in dispute.

On the other hand Mr. S.M. Abbas, the learned counsel for the respondent has submitted that the order is in accord with the evidence of the parties and it is an admitted position that the appellant parted with the possession of the shop in dispute.

I have considered the contentions of the learned counsel for the parties and have gone through the evidence adduced by the parties. It is an admitted position that the shop in dispute was let out to the appellant. The respondent averred in the eviction application that the appellant has no right to sublet and/or under at the same. The appellant denied the contents of para. 4 of the eviction application. The respondent also impleaded Shaukat as second opponent who also denied the contents of para. 4 of the eviction application. The respondent filed affidavit-in-evidence of their Secretary. In para. 4 of the affidavit, it was averred that the appellant after passing LL. B. sublet and delivered the possession of the shop to Shaukat and others as sub-tenant on a monthly rent of Rs.200 without the permission and consent of the respondent. The Secretary denied the suggestion that Shaukat was the servant of the appellant. The Secretary also denied the suggestion in cross-examination that the appellant had not sublet the shop premises to Opponent No.2. The Secretary also denied the suggestion that he did not file any document to show that the appellant had sublet the shop to Opponent No.2. The Secretary to suggestion in cross-examination replied that "I have not seen Shaukat at the shop since last 4-5 months. Voluntarily says his brother or brother-in-law Shafi Muhammad is now working and the opponent No.1 has charged amount of Rs.3,000/- as Pugree". He also denied the suggestion that Muhammad Shaft is the servant of the appellant. The two witnesses namely Muhammad Nasir, Massaq Ullah Khan has fully corroborated the statement of the Secretary of the respondent. He deposed that "Shaukat is running a bakery with the help of his brothers as sub-tenants".

Mr. Hashim, the learned counsel has contended that the respondent has not discharged the burden that the appellant had sublet the shop in dispute. This contention is devoid of force. Firstly the respondent averred that the appellant had parted with the possession of the shop in dispute after passing LL. B. The respondent lodged a complaint 1710/SBC 26/83 against the appellant before the Sind Bar Council at Karachi. The appellant filed written statement on 21-4-1984. The appellant stated in para. 2 of the written statement as follows:

"That the respondent is practising Advocate and has been enrolled on 30-8-1982. That he after joining as a pupil, is not doing the business and the entire business is being run, looked after and managed by the respondent's wife who is running the business through an employee Mr. Shaukat."

It is an admitted position that the appellant is not running the business. It is also an admitted position that he parted with the possession. The respondent discharged the initial burden, that is, the appellant had handed over possession of the shop in dispute. The burden shifted upon him which he failed to discharge.

The other aspect of the case is that Shaukat filed written statement and thereafter he remained absent. It was open to the appellant to have examined Shaukat or other servant to testify that they are not paying any rent to the appellant. The appellant himself stated in his affidavit that "I have neither sublet anyone else in the premises nor having violated any of the terms since the inception of tenancy". It is pertinent to note that he did not state categorically that he is not charging any rent from Shaukat or the other person. The entire evidence and his written statement/reply filed before the Sind Bar Council, the impression is that he is no more concerned with the shop in dispute which is in exclusive possession of his wife or Shaukat or other person, who is carrying on business. In these circumstances the only conclusion that can be drawn is that the appellant had parted or handed over the possession of the shop in dispute and he had not legal possession or control over the shop or the business. I think the learned Controller has rightly held that the appellant had parted with the possession of the shop in dispute. I have perused the evidence with the assistance of the parties. The learned counsel for the appellant is unable to point out any misreading of the evidence.

In the result the appeal is dismissed. The appellant is allowed c to vacate the premises on or before 31-8-1987 and to deliver vacant possession of the shop in dispute to the respondent. In the circumstances of the case the parties shall bear their own costs.

The above are the reasons for the short order dated 12-4-1987 passed on the conclusion of the arguments of the learned counsel for the parties.

M.H.Y./N-43/K Appeal dismissed.

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