1. MEHTA KAILASH NATH KOHLI, J. -7 This appeal is directed against order of eviction dated 5th March, 2007, passed by learned Civil Judge-II/Rent Controller, Quetta in Eviction Application No 14/2005, whereby; application of respondent No. 1 was accepted and appellants and respondent No 2 were directed to-vacate the premises.
2. Facts of the case, in brief, are that an eviction application was filed by respondent Haji Nasr-ud-Din in the Court of Civil Judge/Rent Controller, Quetta stating therein that he is owner and landlord of shop bearing No. 5 situated at Gwalmandi Sirki Road, Quetta, which was rented out to .Appellant No. 1 Wali Muhammad some twenty years ago at a monthly rental of Rs. 300/- in this regard oral agreement was made between the parties. It was further stated that appellant No. 2 Amanullah also started working with appellant No. 1 as laqourer, however; rent of the premises was used to be paid by appellant No 2 and on enquiry, he always replied that appellant No 1 was not in city. It has been stated that about two years ago respondent-landlord came to know that appellant No. 1 had sublet the said shop to appellant No. 2 without seeking any permission or bringing to the knowledge of respondent-landlord, however; the shop-in question remained in occupation of appellants, while rent of the shop was also enhanced to Rs. 600/- per month, which was being paid by appellant No. 2. It was case of respondent-landlord.That few months ago, appellant No. 2 had further sublet the shop to respondent No. 2 Muhammad Anwar at monthly rental of Rs. 3,600/-, while an amount of Rs. 600/- per month was being paid to the respondent-landlord. It was stated that appellants-tenants were time and again approached for handing over vacant possession of the shop, which is required for personal bona fide use and occupation of landlOrd's son. Rejoinder to the application was filed by appellants, wherein objections with regard to maintainability of the application were raised., On merits also the claim of respondent-landlord was refuted. It was stated that appellant No. 1 had obtained the shop in question on pagri and thereafter inducted appellant No. 2 as tenant in the same with the consent of respondent-landlord. It has been , .
3. Stated that appellant No. 2 had made payment of Rs. 50,000/- 'to appellant No. 1 and Rs. 20,000/- to the respondent-landlord.. It has further been stated that respondent No. 2 was working as labourer with appellant No. 2 in the said shop. The plea of personal bona fide use and occupation of respondent landlord has been denied.
4. Out of pleadings of parties, following issues were framed:---
(1) Whether respondent No. 1 subletted the shop in question to respondent No. 2, later on respondent No. 2 subletted the shop to. Respondent No. 3?
(2) Whether the applicant required the shop for his on bona fide use and occupation?
(3) Relief.
5. On conclusion of trial, learned Civil Judge-II/Rent - Controller, Quetta, vide order dated 5th March, 2007 directed eviction of appellants from the disputed shop. Against afore-mentioned 'order of eviction, present appeal has been filed before this Court.
6. Mr. M. Zafar, Advocate appeared on behalf of appellants, while Mr.., Noor-ud-Din, Advocate appeared on behalf of respondent-landlord.
7. Mr. M. Zafar, learned counsel for appellants has stated that the learned Trial Court has erred in holding that the premises-in-dispute are reasonably and in good faith required by respondent- landlord for personal use and occupation of his son. It was submitted that respondent-landlord is owner of seven shops, out of which, two shops are lying vacant. He further contended that the landlord has failed to show that the shop-in-dispute, which is adjacent to the said shops in the presence of occupation of two shops, how the requirement is bona fide. It was also contended that that the question of subletting has also not been decided on proper appraisal of evidence. It is the case of appellant that premises were given on rent to appellant No. 1 and thereafter with the consent of respondent-landlord, appellant No. 2 started making payment of the rent. Similarly, respondent No. 2 Muhammad Anwar was employed as employee, who has come forward and made a categorical statement that he is an employee in the shop.
8. On the other hand, Mr. Noor-ud-Din, Advocate appearing for respondent-landlord has contended that the premises are required reasonably in good faith for personal need of son of respondent- landlord, while the appellant No. 1 has sublet premises to appellant No. 2 and thereafter, he has further sublet the same to respondent No. 2 Muhammad Anwar and is receiving rent of Rs. 3,600/- per month.
9. Learned counsel for the appellants contended that the attornment of. The ,tenancy has been made, as such; the question of subletting from appellant No. 1 to, appellant No. 2 does not arise. The word 'attornment' has been defined in the Shorter Oxford English Dictionary -on Historical Principles, Third Edition, Volume-I as "legal acknowledgement - of the new landlord". Black's Law Dictionary Fifth Edition defines attornment' in the following words:--- "Attornment is the act of a person who holds a leasehold interest in land, or estate for life or years, by which he agrees to become the tenant of a stranger who has acquired the fee in the land, or the remainder or reversion, or the right to the rent or services by which the tenant holds. It is an act, by which a tenant acknowledges his obligation to a new landlord."
10. The Hon'ble Supreme Court of Pakistan in Mehraj Din v. Muhammad Ismail (1980 SCM R 764) has been pleased to hold that once rent is accepted then the relationship of landlord and tenant is established; relevant, portion of the said judgment, is reproduced herein-below:--- "These objections have been fully dealt with by the learned Judge in the High Court. As for the objection that the original money orders were not placed on the record, it was observed that there was a note appended to the statement of Ghulam Nabi, Postman P.W.3, which showed that the original money orders were produced before the Rent Controller when his evidence was recorded but after the conclusion of his statement they were returned to Muhammad Siddiq, P.W.3, a clerk, of the Postal Departmentwho had brought the record from Lahore Office. Therefore, no exception could be.Taken to the admissibility of the Exh.A/1 to A/4. As for the plea that the marginal witnesses had not been produced, it was pointed out that F.W.3 when cross-examined had stated that he personally knew the respondent as he remained posted in the area concerned for 28' years. No suggestion was made to him that the money ordersin question had been manoeurved_ and he had made incorrect reports on Exh.A/I to A/4.. It was also not suggested to him that he was in collusion with the respondent . Moreover, the attesting witnesses, if not examined by the respondent, could have been examined by the petitioner but he had failed to do so. In these circumstances, we are not persuaded to differ with the finding of the High Court that the petitioner had remitted rent for the premises in dispute to the-respondent and that as such he was his tenant, within the meaning of clause (i) of Section 2 of the Urban Restriction Ordinance."
11. The other factor, which is very important in the case in hand is with regard to waiver of the claim.
12. From the record, it is the case of respondent-landlord that about two years ago; he came to know about the factum of subletting; though, there is evidence on record that the premises were leased out twenty years back and the possession of the same was handed over after few' months of the creation of tenancy. The case of respondent No. 1 is about two years back he came to know about subletting and still kept on receiving the rent. In the case of Rais Illahi Bux & another v. Inamullah (NLR 1981 Appeal Cases 315 [Karachi]), his lordship was pleased to hold in the following terms:- Mr. Rashid A. Rizvi relied upon Civil Law Cases 1980 page 664 Karachi Part I where Mr. Justice Zafar Hussain Mirza held that a landlord having failed to file ejectment proceedings against the tenant in respect of subletting for a period of 15 months was deemed to have waived the subletting."
13. A Division Bench of Peshawar High Court in case of Amjad All v. Haji Said Wahab & 3 others (2003 YLR 1084 [Peshawar]), has observed in the following terms:--- "8. ... ... The determination of the question regarding subletting with permission of the landlord or otherwise , would depend upon the facts, - circumstances and conduct of the parties in each case.
14. In the present case, long silence on the part of the landlord clearly tends to suggest that the entire affair was in his knowledge but he raised no objection for reasons not far to seek. It is hard to believe that a house is vacated and another person is inducted as sub-tenant by the original tenants but the landlord remains ignorant about it and raises no objection."
15. The third question relevant for the purposes of subletting by appellant No,. 2 to respondent No. 2 Muhammad Anwar; categorical stand was taken that he (Muhammad Anwar) was employed in the shop as labourer for the purposes of cleaning and butchering the poultry products for which, statement of appellant Amanullah coupled with statement of respondent Muhammad Anwar, alleged sub-lettee, are sufficient to prove the said version, and thus; the conclusion that the premises have further been subletted to the, said respondent are without any basis. , There is no direct evidence that appellant No. 2 is receiving, rent from respondent No. 2 at the rate of Rs. 3,600/- per month. Thus, the findings recorded by the Trial Court in this regard are also not correct and proper and are based on misreading of record.
16. For the foregoing reasons, the impugned order of eviction passed by the Trial Court directed to be set aside. The appeal is allowed and the eviction application is dismissed with no order as to cost.