1. MUHAMMAD TASNIM, J. --- Through this petition, the petitioner has challenged judgment dated 25.11.2004 passed in F.R.A. No. 154/2004, whereby learned IIIrd Additional District Judge, Karachi East has set aside the impugned order dated 29.5.2004 of the learned Rent Controller passed in R.C. No. 14/2003 and allowed the appeal. He further ordered that ejectment application of respondent being No. 14/2003 was also dismissed.
2. Brief facts leading to the present petition are summarized as under:- That petitioner filed rent case under Section 15 of Sindh Rented Premises Ordinance, 1979 (hereinafter called as S.R.P.O.) in respect of shop No. 91-D, Block-6, Commercial Area, P.E.C.H.S. Karachi against the respondents on the grounds of default in payment of rent, sub-letting, bona fide personal need and on the ground of making addition and alteration without written permission in the demised premises.
3. Learned Rent Controller recorded the evidence of the parties and vide his Judgment dated 29.5.2004 decided the point of default in Negative, point of personal bona fide need in negative and point of addition and alteration also in negative, but learned Rent Controller answered the issue No. 2 relating to subletting in affirmative, and accordingly ejectment order was passed directing opponent to hand over the vacant possession of the shop within 60 days from the date of order. The respondent No. 1 felt himself aggrieved and challenged the above order of the learned Rent Controller through F.R.A. No. 154/2004 before IIIrd Additional District Judge, Karachi East, who after hearing the parties passed judgment dated 25.11.2004 and allowed the appeal with the following observations:- "In the light of above discussion the findings of the learned Trial Court are not sustainable and are liable to be set aside, therefore, set aside the impugned order of the learned Trial Court dated 29.5.2004 and allow this first rent appeal, with no order as to costs. The ejectment application of the respondent bearing rent case No. 14/2003 is also dismissed accordingly, with no order as to cost."
4. The above judgment of the learned Appellate Court had been assailed through this Constitutional petition.
5. Datt, learned counsel for the respondents and have gone through the record minutely with the assistance of learned counsel.
6. The only point urged before me by learned counsel for the petitioner was that the findings recorded by the learned Rent Controller in his Judgment dated 29.5.2004 holding subletting was in consonance with the evidence available on record. Learned counsel for petitioner while making his submission invited by attention to paragraphs 5, 6 and 7 of affidavit-in-evidence of the tenant and also invited my attention to paragraphs 4 & 5 of affidavit-in-evidence of the present petitioner. In addition to the above, learned counsel also invited my attention to entire evidence on the issue of subletting which I have read with his assistance. For convenience the paragraphs 5, 6 & 7 of affidavit-in-evidence of Muhammad Shamim is.Quoted as under:- "5. / say that since long I am doing job in well- reputed firm and also running my on business in the shop in question through my employee i.e. Opponent No. 2 which is well in knowledge of the applicant. I deny alleged version of applicant that he tried to contact and trace me but could not succeeded.
6. The alleged version of sub-letting the shop in question is based on conjecture and surmises, which I specifically deny being false and unfounded.
7. I say that I am running my on business in the shop in question through my employee. I personally doing job in another firm to earn more in order to meet out the need of my family, which does not mean that I have been shifted."
7. The cross-examination of the above witness on the above subject is also quoted hereunder:--- " / am tenant since' 1984 or 1985. There is no tenancy agreement between me and the land lord. It is incorrect to suggest that I have sublet the shop in question to opponent No. 2. He is my employee. I do not remember since which year he is my employee but he is my employee since the beginning.
8. It is correct that I have not filed any appointment letter regarding the job of the opponent No. 2. I am paying him 5000/- per month. There is no system for payment of salary in shape of cheque and the salary is being paid to the opponent No. 2 in cash. It is correct to suggest that neither I have file any voucher of salary nor any receipt alongwith my affidavit in evidence. I am running business of foam in the premises in question in the name of company."
9. The further cross-examination of the above witness is as under:- "It is correct I am depositing rent in said MRC. It is correct that the rent is being depositing by me in MRC No. 77/2002 in the name of Said & others. It is correct the MRC. Application was not filed by me personally and the same was filed by the signature of my employee. I know Arif Umer. He is residing in Saudi Arabia and working over there. I have not received any letter from Arif sent by him from Saudi Arabia wherein he demanded that he need the premises in question for his personal need. It is correct he sent a legal notice through his Advocate. The said notice was not replied by me. It is incorrect to suggest that the shop is sublet by me to Mr. Adil Ahmed Khan. I am paying Rs. 5000/- to Mr. Adil Umer. He is employee with me since last 6/8 years. I have not issued any receipt of salary and appointment letter, therefore, the same are not produced by me. Arif is not doing his on business he is employee in $audia."
10. Similarly paragraphs 4 & 5 of the affidavit-in-evidence of Samina Arif who appeared on behalf of the present petitioner has deposed in paragraphs 4 & 5 as under:- "4. That / say that the applicant after along persuation succeeded in ascertaining the address of the opponent No. 1 and as such he sent a legal notice to him through his counsel as required under Section 18, of the Sindh Rented Premises Ordinance, 1979 through registered acknowledgement post and through courier service on his both addresses. The notice sent to him at the above-said address was received back unserved with the remarks that the consignee shifted has there from whereas the notice sent to his place of job viz. Muhammad Shamim Khursheed, Manager Avenue & International Company, 48-8, Miran Muhammad Shah Road, situated at Muhammad Ali Housing Society, Karachi, was received in his office by one Zoya as per report of Courier. Through the said level notice, he was asked to handover vacant possession of the said shops to the applicant since he has failed to pay the monthly rent to him i.e.f. :March, 2002 whereby committing willful default he has sub-let the demised shops without prior written consent/permission of the applicant, but he has failed to respondent to it.
5. That I say that in response to the said legal notice dated 13.2.2002, dispatched to him at his place of employment the Opponent No. 1 has relied through his Learned Counsel denying the allegation of subletting and admitting the default of payment of monthly rent and other contents of the said legal notice."
11. "(c) Reverting to the second contention, namely, as to whether there was sufficient evidence on record to conclude that there was subletting, it may be observed that once a tenant admits that the tenement is in possession of somebody else, in that event the burden of proof is on him to explain in what capacity the other persons is occupying the tenement. In the instant case a joint affidavit was filed by Ghulam Muhammad and Habibullah. It seems that the name of Ghulam Muhammad son of Muhammad Siddiq was added subsequently in handwriting, and it was not originally typed. Be that as it may, it is an admitted position that Ghulam Muhammad has not tendered himself for X-examination. The only person who appeared for X-examination was Habibullah, who was not the tenant under the tenancy agreement. It may be pertinent to reproduce hereinbelow para 2 of the averment of the aforesaid alleged joint affidavit of the appellants as under:- " "that it is admitted that the opponent No. 1 has sublet the shop to me but we are co-sharers since the time of the execution of the rent deed in favour of the applicant."
12. Since Ghulam Muhammad has not come forward to subject himself to X-examination, he has failed to explain under what circumstances Habibullah has been using the shop. In my view the learned Rent Controller could conclude on the basis of the evidence on record that the fact of subletting has been proved."
13. Learned counsel further placed reliance on the case reported as 1987 M.L.D. 103 (Zamir Hassan and another v. Mst. Batul) relevant at page-105, which is quoted as under:-- "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 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."
14. Lastly learned counsel relied upon the case reported as 2009 S.C.M.R. 893 (Muhammad Shafi v.
15. State Life Insurance Corporation), retevant at page-902, which is quoted as under:- "19. Nevertheless the appellant's difficulty seems to stem from the fact that it is well-settled, as has also been observed even in the judgment in the case of Habibullah (supra) that it needed to be determined whether the newly induced partners had acquired any rights in the leased premises or were merely the licensees of the original tenant. In the instant case as has been clearly pointed out by Mian Mushtaq Ahmed that more than once the appellant categorically asserted that he had creased to remain a tenant and that the tenancy rights stood transferred to the entire partnership firm consisting of three partners. The plea of the respondent's acceptance of cheques from the firm obviously does not create an estoppel because the law expressly requires that transfer of such rights can only be effected with prior consent of the landlord. The word "prior" occurring in the statute cannot be ignored and even a subsequent ratification by the landlord through his conduct, in our view, would not debar him from exercising rights conferred by law."
16. The case-law cited by the learned counsel for petitioner quoted hereinabove do not support the case of the petitioner as in all the cases there was ample evidence on record that tenant in such cases had parted with the possession and some one else has been placed in possession in place of original tenant. The learned Judges who decide the cases have noted such fact in the above- quoted extracts from the judgment, hence judgment cited by learned counsel for petitioner are of no help to him.
17. As against above submission, learned counsel for respondent has argued that findings recorded by the learned Rent Controller are based on no evidence, ignorance of material evidence and such misreading of evidence has caused serious prejudice to the respondents. Learned counsel further submitted that point of subletting was not established through cogent evidence on record, but learned Rent Controller wrongly have his finding in positive. Learned counsel further submitted that findings recorded by the learned Appellate Court are in consonance with the material available on record and the learned Appellate Court has considered entire evidence on record and has appreciated the same in the impugned judgment. Learned counsel further submitted that case- law cited on the subject was discussed by the learned Appellate Court, hence judgment impugned in this petition does not call for any interference in Constitutional jurisdiction.
18. That the learned Rent Controller while recording his finding on the issue of subletting held as under:- "The scrutiny of above mentioned evidence brought on record by both the parties, it emerged as admitted that opponent No. 2 is running the business in demised premises. The claim of applicant's side that opponent No. 2 is in possession of demised premises and running the business. In these circumstances the burden shifted upon opponent No. 1. To prove that opponent No. 2 is working and running business as his employee. In this respect though opponent No. 1 brought on record the evidence of opponent No. 2 but has not been able to produce any documentary evidence in this regard. It is also worth to mention here that though opponent No. 1 claimed that he is running business in demise premises in the name and style of Shoaib & Company but he has neither been able to produce any bank account in the name of Shoaib and Company or any memorandum of the articles of the company. Further opponent No. 1 admitted that he is paying income tax in his name and the name of his were. Further admitted that he has not paid any income tax, in the name of his company. I am surprised to note that on the one hand opponent No. 1 claimed that opponent No. 2 is his employee but has not been able to answer a suggestion in cross- examination that since when opponent No. 2 is his employee.
19. "Having failed to do so there was no other material available on record on the basis of which it should be held that the premises was let out by the tenant to some other person. Besides, the learned counsel for the respondent has rightly pointed out that it was in the first instance, the duty of the appellant to have specifically pleaded the case of subletting of the premises and of the respondent receiving the rent from the subletee. None of the two important ingredients has been incorporated in the application. Nor any effort, as stated above, was made at any subsequent stage to place any material before the Court for seeking the relief of the eviction of the respondent on the ground of alleged subletting. There is no averment even in the affidavit of the appellant that the respondent was receiving the rent from the person who was actually in occupation of the demised premises."
20. The judgment cited by learned counsel for respondent shows that in the reported case it was not proved that rent was being tendered by the person in possession other than the tenant, hence subletting was not proved. In the present case rent was being tendered by the original tenant and is being deposited in Court by the original tenant, hence in the circumstances of the case subletting was not proved.
21. Now taking up the other arguments of the learned counsel for respondent and after examining the evidence on record, it is apparent that no positive evidence was brought on record before the learned Rent Controller for reaching to conclusion that respondent No. 1 has sublet the demised premises to the respondent No. 2. The above-quoted findings of learned Rent Controller are not based upon evidence on record. But learned Rent Controller has based his findings on presumptions, hence cannot be sustained.
22. With regard to the submission of the learned counsel for respondent that learned Rent Controller recorded his finding contrary to record and that subletting was not established by cogent evidence support by record. Findings recorded by learned Rent Controller was rightly disturbed by the learned Appellate Court. I am mindfull of the fact the High Court in its Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan cannot act as Court of appeal on the question of fact. However findings of fact recorded by competent tribunal or Court could be interfered with by High Court in exercise of Constitution jurisdiction if the same was based on no evidence or was recorded by ignoring the material evidence on record. Findings of fact could not be interfered with by High Court in its said jurisdiction merely on the ground that a different view on the basis of same material was possible. Keeping in view the above legal position if impugned judgment dated 25.11.2004 is read alongwith record it can safely be held that findings recorded by learned Appellate Court are in consonance with evidence available on record, hence does not call for any interference by this Court. .