IBAD-UR-REHMAN LODHI, J.--- On the strength of a rent deed entered into in between the parties to the litigation on 1-9-2001, the present appellant was inducted as a tenant in the demised shop. The term of tenancy in such rent deed was agreed as four years ending on 1-9-2005.
2. On 13-10-2005, the respondent, herein, filed an ejectment petition against the appellant on the grounds of violation of the terms of rent deed, subletting and personal need for his younger brother.
3. The petition was contested and in reply, the appellant came forward with a plea that although the tenancy was not extended by means of a written rent deed after expiry of the first one, but verbally, it was agreed in between the parties that the rent, which was being paid at the relevant time at the rate of Rs,3500 per month, will be enhanced to that of Rs,4400 per-month, keeping in view the provisions of section 5-A of the Urban Rent Restriction Ordinance, 1959 (hereinafter to be referred as 'the Ordinance'), providing twenty five percent increase in the rent after every three years in case of non-residential building and, thus, in view of such increase, the appellant started depositing the rent at the rate of Rs,4400. With regard to the allegation of subletting, it was categorically denied with a version that in the business being carried out in the said shop, the appellant associated his real brother Ashraf Ali Shah as a partner and in fact there is no subletting.
4. The learned Rent Controller proceeded to frame the following issues in presence of the learned counsel for the parties on 14-3-2008:-
(1) Whether the respondent has violated the terms and conditions of the rent-agreement? OPP.
(2) Whether the premises in question is required by the petitioner in good faith for his personal use and occupation? OPP.
(3) Relief"
' After recording evidence of the parties, the learned Rent Controller proceeded to allow the petition on the findings that the ejectment petitioner succeeded to prove Issue No,1 and subletting has been established; however, Issue No,2 was decided as not proved relating to the personal need of the ejectment petitioner.
5. Appeal filed by the present appellant was dismissed by the learned first appellate court on 11-5- 2010, and the conclusion arrived at by the learned Additional District Judge is indicative to the effect that the personal need of landlord for his brother was also accepted by the appellate court.
6. Such findings were challenged by way of present S.A.O., which was earlier allowed by this Court on 12-10-2012.
7. The respondent feeling aggrieved of such findings preferred C.P.L.A. No,2348-L of 2012 before the Hon'ble Supreme Court of Pakistan and vide order dated 4-3-2013, the same was converted into appeal and by allowing the same, the matter was remanded to this Court for decision afresh on merits, after sending for the record of the case. The reasons prevailed upon the apex Court seem to be that no findings by this Court on the issue of subletting, were given.
8. In post-remand proceedings, the records of the lower courts were requisitioned and parties were heard.
9. The learned counsel for the appellant has argued that, in fact, no issue as to the allegation of subletting was ever framed by the Rent Controller. The issues were framed in presence of the learned counsel for the parties and neither any other issue was pressed nor at any subsequent stage, the ejectment petitioner moved the forum of the Rent Controller to frame some additional issues reflecting the element of subletting. Further submits that section 13 of the Ordinance nowhere provides a ground for eviction of a tenant in case of stated violation of the terms and conditions of the rent agreement and although there are some statements of witnesses touching the issue of subletting, but no findings could have been expected from the courts-below on the point of subletting in absence of any particular issue framed in that regard. The learned counsel for the appellant continued to argue that the personal need of the landlord, which was specifically pleaded for his brother's requirement again is alien to the provisions of the Urban Rent Restriction Ordinance, 1959, and referred section 13(3)(ii)(a)(b) of the Ordinance, which enables a landlord to apply to the Controller for an order directing the tenant to put the landlord in possession in case of a non-residential building, if he requires it in good faith for his own use or for the use of his children.
The learned counsel has rightly pointed out that "brother" can in no manner be included in the list of "children".
10. The learned counsel for the respondent, on the other hand, has conceded that although no issue was framed on the point of subletting; however, he insisted to treat Issue No,1 as reflecting the portion of the pleadings relatable to the point of subletting. He, however, frankly conceded that on Issue No,2, there is no case on merits, as personal need of the brother of the landlord is nowhere recognized as a valid ground for eviction of a tenant in view of the provisions of the Ordinance.
11. With the assistance of the learned counsel for the parties and in compliance of the directions contained in order dated 4-3-2013, passed by the Hon'ble Supreme Court of Pakistan, I have scanned the evidence of the parties to examine as to whether the ejectment petitioner has Succeeded to establish subletting on the part of the tenant-appellant. Muhammad Azam, the landlord, appeared as AW.1 and with regard to the point of subletting, he has stated while in witness-box that he was not in possession of any document showing the creation of a subletting in between the tenant and his real brother. He was also ignorant of any rate of rent settled with regard to such sub-tenancy. The said witness has expressed his lack of knowledge as to the suggestion of joint business of two brothers in the rented premises. Real brother of the landlord Muhammad Waqas appeared as AW.2 and he was also unaware of the joint business of two brothers in the rented premises. Production of this witness was mainly aimed to prove the personal need of the said brother of the landlord. Muhammad Wasim appeared as. AW.3 and even this witness failed to justify the allegation of subletting by placing any cogent evidence on record in proof of such allegation.
12. In comparison of such evidence of the ejectment petitioner, the respondent-tenant Aslam Ali Shah appeared as RW.1 and in his examination-in-chief, he has categorically denied of any subletting with regard to the rented premises, rather he stated with regard to his joint business with his real brother Ashraf Ali Shah. During cross-examination over this witness, the landlord introduced another person, namely, Nagra, as the alleged sublettee. This suggestion was in clear departure of the pleadings and, thus, cannot be taken into consideration. Ashraf Ali Shah, the alleged sublettee, appeared as RW.2 and except as to the presence of the mentioned person Nagra as a sublettee in the rented premises, the witness was never confronted with a specific allegation that he is occupying the rented premises as sublettee.
13. Although the term "tenant" has been defined in section 2(i) of the Ordinance, but the terms "sublettee", "sublessee" or "sub-tenant" have nowhere been defined in the Ordinance and I have to borrow the definition of such terms from Black's Law Dictionary Eighth Edition, wherein "sublease" has been defined in the following manner:- "A lease by a lessee to a third party, conveying some or all ofIc the leased property for a shorter term than that of the lessee."
' The term "sublessee" has also been defined as under:- "A third party who receives by lease some or all of the leased ID property from a lessee."
"Let" is another term, which is to pe taken into consideration and the Dictionary has provided the following meaning to such term:-- "To offer (property) for lease, to rent out"
' Keeping in view the above definitions of "sublease", "sublessee" and "let", it is, but clear that in order to establish the allegation of subletting, some proof in the kind of some settlement or agreement in between the tenant and sub-tenant as to the period of sub-tenancy, and the rate of rent for such period to be paid by the sub-tenant are at least the assignments to be suitably performed by the person alleging subletting.
14. The evidence, which has been discussed in the above lines, clearly indicates that the landlord has failed to bring on record any such required evidence, in absence of which, the presence of Ashraf ' Ali Shah in the rented premises cannot be termed as in capacity of subtenant.
15. The learned counsel for the appellant has rightly argued that the violation of the terms and conditions of the rent agreement has nowhere been provided in the Ordinance as a ground seeking eviction by a G landlord; however, since with a specific direction to give findings on the issue of subletting, the matter was remanded to this Court by the apex Court, ignoring even such weighty arguments of the learned counsel for the parties, the evidence has been examined and analyzed and the pleadings are also considered with a view to see as to whether the landlord has succeeded to establish his such plea, but not; on record is suggestive to hold that the allegation of subletting has b en proved by the landlord.
16. Viewing from another angle, sticking to the terms and conditions of the agreement, which admittedly came to an end on 1-9-2005, would be a ridiculous situation as on one hand, the landlord has come forward with a plea that after expiry of the rent agreement on 1-9-2005, same was never renewed and, on the other hand, he was still alleging the violation of the said rent agreement.
17. The result of the above discussion is that both the courts-below have erred in Law by holding that in violation of the terms and conditions of the rent agreement (expired on 1-9-2005), the appellant was guilty of subletting of the rented premises and, thus, eviction order passed on such findings is not sustainable. The impugned order dated 11-11-2009 and the judgment dated 11-5:2010, respectively passed by the two forums-below are, thus, set aside. This appeal is allowed and consequently the ejectment petition, filed by the respondent, is dismissed with no order as to costs.
18. The records of the lower courts be remitted back immediately.