Mrs. Usha Rani Anand (respondent No. 01), the landlady of the building known as 'Teena Lodge', constructed on Plot No 01, Block No. 3, Commercial Area, Bahadurabad Cooperative Housing Society Union, Karachi, leased out Flat No. 01, situated at first floor of the said building (hereinafter referred to as demised premises) to the Petitioner No. 01 at the monthly rent of Rs. 1600/-, payable in advance on or before the 10th of each calendar month.
2. The case of the landlady is that she came to know that Petitioner No. 01 sub-letted the demised premises viz: flat No. 01 to the Petitioner No. 02, illegally and unauthorizedly, when Mr. Muhammad Ameen, tenant of Flat No. 04 of the said building stated in the rent case filed for fixation of Fair Rent i.e. Rent Case No. 585/1999 that instead of S. M. Tahir-ul-Hassan, one Gilani (Petitioner No. 02) is in occupation of demised premises. The respondent No. 01 has also filed rent case No. 645/1999 for fixation of fair rent against Petitioner No. 01, in respect of the demised premises, in which the Petitioner No. 02 has shown his appearance being attorney of the Petitioner No. 01 and admitted his possession. The only ground for eviction of petitioners from the demised premises, sought by the landlady before the Court of rent Controller was that the original tenant/Petitioner No. 01 illegally and unauthorizedly sub-letted the demised premises in violation of tenancy agreement, as such, the tenant/sub-lettee/Petitioners are liable to be evicted.
3. In his written statement, the alleged sub-lettee/Petitioner No. 02 being attorney of Petitioner No. 01 denied the assertion made in the ejectment application and had taken the legal plea of non- maintainability of eviction application on the ground that in Sindh Rented Premises Ordinance, 1979, ejectment cannot be sought on the ground of sub-letting. However, the Petitioner No. 02 clarified that being real brother of Petitioner No. 1/original tenant, both of them took premises in question on rent, long before, in the year 1968 and according to him both Petitioners were living together but the rent receipt was being issued in the name of Petitioner No. 01. It is further stated that earlier round of litigation in between the parties was culminated in compromise.
4. On pleadings of the parties, the learned Rent Controller has framed the following points for determination:- "1. Whether the ejectment application is not maintainable and there is no ground of sub-letting in Sindh Rented Premises Ordinance, 1979?
2. Whether the opponent No. 1, illegally and un-authorisedly has sub-letted/handover the possession of the demised premises to the opponent No. 02, without the consent of the landlord?
3. What should the order be?"
5. After recording evidence on the above points from both sides, learned Rent Controller by judgment dated 26.02.2002, decided the above point No. 01 in negative, point No 02 in affirmative and allowed the ejectment application after discussing the evidence and in light of the case law available on the subject. Opponents were directed to handover the vacant and physical possession of the demised premises to the applicant within 60 days.
6. Being aggrieved by and dissatisfied with the judgment of Rent Controller, the tenant/Petitioners preferred First Rent Appeal No. 75/2002, which was also dismissed by judgment dated 08.01.2003, pronounced by the learned district Judge, Karachi (East). Against the concurrent findings of both learned lower Courts, the Petitioners have directed the captioned Constitutional Petition to set- aside the impugned order dated 08.01.2003, dismissing the Petitioners' appeal i.e. FRA No. 75/2002, however, the Petitioners did not make a prayer to set-aside the judgment dated 26.02.2002 recorded by Rent Controller No. V, Karachi (East), in Rent case No. 332/2000.
7. From perusal of evidence, available on the record, it reveals that the original tenant i.e. Petitioner No. 1 is residing somewhere else, though Petitioner No. 02 is claiming to be the brother of original tenant/Petitioner No. 01 is admittedly residing in the demised premises, without consent of the landlady/Respondent No. 01. In fact, the evidence available on the point of sub-letting of the demised premises by the Petitioner No. 01 to Petitioner No. 02 is an admitted position as no defence has been adduced to controvert the evidence of landlady/Respondent No. 01. In cross examination, the Petitioner No. 02 has made the following admissions, reproduced in verbitam:- "It is correct to suggest that I have not disclosed in previous rent case filed by the applicant on the ground of default that I was residing in the flat because that case was filed against my brother/opponent No. 01".
Petitioner No. 02 has further stated:- "It is correct to suggest that I have not filed any document which shows that Usha Rani has permitted me for residing in the premises in question since the inception of the tenancy".
He has also admitted that:- "It is correct to suggest that I have never issued any notice to Usha Rani in which I have stated that I am also tenant and issued rent receipts in my name as well as my borther name i.e. opponent No.
01. It is correct to suggest that it is no where mentioned in power of attorney that I am residing in premises in question. Opponent No. 01 has three children and also have a wife. Recently I do not know opponent No. 01 is where. In these days the children are in America.
It is correct to suggest that nothing has been mentioned by the opponent in his power of attorney that I am also tenant of the premises in question".
8. To examine the legal plea, as raised by the Petitioner No. 02 and framed as point no: 1, with regard to non-maintainability of ejectment application on the ground of sub-letting , suffice is to say that the ejectment of the tenant may be sought by the landlord on the ground of subletting as provided under section 15(2)(iii)(a) of the Sindh Rented Premises Ordinance 1979, reads as under:- "The Controller shall, make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in order, if he is satisfied that the tenant has, without written consent of the landlord handed over the possession of the premises to some other person".
9. The Petitioner No. 02 has admitted In his deposition that he is residing in the premises in question, which is handed over to him by his brother/Petitioner No. 01, without consent/permission of the Respondent No. 01. It has also came in the evidence that the Petitioner no. 1 being original tenant is not residing in the premises in question and settled his family in the United States of America. It is also an admitted fact that documentary evidence available on the record does not transpires that both Petitioners are/were residing in the demised premises as tenants. It is the case of the Petitioner no: 02 that being a real brother of the Petitioner No. 01 he is putting up in the tenement/demised premises, having right to live in it as a tenant. In support of his contention, learned Counsel placed his reliance on the case of Muhammad Sarwar v/s Muhammad Shafi, reported as 1986 SCMR 1638. In this cited case, the landlord had having admitted that the Petitioner was a co-tenant alongwith Sher Zaman, therefore, the suit was hit by section 13 of the Urban Rent Restriction Ordinance. On the face of it, this contention is inconsistent with the previous submission of the learned Counsel. In any case, the Petitioner cannot be allowed to raise inconsistent pleas by setting up a plea that he is a tenant in the demised premises. Facts and circumstances of the cited case are quite different from the present case as in the instant case the Petitioner No. 02 is residing in the demised premises as a brother and attorney of original tenant/Petitioner No. 01 S. M. Tahir- ul-Hasan. Learned Counsel for the Petitioner has also placed reliance on the case of Tanveer Ahmed Khan v/s Registrar, Lahore High Court, Lahore and 3 others (PLD 2013 Lahore 386), which case is relating to the Civil servants and is not attracting to the circumstances of present case.
10. Conversely, learned Counsel for the Respondent No. 01 placed his reliance on the reported cases of Muhammad Yameen v/s Sara Bai and others (2004 MLD 328) and Salim Sozer and another v/s Abdul Jabbar Qureshi and 2 others (1996 CLC 1283). In the case of Muhammad Yameen, it was held that none appearance of original tenant in witness box makes the case of tenant dubious. The allegation of sub-letting is a kind of charge against the original tenant, which was to be denied through direct evidence of tenant or at least some strong reason had to be given for his non- appearance and for examining another person on his behalf. In the case of Saleem Sozer (1996 CLC 1283), the appellant No. 01 handed over the possession to the appellant No. 02 being his real brother, therefore, evidence adduced on the point of sub-letting by the Respondent/landlady having remained unchallenged to controvert the statement of attorney of appellant No. 01, it was held that subletting had been proved and tenant was rightly ordered to be ejected on that ground.
Both these citations are squarely applicable in the circumstances of present case as in the instant case, original tenant (Petitioner No. 01) did not appear before the trial Court to corroborate the assertion made by the Petitioner No. 02.
11. From perusal of the judgment, recorded in First Rent Appeal No. 75/2002 by the then District Judge, Karachi East (Mr. Ali Sain Dino Matelo) it transpires that all legal plea and factual aspects of the case in hand have elaborately been examined, and the learned Judge rightly reached at the conclusion that there was no force in the contentions of appellant's advocate with regard to the fact that the landlady was not entitled to relief because one of the employee of the Respondent (landlady). Mr. Khursheed used to reside in the same building and must be knowing that the appellant No. 02/Petitioner No. 02 was also residing in the premises. Knowledge of servant cannot be treated as knowledge of master and consent cannot be inferred merely from the knowledge of a servant, particularly, the said Khursheed was not authorized to give consent for subletting.
Moreover, the statute specifically mention that the consent should be in writing and in presence of such statutory requirement, consent cannot be lightly inferred and since there is nothing to show that there was waiver of right on the part of the respondent and mere failure to take action due to ignorance cannot be said to give rise to waiver by conduct.
12. Suffice is to say that sufficient iota of evidence available on the record transpires that the status of Petitioner No. 02 in the demised premises is not more than a sub-lettee, on the basis of which both learned lower Courts have pronounced judgments, which do not require any interference.
Consequently, the captioned petition is dismissed and the Petitioners are directed to handover the vacant and physical possession of the premises in question to the Respondent No. 01 forthwith; since the Petitioner No. 02 is not legally entitled to retain the possession of demised premises, as such no time can be granted to him under the law.
Petition is decided in the manner indicated above.