MUHAMMAD IQBAL KALHORO, J.---Appellant is the, tenant in respect of shop No.5, Ground Floor, Plot No.10.D, Commercial Area-A, Phase II, Karachi ("the shop") owned by respondent, who filed rent case No.23/2012 against him for enactment on the grounds of default in payment of rent, subletting the shop and personal bona fide need. The case was decided on 07.07.2012 in the terms whereby the appellant was directed to hand over possession of the shop to the respondent within thirty (30) days. The appellant has challenged the said order by means of this appeal.
2.Record reflects that respondent had become owner of the building wherein the shop in question is situated by way of purchase through court auction in the year 2001. The shop was initially rented out to the mother of appellant by previous owner of the building namely Mian Zahid Ghani and after her demise, he became its tenant. Respondent in the case has alleged default against the appellant from the year 2001 to December 2008; and subletting the shop to some other persons, and himself doing business in another building known as Pak Paradise Super Market Phase I, DHA, Karachi. The respondent also claims possession of the shop on the ground that he intends to demolish it and construct a new one for which he has already obtained required permission.
3.Appellant has resisted the case on all the three grounds. His claim is that he is not the defaulter and has been depositing rent in the court in MRC No.04/2009. That the respondent himself was not treating him as a tenant as for his eviction he had filed Civil Suit No.179/2008, seeking possession, permanent injunction and mesne profits. And his status as the tenant was accepted by him only when the civil court in the above suit held so in its judgment dated 17.11.2011. That on this issue as well on the point of sale of the building in favour of the respondent both parties had initiated multiple proceedings before this court, which were disposed of finally vile order dated 02.12.2008 passed in HCA No.52/2008 in the terms whereby the civil court seized with the above suit was mandated to determine status of the appellant and meanwhile he was directed to deposit the rent as per rent agreement. But then due to refusal of the respondent to accept the rent tendered through money order, the appellant had to deposit it in the court. And finally the, civil court in its judgment rendered on 17.11.2011 in the above civil suit held that appellant was the statutory tenant.
Appellant has also denied subletting the shop, and relating to business in Pak Paradise Super Market his stance is that it is a separate business operated by independent persons. Against the ground of demolition of the building, his plea is that such permission has been sought from Clifton Cantonment Board on misrepresentation of the fact that entire building is vacant. His claim is that when he filed the suit against such action, the Board gave no objection to the status quo through a statement which also described that such permission was given subject to the vacant building.
4.On all the above three points the issues were framed by learned Rent Controller and vide impugned judgment all the issues were decided in favour of the respondent.
5.Mr. Ubed ur Rehman Khan learned counsel for the appellant by referring to numerous documents, which are part of the proceedings filed earlier by the parties before this court, argued that the three grounds the enactment application was based on were not proved. There was no default on the part of the appellant in view of respondent's own pleadings and there was no evidence either that he had sublet the premises to someone else. He also stated that the standard of proof to establish subletting under Cantonments Rent Restriction Act, 1963 was higher than the one required under provisions of Sindh Rented Premises Ordinance, 1979; in the former transfer by tenant of his rights under the lease was to be proved, whereas in the latter only parting possession with the premises by the tenant was to be established. That there was no evidence to substantiate that the appellant had transferred his lease right in 'favour of someone else.
6.On the other hand, learned counsel for the respondent in his arguments stressed that appellant was statutory tenant and it was his duty to pay rent to the respondent after he had become owner of the building. According to him, the grounds of subletting the shop and the same required for personal bona fide need by the respondent were established from the evidence of the parties. And to highlight his points, he read out the relevant evidence of the parties and also referred to provisions of law applicable to his case. cord reveals that appellant himself was part of the auction proceedings held in the year 2001 in which the entire building consisting of the shop was sold to t
7. I have considered the submissions and perused the material. Rhe respondent. He therefore cannot plead ignorance of sale in favour of the respondent. And in such eventuality the law does not permit him to raise any excuse to avoid fulfilling his obligation as tenant of the shop. The act of filing proceedings against the sale of the building in favour respondent had not absolved the appellant to account for his occupation of the shop when admittedly he was not its owner. And it may be noted that it is not his case that he had made attempts to tender rent to the respondent as a precautionary measure to save himself from any default. Therefore it is apparent that by not paying the rent of the shop to the respondent after he became its owner the appellant committed willful default. Insofar as Learned counsel's contention that the respondent himself was not accepting the appellant as his tenant; and his status to be either tenant or trespasser was subjudice before the courts, therefore, there was no occasion for the appellant to tender rent to the respondent. It may be observed that the respondent had filed the above civil suit in the year 2008 after about 7 years of purchasing the property only after realizing that neither the appellant, by instituting the suits against the sale of the building and claiming his title over the shop, was allowing himself to be treated as the tenant nor he was accounting for his occupation of the shop.
It appears that appellant had assumed that on the pretext of filing proceedings against the sale of the shop, he could evade his liability as tenant, and he actually for 7 years under this garb did not pay rent of the shop. His responsibility as statutory tenant to the respondent was absolute and had commenced as soon as he had become owner of the building, but it is conspicuous that appellant failed to discharge it.
8. The other ground is of subletting the shop, it has been denied by the appellant. His cross- examination, however, suggests that. Raiz and Shair Ali, whom he claims as his employees, are doing some business there, and he himself is working as an employee in some business known as Style Pak Paradise Super Market. Under the law, the respondent was required to prove this ground by showing that appellant had parted with the possession of the shop by subletting it, which, in my estimation, is established from the appellant's own evidence. He terms above noted two persons as his employees but has failed to bring on record any evidence in this regard to support him. He has not submitted any document either indicating that he is merely employee in the business in Style Pak Paradise Super Market as claimed by him. And he even failed to examine his above named employees to confirm their status; or anyone from Style Pak Paradise Super Market to prove his employment there. So the facts on record show that two persons other than the appellant are in occupation of the shop and the appellant himself is an employee somewhere else. It would therefore follow that the appellant has parted with the possession of the shop by subletting it.
9. I have also examined the ground of demolition of the building. The evidence of the parties shows that such process was in place when the appellant filed Civil Suit No.244/212 to thwart it, but before the status quo could be ordered in the said suit, some of the portion of the building had already been demolished that had severally impaired the building structure. Nazir's report (at page 139 of the file) concerning inspection of the site carried on 07.03.2012 in the said suit also confirms process of demolition of the building. Record also reflects that before embarking upon such action, the respondent had obtained required permission from the Cantonment Board. This coupled with the fact that the structure of the building has been severally imperiled would at least indicate the intention of the respondent to demolish the building for constructing a new one. And seen in this backdrop, appellant's assertion that respondent has resorted to such action only to force him vacate the shop appears to be without any substance. The permission to demolish any building is always conditional to its being vacant, because the converse thereof cannot be even anticipated; however the scheme under the law does not appear to arm a tenant to oppose such process by merely showing his possession of the premises in the capacity of the tenant. However, if he is able to show that only on the pretext of demolition he is being evicted, or for demolition of the building the landlord has resorted to undue and illegal course to evict him. His eviction from the premises on this ground can be stopped by the court. The record in hand does not point out that either of theories exists or has been sufficiently propounded by the appellant for consideration. The appellant has not been able to prove that process of demolition is aimed at only to evict him, or for his eviction any undue or illegal course has been adopted by the respondent.
10. In view of above discussion, I am of the view that the appellant has failed to make out a case warranting interference in the findings of learned Rent Controller. Consequently, this appeal is dismissedalong-with pending application. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.