' This second rent appeal is filed by the appellant/landlord against the order of VI Addl. Distt. Judge, Karachi, dated 10-2-1980, exercising jurisdiction as the 1st appellate authority under the Sind Urban Rent Restriction Ordinance, 1959 (I will hereafter refer this Ordinance as the "repealed Ordinance") whereby the order of Rent Controller granting ejectment of respondents on the grounds of subletting and unauthorised construction in the premises has been set aside.
2. The appellant has originally filed Ejectment Case No, 1976/1970 on 10-10-1970 before the VII Rent Controller, Karachi, under section 13 of the repealed Ordinance, against respondents Nos. 1 to 7 only on grounds of default, subletting and unauthorised construction in the premises. During pendency of the ejectment case the appellant made application to join respondent No, 8 as opponent in the case on the ground that the premises in his occupation has been sublet to him by respondents 1 to 5 during pendency of the case. This application was granted by the Controller with the consent of respondents 1 to 7 and accordingly respondent No, 8 was joined as opponent No,
8. Thereafter another application was filed by respondent No, 9 before the Controller on 5-2-1975 praying that they may also be joined as party in the above rent case as they are the sub-tenant of respondents 1 to 5 in respect of the 1st floor premises with. The consent of landlord. Only the appellant filed counter-affidavit to this application controverting the allegations made therein. However, when the above application came up for hearing the appellant's counsel consented to the joining of respondent 9 as opponent in the case without prejudice to the objections filed by him to the application. The Rent Controller accordingly allowed the application of respondent 9 by consent and joined it as opponent 9 in the above rent case. The appellant thereafter filed the 2nd amended rent application before the Controller on 25-8-1975. Respondents 1 to 5 who had already filed their written statement in the case on 2-1-1971, did not submit any amended written statement but adopted their earlier written statement on 4-11-1975. Similarly respondents 6 and 7 who had also filed their written statement on 2-1-1971 did not file any further written statement in the case.
Respondent No, 8 did not file any written statement in the case and was consequently declared ex parte. Respondent 9 filed its written statement on 4-11-1975 claiming to be in possession of first floor premises since 1950 as sub-tenant of respondents 1 to 5 with the consent of landlord. The Rent Controller framed following issues in the case :- "(1) Whether the opponents are defaulters in the payment of rent within the meaning of section 13 "West Pakistan Urban Rent Restriction Ordinance (VI of 1959) ?
(2) Whether the opponents have made and allowed the unauthorised construction in the premises in dispute as alleged in sub-paras. (i) (ii) (iii) & (iv) of para. 12 of the application ? If so, its effect ?
(3) Whether the opponents have sublet a portion of the premises in dispute, on the ground floor to a cigarette manufacturer for cigarrette advertisement purpose without the permission of the applicant in writing ?
(4) Whether the opponents have sublet the entire first floor of the premises in dispute without the permission of the appellant in writing ?
(5) To what relief, if any, is the applicant entitled ?"
' Issue No, 1 was decided against the appellant while issues 2 to 4 were held in favour of appellant and accordingly ejectment order was passed against the respondents. On appeal the first appellate authority reversed the findings of Rent Controller on issues 2 to 4 and accordingly the order of ejectment passed by the Controller was set aside and ejectment case was dismissed. This order of 1st appellate authority is impugned in the above appeal.
3. At the hearing of appeal Mr. Khalid Ishaque, the learned counsel for respondents 1 to 5 raised a preliminary objection as to the maintainability of the appeal. It is contended by the learned counsel that after the enforcement of Sind Rented Premises Ordinance, 1979 (I will hereafter refer this Ordinance as "the Ordinance" only) no second appeal in a rent case is competent. The learned counsel urged that although subsection (2) of section 27 of the Ordinance provides that all appeals, and such cases before a Controller as are fixed for arguments or judgment which have been filed under the repealed Ordinance shall notwithstanding the repeal thereof be disposed of in accordance with the provisions of repealed Ordinance but reading this subsection with the subsequently added subsection (4) to section 27 of the Ordinance, the effect produced is that no second appeal is maintainable against the order of 1st appellate authority passed under the repealed Ordinance after the date when subsection (4) was added to section 27 of the Ordinance.
It is contended that the effect of subsection (2) of section 27 of the Ordinance on a pending 1st appeal filed under the repealed Ordinance was only to the extent that it was to be decided in accordance with the provisions of Repealed Ordinance but on the enforcement of Sind Rented Premises (Amendment) Ordinance, 1980 (which added subsections (3) and (4) to section 27 of the Ordinance) the right of a second appeal against the decision in the 1st appeal stood destroyed as such decision in the 1st appeal by force of subsection (4) of section 27 of the Ordinance is to be treated as a decision under the Ordinance against which no second appeal was competent. The contention of the learned counsel has no merit. Section 2 of the Ordinance as it originally stood in the Ordinance consisted of only subsections (1) and (2), subsection (1) of section 27 repealed the Sind Urban Rent Restriction Ordinance, 1959, but subsection (2) thereof saved all appeals and cases before the Controller as were fixed for arguments or judgment, from the effect of repeal and these were to be disposed of in accordance with the provisions of the Repealed Ordinance notwithstanding the repeal thereof. The clear effect of saving provided in subsection (2) of section 27 of the Ordinance is that the right of second appeal available to a litigant against the order passed in the 1st appeal which was pending on the date of enforcement of the Ordinance was saved. It is not disputed that the right of appeal is a substantive right which can be taken away only by express words or by necessary intendment. There is neither any express word nor necessary intendment in section 27 of the Ordinance which could lead to conclusion that the Legislature wanted to take away the right of second appeal. On the contrary subsection (2) of section 27 which is a saving clause has saved this right. In so far the effect of subsequently added subsection (4) to section 27 of the Ordinance on the pending 1st appeal under the Repealed Ordinance is concerned I am unable to agree with the contention of Mr. Khalid Ishaque that it destroyed the right of second appeal available to a litigant under the Repealed Ordinance. This newly added subsection (4) only provided that the orders passed in pending matters which have been saved under subsection (2) of section 27 of the Ordinance and all orders passed in proceedings under the Repealed Ordinance before coming into force of the Ordinance shall be treated and deemed to be an order under the Ordinance. This provision could not be construed as destroying the right of second appeal of a litigant in a pending 1st appeal under the Repealed Ordinance. In my view subsection (4) of section 27 of the Ordinance was added to avoid the effect of section 13 of the Ordinance on orders passed under the Repealed Ordinance. Section 13 of the Ordinance reads as follows : "Eviction.-No tenant shall be evicted from the premises in his possession except in accordance with the provisions of the Ordinance."
' It will be seen that in the absence of a provision of the nature of subsection (4) of section 27 of the Ordinance, an order passed by the Controller, the 1st appellate authority and the second appellate authority under the Repealed Ordinance before coming into force of Sind Rented Premises Ordinance, 1979 or in a pending matter saved under section 27 (2) of the Ordinance could not be effective against a tenant in view of section 13 of the Ordinance and it appears that in order to overcome this difficulty subsection .(4) was added to section 27 of the Ordinance subsequently. I am, therefore, of the view that a 1st appeal under the Repealed Ordinance which was pending on the date of enforcement of Sind Rented Premises Ordinance, 1979, was saved from the effect of repeal and was to be disposed in accordance with the provisions of the Repealed Ordinance, and therefore a Second Appeal to this court was competent from the decision in such 1st Rent Appeal in accordance with the provision of subsection (4) of section 15 of the Repealed Ordinance. I accordingly overrule the preliminary objection raised by Mr. Khalid Ishaque.
4. On merits Mr. Mansoorul Arfin, the learned counsel for the appellant admitted before me that mere unauthorised construction in the premises by a tenant was not a ground under the Repealed Ordinance for his eviction from the premises unless it is shown that such unauthorised construction has materially impaired the value and utility of the premises. The learned counsel conceded that no evidence has been led by the appellant in the case to show that the value and utility of the building has been materially impaired by the acts allegedly committed by respondents 1 to 5.
Apart from it I have also gone through the evidence of the appellant recorded before the Rent Controller on this issue with the assistance of learned counsel for the appellant and on reading the same I am of the view that he has failed to prove that respondents 1 to 5 have raised unauthorised construction in the premises which has materially impaired the value and utility of the building. In fact from reading of the evidence it appears that the acts complained of were the same as were the subject-matter of an earlier proceedings which ended in a compromise. It also appears that after the compromise there was no fresh act of making any new construction and alteration in the premises. The 1st appellate authority therefore rightly decided this issue against the appellant. In so far the allegations of subletting against respondents 6 to 8 are concerned the appellant in his evidence before the Rent Controller admitted that these respondents are in occupation of the premises with this consent.
5. Regarding allegation of subletting by respondents 1 to 5 in respect of a portion of ground floor premises to a cigarette-wala the learned counsel for the appellant is unable to point out any convincing evidence on record to establish the same. On the contrary this allegation of subletting was also subject-matter of controversy in the earlier rent proceedings which ended in compromise. Therefore, the 1st appellate authority also decided rightly this issue against the appellant.
6. The appellant has however also alleged subletting of first floor of the demised premises to respondent 9. The 1st appellate Court while reversing the finding of Controller on this issue gave the following reasons :- "16. Let us deal with now issue No, 4 the burden of proof of this issue is also upon the respondent/landlord that the first floor of the property in question was subletted to the respondent without prior permission or his consent. In this respect in the amended plaint the respondent/landlord had submitted that the property in question was subletted by the appellants to the respondent No, 9 and in deposition respondent/landlord had submitted as under :- 'They again sublet the first floor to M/s. Hirjine, again I served them a notice Exh. A-20. ..... They did not comply the demands, I produce the reply as Exh. A-31 ..
17. Respondent/landlord has been cross-examined on this point at length wherein he has admitted that this respondent is in possession and occupation of the first floor since 1950 and dealing with a bar in it. He has further submitted in cross-examination that the landlord had filed a suit for injunction against such a business before the honourable High Court but the same was dismissed.
He has further submitted in cross-examination that on account of sub letting first floor to respondent No, 5 the rent was increased from Rs 1,400 to Rs, 3,000 in 1966 which itself is sufficient that such a subletting was with prior permission of the landlord which could not be disputed after a long period of 20 years.
18. With the result of the above discussion, facts and circumstances of the case when the respondent/landlord has failed to prove the allegations in the plaint against the appellants and other respondents no discretion can be exercised in his favour as the discretion will always to be exercised judicially basing upon sufficient evidence to prove.
19. The contention of the learned counsel for the appellant is also sound that when it was within the knowledge of the respondent/landlord that the alleged subletting of the first floor to the respondent No, 5 since 1950 but he or his predecessors-in-interest did not take any action nor mention in the previous rent application as well as in this application it was also concealed by the respondent/landlord in the first instance but when respondent No, 5 applied the court for impleading him as a party then only he was able to alleged this fact. "In these circumstances it is rightly argued by the learned counsel for the appellant that actually respondent/landlord had consented and waived his right of ejectment on this ground even though he had not admitted all the above facts regarding respondent."
6. It will appear that both the Courts below came to the conclusion that the premises has been sublet to respondent No, 9 by respondents 1 to 5. The Controller came to conclusion that subletting was done without consent of the appellant while the 1st appellate Court held that it was with the consent of landlord. The Controller in arriving at the conclusion that the subletting was without consent of the appellant referred to the certified copies of proceedings in Suit No, 192 of 1950, oral evidence of appellant in this regard and non-appearance of respondents 1 to 9 in evidence to lead any evidence in rebuttal. The reasoning given by the Rent Controller for holding that subletting was without the consent of appellant is quite logical and convincing and is in accord with the evidence on record. As against this the 1st appellate Court in holding that the subletting had taken place with the consent of landlord found that (i) respondent No, 9 was in occupation of the 1st floor premises for the last above 20 years; (ii) that a suit for injunction was filed by the predecessor-in-interest of the appellant against the running of a bar in the 1st floor premises which was dismissed; (iii) that D the appellant admitted in cross-examination that on account of subletting of 1st floor premises the rent was increased from Rs, 1,400 to Rs, 3,000 in 1966 and (iv) that the landlord in spite of having knowledge of subletting omitted to sue the respondents for eviction for nearly 20 years. The above reasons given by the 1st appellate authority for reversing the findings of Controller do not find support from the evidence on record. Besides the findings of 1st appellate Court do not reveal a legical basis for differing from the findings of Controller and are also based on misreading of evidence. Mere occupation of respondent No, 9 in the premises for a period of 20 years was not at all sufficient in the circumstances of the present case to hold that the premises was sublet to respondent No, 9 with the consent of landlord. The certified copies of -proceedings in Suit No, 192/1950 show that the prodecessor-in-interest of respondents 1 to 5 before institution of the above suit in reply to a notice of landlord's Advocate categorically denied that the premises were sublet to respondent 9 by him. It was claimed that the business was run in the premises by respondent 9 as partner of the predecessor of respondents 1 to 5 without subletting the premises to him. Again in the written statement and in the application under Order XXXIX, rule 4, C. P. C. Filed in Suit No, 192 of 1950 the predecessor of respondents 1 to 5 denied allegation of subletting of the premises to respondent 9 and claimed that respondent 9 was only his partner in the business. Respondents 1 to 5 also in their written statement filed before the Controller denied the subletting and only asserted that the 1st floor was in use as a bar since 1950 with the consent of applicant. The appellant in his statement on oath before the Controller stated that respondents I to 5 have sublet the premises to respondent 9 and he produced the notice served on respondents 1 to 5 before institution of rent case alleging subletting. Neither respondents 1 to 5 nor respondent No, 9 appeared in the witness- box in support of the case set up by them in the written statement nor any evidence in rebuttal was produced by them. In these circumstances it cannot be said that respondent succeeded in proving that the subletting was done with the consent of appellant or his predecessor-in-title. The 1st appellate Court has also observed that the appellant admitted in his cross-examination that for subletting the premises to respondent No, 9 the rent of the premises was enhanced from Rs, 1,400 to Rs, 3,000. This finding, to say the least, is based on a complete misreading of evidence. It was neither the case of respondents 1 to 5 nor that of respondent No, 9 that for subletting the premises to respondent No, 9 the appellant had accepted enhanced rent. The appellant had categorically denied the suggestion in cross-examination that the increase in rent was due to subletting of premises to respondent No,
9. This was the reply of appellant in cross-examination :- "It is incorrect to say that this increase in rent was due to subletting of the premises to opponent No,
9. But the rent was increased from Rs, 1,400 to Rs, 3,000 in 1966 on the point of subletting as mentioned in Exb. A/2,"
' Exh. A/2 is the agreement of lease executed between the appellant and predecessor of respondents 1 to 5. A reading of clause 6 of Exh. A/2 shows that the rent was increased on account of subletting permitted by the landlord asked for in the letter of tenant dated 1-11-1966 in respect of ground floor premises measuring 36 feet in length and 26 feet in width which was shown and demarcated in the plan attached with the lease deed. This portion of premises according to evidence on record is the same which was sublet to respondents 6 to 8. The 1st appellate Court therefore completely misread the evidence in arriving at the above conclusion. The 1st appellant Court lastly held that the appellant was aware of the subletting but failed E to take action for 20 years. This conclusion also does not find support from the evidence on record. The certified copy of previous litigation relied in this regard shows that allegation of subletting was strongly denied by the tenant. Before institution of rent case the appellant had served notice on respondents 1 to 5 alleging subletting which was evasively replied. In the written statement filed by respondents 1 to 5 before the Rent Controller the subletting was denied. The respondents 1 to 5. And 9 did not appear in the witness-box in support of their pleas. In these circumstances the conclusion of 1st appellate authority that the appellant and his predecessor were aware of the subletting but took no steps is based on no evidence, There is no denial of the fact that respondent No, 9 is paying rent in respect of the 1st floor premises to respondents 1 to 5. 1, therefore, hold that the appellant had succeeded in proving subletting of premises to respondent No, 9 by respondents 1 to 5 without his consent and therefore the Rent Controller rightly ordered ejectment of respondents 1 to 5 and 9 from the premises. The reversal of the finding of Rent Controller by the 1st appellate authority on this issue was therefore not justified. Mr. Khalid Ishaque, lastly contended that the findings of fact arrived at by the 1st appellate authority is binding on this Court in the second appeal. The contention of the learned counsel is equally without force. The scope of interference by a second appellate Court with the findings of facts has been defined by the Supreme Court in the case of Madan Gopal v.
Maran Bepari (1) as follows :- "The legal position does not admit of any doubt that a concurrent finding of fact reached by the lower Courts will not be disturbed by the High Court in second appeal even if it disagrees with that finding on its own view of the evidence, although the concurrent finding of the lower Courts may appear to be grossly erroneous, unless, as laid down in subsection (c) of section 110, the error or defect discovered is of a substantial character pertaining to the procedure as provided by the Code or by any other law for the time being in force which may possibly have produced an error or defect in the decision of the case upon its merits. Interference would also be justified if the decision of the lower Courts is found to be contrary to law or some usage having the force of law or has, falled to determine some material issue of law or usage having the force of law. If the finding of fact reached by the first appellate Court is at variance with that of the trial Court, the former will ordinarily prevail, although it would not possess the same value or sanctity as a concurrent finding, Such a finding by the lower appellate Court will be immune from interference in second appeal only if it is found to be substantiated by evidence on the record and is supported by logical reasoning, duly making note of the reasons adduced by the first Court which have been disfavoured in the contrary finding. The finding being at variance with that of the trial Judge, the two will naturally come in for comparison for their comparative merits in the light of the facts of the case and the reasons on which the two different findings have respectively proceeded. If the finding of the first appellate Court cannot be supported on the evidence on record or if it has failed to take into account a material piece of evidence or if it does not reveal a logical basis for differing from the finding of the trial Court, or is otherwise found to be arbitrary or capricious, it will have to be rejected in second appeal."
I have already held that the reversal of the findings of Rent Controller by the 1st appellate authority is based on misreading of evidence and is also not supported by the evidence on record. I, therefore, accept this appeal, set aside the order of 1st appellate authority and grant ejectment of respondents on the ground of subletting of 1st floor of the demised premises I may however, clarify that while executing the order of ejectment passed in the case the Rent Controller will not dispossess respondents 6 to 8 physically and will give only symbolic possession of the premises in occupation of respondents 6 to 8 as these respondents admittedly are in occupation of the
(1) PLD 1969 SC 617 portions in the demised premises with the consent of the appellant. With these observations the appeal is accepted to the extent indicated above but there will be no order as to costs. The respondents are allowed 4 months' time to vacate the premises.