' This is a first rent appeal filed by Syed Sultan Ahmed. There are two respondents in this appeal.
Niaz Muhammad is the landlord of the premises in question and respondent No,2, Shakil Ahmad is the real brother of the appellant. Respondent No,1, Niaz Muhammad, had filed a Rent Case No,3948 of 1977 against Shakil Ahmad (respondent No,2) as a tenant and the appellant Syed Sultan Ahmed was joined as a co-opponent in the capacity of sub-tenant. Shakil Ahmed, respondent No,2, was served with a notice of the rent case but he did not appear and the case against him proceeded ex parte. However, the appellant, Syed Sultan Ahmed, appeared and defended the proceedings. In his written statement, the appellant denied the allegations in the rent application. It was denied that the appellant was the sub-tenant. The appellant's case in his written statement was that he was real and actual tenant of the respondent No,1 since the premises were let out to him. On behalf of the landlord, his son-in-law, Shamsuddin, was examined. Apart from him, one Zafar Ahmed also gave evidence on behalf of the landlord on the point of personal requirement. As observed earlier, the case against Shakil Ahmed had proceeded ex parte before the Rent Controller. The appellant, Syed Sultan Ahmed, appeared as a witness and one Syed Reza Haider Abidi also gave evidence in support of the appellant. The rent application was allowed by order dated 22-12-1979 of the Rent Controller, Karachi, on the ground of subletting by respondent o.2 (the tenant) to the appellant. The ejectment application was rejected on the ground of default and personal requirement. Being aggrieved, the appellant Syed Sultan Ahmed has filed this first rent appeal against the landlord and the appellant has also joined his brother Shakil Ahmed as respondent No,2. Shakil Ahmed had been served through publication but he remained absent and no one has appeared on his behalf. I have heard Mr. S. Nasiruddin, learned counsel for the appellant and Mr. Nooruddin N. Ramzan, learned counsel for the respondent (landlord).
2. On behalf of the appellant alternate pleas were raised by Mr.S. Nasiruddin, learned counsel for the appellant. It was first contended that the appellant was the real tenant of respondent No,1 in respect of the premises in question. In the alternative, it was argued that subletting had not been proved and as such the ejectment order passed by the Rent Controller was liable to be set aside.
As regards the plea that the appellant was the tenant of respondent No,1, there is no evidence on record to establish such relationship. The evidence on record has established that Shakil Ahmed was the tenant of the premises in question. No doubt it has also been established that appellant Syed Sultan Ahmed was residing with Shakil Ahmed in the premises in question but from the evidence the appellant did not make out a case that relationship of landlord and tenant existed between him and respondent No,l. It was for the first time that rent was sent in November and December, 1976 by Sultan Ahmed in his name but the same was refused by respondent No,1.
Further, it may be observed that the case set up in the written statement that the appellant Sultan Ahmed was the real tenant of the respondent No,1 is not reiterated by Sultan Ahmed in his evidence. The case put up by Sultan Ahmed in his evidence was that he was living with his brother.
No serious attempt was made by Sultan Ahmad to establish that he was the tenant of respondent No,1. The contention raised on behalf of the appellant that he was the tenant of respondent No,1, therefore, cannot be accepted.
3. The alternate plea raised by Mr. Syed Nasiruddin, learned counsel for the appellant, was that the case of subletting had not been established. According to the learned counsel, the rent had been accepted by respondent No,1 up to September, 1976 and thereafter respondent No,1 wanted to increase the rent and as such did not accept the rent tendered to him. It was further contended that the wife and children of Shakil Ahmed have been residing continuously and only Shakil Ahmed h I been transferred from Karachi sometime in 1971 on account of exigency of service and as such Shakil Ahmed through his wife and children is still entitled to remain in the premises and the mere fact that the appellant was also residing in the premises does not prove that the premises had been sublet by Shakil Ahmed to the appellant. It was further contended by the learned counsel for the appellant that in the instant case no rent receipts were issued and the evidence had also come on record that respondent No,1 had been accepting the rent from a lady, presumably the wife of Shakil Ahmed, for a certain period, even after Shakil Ahmed was transferred from Karachi and no receipt or document was produced to show that Shakil Ahmed had sublet the premises to the appellant. In these circumstances, it was argued that in law no case for subletting had been made out by respondent No,l. Learned counsel for the appellant also relied upon 1980 CLC 1558, a decision of Mr. Justice Aftab Hussain of the Lahore High Court, in support of the proposition that unless there was a written document showing the subletting by the tenant to another person, the subletting is not proved under the provisions of the Rent Ordinance.
4. As regards the contention that the case had been filed as the respondent No,1 wanted to increase the rent, and rent tendered was not accepted by the appellant, suffice it is to observe that no such plea had been taken in the written statement. The defense taken on behalf of the appellant that wife and children of Shakil Ahmed have been residing in the premises in question has not been taken up in the written statement. As observed earlier, in the written statement, the plea that has been taken is that Sultan Ahmad was the real tenant. It is apparent from a perusal of the written statement and the evidence later on given by the appellant before the learned Rent Controller that contradictory positions have been taken on behalf of the appellant. Furthermore, in his own evidence the appellant has stated that the wife and children of Shakil Ahmed, when they come to Karachi, reside in the premises in question. This admission by the appellant in his evidence demolishes the case attempted to be set up on behalf of the appellant that the wife and children of Shakil Ahmed have been conti nuously residing in the premises in question. If Shakil Ahmed had retained the premises and the wife and children have been residing therein, it is strange why Shakil Ahmed did not choose to appear and defend the proceedings in the case. If he continued to be a tenant o if his family was residing in the premises he should have definitely been interested to defend the case to safeguard his position and status as a tenant of the premises in question. As observed, Shakil Ahmed did not enter appearance before the learned Rent Controller. Then in the present rent appeal Shakil Ahmed did not join the appellant as co-appellant but the appellant had to make him a co-respondent with the landlord. Thus, the evidence on record shows that Shakil Ahmed, the real tenant of the premises in question, vacated the premises and gave its possession exclusively to the appellant and this was done without any permission of the landlord.
5. As observed earlier, it was contended by the learned counsel for the appellant that for proving the factum of subletting it is necessary under the law that a document be put on record showing receipts of the rent by the tenant from the sub-tenant and as this was not done in the instant case, subletting had not been proved. The case cited by the learned counsel for the appellant 1980 CLC 1558 does not support the proposition advanced by the learned counsel for the appellant. It was not decided by Mr.Justice Aftab Hussain in that case that without written evidence of sub-tenancy, subletting can never be proved.
6. It was pointed out by Mr.Nooruddin N.Ramzan, learned counsel for the respondent No,1, that a change in law has been brought about by the Sind Rented Premises Ordinance, 1979, inasmuch as under section 15 (2)(iii)(a) a tenant can be ordered to be ejected if he has, without the written consent of the landlord, handed over the possession of the premises to some other person.
Previously, under the 1959 Rent Ordinance the relevant provision was section 13(2)(ii)(a) which gave a cause of action to a landlord to seek ejectment of a tenant on the ground that the tenant had, without the written consent of the landlord, transferred his right under the lease or sublet the entire building or rented land or any portion thereof. It was contended by Mr.Nooruddin N.Ramzan that the present rent case had been filed under the 1979 Rent Ordinance and as it had been established that the possession of the premises has been handed over by Shakil Ponied, tenant, to the appellant, a case for ejectment had been made out by respondent No,1. It is not necessary in this judgment to consider whether any change has been brought about by the 1979 Rent Ordinance in so far as the ground of subletting or assignment is concerned. In the present case the evidence proves that the possession of the premises in question was handed over by Shakil Ahmed, the real tenant, to Syed Sultan Ahmed, the appellant (sub-tenant) and from the evidence it has also been established that the premises were assigned by Shakil Ahmed to the appellant. I see no ground for interference with the order of the Rent Controller in ordering ejectment of the appellant on the ground of subletting.
' On the two other grounds, the default and personal requirement, which were not accepted by the Rent Controller, cross-objections have been filed in the present appeal by respondent No,1.-- However, it is not necessary to consider these cross-objections, as the order of the Rent Controller is maintained.
7. F.R.A. No,73 of 1980 is dismissed with costs. The appellant is, however, granted time till 31-12-1983 to vacate the premises.