1. MUHAMMAD AFZAL ZULLAH, J.--This appeal through leave of the. Court is directed against the judgment dated 23-1-1983 of the Lahore High Court; whereby a writ petition arising out of an urban rent control (cantonments) matter filed by the respondent landlord against the appellate judgment whereby the ejectment order passed against the appellants had been set aside, was allowed and the order of the Rent Controller directing ejectment of the appellants on ground of default in payment of rent and also subletting, was restored.
2. Leave to appeal was granted to examine whether the High Court should have interfered with the appellate order in exercise of its jurisdic--tion and whether in doing so it had correctly followed the law laid A down by this Court in Muhammad Sharif and another v. Muhammad Afzal Sohail etc. PLD 1981 SC 246.
3. We have heard both the learned counsel at length. The appellate Court found it as also that there was a default in payment of rent for to months. But the learned appellate Court treating it as insignificant in the circumstances of the case exercised discretion in favour of the tenants. That being so the interference by the High Court with the exercise of discretion by the appellate Court, it appears, was not justified. Hence there B being no justification for interference by the High Court in exercise of its writ jurisdiction, for that matter the impugned judgment would be, liable to be set aside. But the matter does not end here. The Rent; Controller had ordered the ejectment of the appellants on the ground of subletting also. This part of the case rests on the plea of the' respondent when filing the ejectment application in 1974 that Ghulam Abbas appellant No.1 had by then left for England and had transferred the shop in question as also the lease rights to his brother Ghulam Mustafa appellant No. 2, as also on the plea of the appellants that although Ghulam Abbas has been going abroad at intervals of the and had been running the shop through his brother Ghulam Mustafa, there was no actual transfer of the shop or lease rights to Ghulam Mustafa. Ghulam Abbas remained in England since 1974 up to 1977. He did not appear before the learned Rent Controller so as to make any, statement regarding his visits abroad. He is present today and on Court questions has stated that he remained out of Pakistan from 1969 to 1972, from 1974 to 1977 and from 1977 to 1983.
4. The perusal of the record and the admissions of Ghulam Abbas appellant in this Court with regard to his stay abroad shows that the shop is being run by Ghulam Mustafa appellant alone. The next question whether he, was doing so as an agent of Ghulam Abbas or as sub-tenant could be resolved, amongst others, by taking into consideration the deposition made by Faqir Hussain respondent landlord in this behalf.1 He deposed that Ghulam Mustafa prior to the departure of his brother for England was running another shop jointly with another brother (Ghulam Abbas and Ghulam Mustafa are brothers inter se) and that on account of the departure of Ghulam Abbas for England he handed over the shop and the lease rights to Ghulam Mustafa who then gave up to join business with his other brother.
5. The learned District Judge when coming to the conclusion that it was not a case of subletting misread this part of the evidence. In fact the learned Judge himself had diluted the effect of his view about subletting by adding that the landlord had acquiesced in this at of transfer by not agitating the matter for nearly 4 years prior to 1974, out of which period as is apparent Ghulam Abbas had stayed abroad for nearly 3 years. In fact the learned Judge was of the view that the respondent landlord was, as he put it "estopped" from putting forward the plea of subletting on account of the afore-stated facts about the visits abroad of Ghulam Abbas appellant.
6. Keeping in view all these circumstances including the admissions of Ghulam Abbas appellant before this Court regarding his visits abroad it was a clear case of subletting. Reliance by the High Court on question of law regarding subletting on the decision of this Court in M/s Premier Mercantile Service and another v. S.M. Yunus and 2 others PLD 1982 SC 79 in the facts and circumstances of this case was fully justified.
7. Learned counsel for the appellants laid stress on the conduct of the respondent landlord -as has been done in the impugned judgment and has urged that the silence of the respondent for nearly 4 years was sufficient ground for the appellate Court to have exercised discretion against the landlord and if the High Court could not interfere with the exercise of discretion by the appellate Court in matter of default its interference in matter of subletting was equally unjustified as both the grounds under the Cantonments Rent Restriction Act 1963 fall within the discretionary field of the Rent Controller.
8. On face the argument is attractive but on deeper scrutiny it loses force because the learned District Judge 'exercised the so-called discretion against the landlord without taking into account his explanation elicited by the appellant side in cross-examination that he having shifted his place of business to another far of city could not become aware of the exact arrangement between the to appellants. Thus the exercise of discretion if at all it was so by the learned District Judge is based on non-consideration of a vital piece of evidence. The High Court could have accordingly interfered with in its writ jurisdiction. And in this behalf the to aspects of the case, one relating to default and the other of subletting become separable.
9. In the light of the feregoing discussion while agreeing with the learned counsel for the appellants that the High Court was not justified in interfering with the exercise of discretion by the appellate Court on question of default in exercise of its, writ jurisdiction, we coo not find any serious infirmity in so far as the operative part of the decision in the impugned judgment on the question, of subletting is concerned. That being so the appellants were rightly found liable to ejectment on ground of subletting. This appeal accordingly is dismissed. There shall be no order as to costs.
10. The learned counsel for the appellants has sought the to vacate the premises. On the concession 9f 4 months given by learned counsel for the respondent landlord and on an undertaking given by the learned counsel for the appellant after consulting his client that vacant possession shall be handed over to the respondent landlord on or before 13th of July, 1985 without any process of execution and that the rent would be paid in the, the said the is allowed to the appellants to vacate the premises.