1. This First Rent Appeal is directed against the order dated 6-4-1986, passed by the learned VIth Senior Civil Judge and Rent Controller Karachi (West), by which the ejectment application filed by the respondent on the ground of sub-letting was allowed.
2. The brief facts giving rise to the present appeal are that respondents Nos. 1 to 4 filed an ejectment application against the appellant and respondent No. 5 stating therein that the appellant /opponent No. 1 was their tenant in respect of the Shop No. 103 on monthly rent of Rs.
60. The opponent No. 1 committed default and, therefore; an ejectment application was filed against him and the same was pending. That in the month of September, 1985 the opponent No. 1 has sub-let the premises in dispute to opponent No. 2 without written permission of the applicants. The opponent No. 1 was served with a written notice dated 22-9-1985 but he gave evasive reply. That at present the opponent No. 2 and respondent No. 5 were carrying on business in the shop in question as the same has been let out to him by the opponent No. 1 without their permission or consent.
3. The opponent No. 1/appellant filed a written statement in which he denied the allegations regarding sub-letting. According to him, the opponent No. 2 had his own separate shop bearing No. 87 situated in Khalid Market just opposite the shop in dispute. The opponent No. 2 used to supervise the decoration of his shop from the shop of opponent No. 1 while his shop was not ready.
4. That the applicants were in the habit of filing false and mala fide cases against their tenants. That since they had come to know that they are likely to loose their previous Rent Case No. 174 of 1985, therefore, the present case was filed. The opponent No.2/respondent No. 5 did not file his written statement, and therefore, ex parte order was passed against him. From pleadings of the parties the following issue was framed:- "Whether the opponent No. 1 had sub-let the premises in question to opponent No. 2?
5. On the other hand, the appellant examined himself and has produced original photograph as Exh.
6. 5-A and marriage investigation card as Exh. 6/2. He also examined one Rias Ahmed in support of his version.
7. After taking into consideration the evidence led by the parties the learned Rent Controller decided the above issue in affirmative and consequently ordered ejectment of the appellant. The present appeal is directed against the said order.
8. Abdul Oadir respondent No. 1 has stated in his affidavit in evidence that opponent No. 1 had sub-let the rented shop to opponent No. 2 during September, 1985, without the written permission of the applicants, therefore, they served the opponent No. 1 with a legal notice dated 22-9-1985 but he gave evasive reply. He has produced the copy of notice as Annexure `A' and reply as Annexure `B'. It was further stated that opponent No. 2 had given advertisement for the sale of shop in the local daily newspaper dated 18-8-1985 and the cutting has been produced as Exh. `B-1'. He has produced three photographs as Annexures `C', `D' and `E' in order to show that opponent No. 2 was selling his cloth to the customers on the shop in question. The opponent No. 1 was also seen with his dopattas on one side of the shop. According to him, in fact, the major portion of the shop has been handed over to opponent No. 1, where he was carrying on his business. He has denied that opponent No. 2 was temporarily sitting or that he was supervising from there the decoration of his shop.
9. Malik Ghulam Muhammad witness of the respondent has deposed that. On 21-9-19$5 he had gone and visited Shop No. 103 in Khalid Cloth Market, Karachi and had inquired about the price of Saris.
10. He found Ikram alias Chan opponent No. 2 doing business in the said shop and it was he who offered different Saris to him, while he was present at the said shop and was selecting the Saris, three photographs were also taken and Annexures `A', `B' were the same. According to him, the opponents Nos. 1 and 2. Were doing business in the said shop. In cross-examination he has stated that he is living at Defence Society. He was serving in Agricultural Department at Karachi otherwise he belongs to district Gujrat. His office was situated at 3-A, 1st Street, Defence Housing Society, Phase 1, Orangi Road, Karachi, his office was 15 K.M. Away from Liaquatabad. He did not know the applicant. The opponent was not known to him previously but he was known to him on 21-9-1985, when he went to purchase Sari. He went to the above market, as Saris of high quality are sold there.
11. On 21-9-1985 was working day and he was on leave from his office. He had also gone to other markets for inquiring about the Saris quality. He did not see the number of shop in the shop. But he inquired about the number of shop from its shopkeeper Ikram. In that shop two shopkeepers were present. He and his two other friends were standing there at Shop No. 103. The applicant called them when they returned from the Shop No. 103.
12. Appellant Muhammad Yaqoob has stated in affidavit-in-evidence that he had never sublet the shop in dispute to opponent No. 2. The opponent No. 2 was a set up witness of the applicant which fact he did not know before the opponent No. 2 has a Shop No. 87 in the same market which is opposite to his shop. The shop of 'the opponent No. 2 was under decoration during the last month of 1985 when he casually used to come 'to sit at his shop for sometime to supervise the decoration work. He never kept goods in his shop or sold Saris in his shop as alleged. The witness Malik,Ghulam Muhammad is friend of the applicant and he usually visits the shop of, 'applicant alongwith Choudhary Rehmat A.I. The applicant had filed ejectment application due to business rivalry and wanted to eject him by hook or by crook. The opponent No. 2 was doing business in his own shop.
13. No photographs of his shop were taken and the photographs produced in Court are of the shop of the applicants themselves. The applicant had filed a rent case earlier on the ground of default but he could not prove the same and, therefore, this false case was filed. In cross-examination he has deposed that his shop is No. 103 while shop of opponent No. 2 is 87.
14. The opponent is selling Saris. It was not a fact that he had sub-let the shop or transferred possession to-opponent No. 2. It was also denied by him that the opponent No. 2 had kept his goods at the shop in 11-pute. The photographs are of the shop of applicant. '
15. I have. Heard Mr. Abdul Majeed Khan, Advocate appearing for the appellant, Mr. Muhammad Ismail Padhiar, Advocate appearing for the respondent, and have also gone through the R & P of this case.
16. It has been contended by Mr. Abdul Majeed Khan that no person from locality has been examined to show that the appellant had sub-let the shop in dispute to respondent No.5 or at least he had parted with possession of the same. The photographer who has taken snaps was not examined and the photographs produced in the Court do not show the shop number nor the date on which the same were taken was mentioned. According to him the applicant was still in possession of the shop and the ejectment application was filed mala tide. That the story as given in the application was unnatural inasmuch as if the shop as sub-let to respondent No, 5, he would not have approached the Court with an application dated 5-11-1985 that he had no concern with the shop in dispute and that his name might be dropped from the proceedings. According to him this fact clearly shows that respondent No. 5 had no interest m the shop m dispute. In support of his contentions the learned counsel has relied upon 1985 CLC 892 and 1984 CLC 2336.
17. Muhammad Ismail Padhiar, learned Advocate appearing for the respondent has contended that the stand taken by the appellant m his reply dated 1-10-1985 and the written statement were contradictory. The fact that opponent No.2/respondent No. 5 did not take interest or contest the matter, the ejectment application was rightly allowed by the Rent Controller. In support of his contentions, the learned counsel has relied upon 1986 M LD 917 and PLD 1983 Kar. 168.
18. I have considered the contentions of the learned counsel. The burden of proving the fact regarding sub-letting was, on the respondents. The evidence produced by him was unreliable. As far as the respondent himself was concerned, admittedly the relations between him and the appellant were strained which is clear from the fact that he had already filed ejectment case against the appellant on the ground of default. As far as witness Malik Ghulam Muhammad was concerned his evidence appears to be unnatural and unreliable inasmuch as he came from long distance and had left important markets like Mehboob Market, Paradise Market and other markets which are situated in between that place of A his residence and the market where the shop in question is situated. He has not given any reason as to why on that particular date he needed Saris and as to how he happened to go to the shop in question. Admittedly the shop No. Was not written either outside or inside the shop and he had gone to the shop in question for the first time and, therefore, his evidence that he had gone to shop bearing No.103 clearly shows that he was not a truthful and reliable witness. The circumstances that on that very day on which he happens to visit the shop in question photographs were taken goes a long way to show that everything was manoeuvred, with his connivance. He has himself admitted that he did not know the applicant then how the applicant came to know his name that he was one of the persons who was found purchasing Saris.
19. No shopkeeper from Khalid Market has been examined to show that the shop in fact was sub-let to respondent No.5 or at least the appellant had handed over the possession to the respondent No.5.
20. It is not the case of the applicant /respondents Nos.1 to 4 that the appellant had left the shop but, the evidence shows that he had allowed the respondent No.5 to sell Saris there, for which the appellant has given explanation and the same appears to be reasonable. The newspaper cutting produced by the respondents does not show that the respondent No.5 had actually sold away his shop but it only goes to show that a shop was available for sale in Khalid Market, Liaquatabad, Karachi. No evidence has been produced that the respondent No.5 'had actually sold away his shop.
21. 1984 CLC page 2336 it was observed by this Court that:-- "Merely because there was a board of another concern hanging outside or some of its business was being carried on in the said premises by its managing partner who was also partner of the tenant, held, there was no justification to treat that concern as sub-lessee. It was further observed that mere entering into partnership with other person, did not amount to transfer of tenancy rights in premises unless such rights are included in the partnership."
22. 1985 CLC page 892, it was observed that:-- "Except the statement of the appellant and the photograph, no independent evidence has been produced to show that the respondent has sublet the premises to anyone. The disputed premises is situated in a commercial area, and there may be various shops nearby but no independent witness has been produced by the appellant nor any genuine attempt has been made in this regard. The appellant had, therefore, failed to establish that the respondent had sublet the premises:'
23. 1988 MLD 917, it was observed that:-- "The entire evidence particularly' from cross-examination of tenant leaving impression that he was no more concerned with shop which was in exclusive possession of sub-lessee, held, in these circumstances, the only' conclusion that can be drawn is that tenant had sublet the rented shop and, therefore, the order of eviction on the ground of subletting was maintained and the appeal was dismissed."
24. With utmost respect the above decision is distinguishable and is not applicable to-the facts of the present case inasmuch as in the above-reported case the actual tenant did not take interest in the proceedings where as in the present case it is the tenant who has been contesting right, from lower Court to the appellate Court and, therefore, the above decision is not applicable to the facts of the above case.
25. PLD 1983 Kar. 168, relied upon by the learned counsel for -the appellant, the learned Judge of this Court had come to the conclusion that findings of the appellate Court that sub-letting took place with consent of, the landlord was not based on record and no logical basis ayailable for Ist apellate Court to differ with the findings of the Rent Controller and such finding was based on misreading of evidence. Even the observation of the Ist Appellate Court that landlord was aware of sub-letting but failed to take notice for 20 years was also not supported ,from the evidence and, therefore, the order of the Ist Appellate Court was set aside and the order passed by the Rent Controller was restored.
26. The facts involved in the above decision were totally different and the sub-letting was admitted.
27. However, a plea was taken that was with the consent of the landlord, which was repelled, and the ejectment was allowed. In the present case, the very fact of the sub-letting is disputed and the alleged sub--tenant/respondent No.5 has taken no interest in the proceedings nor contested the matter.
28. From the above factual as well as legal position I am of the considered view that respondents Nos.1 to 4 had failed to prove that the appellant had sub-let the premises in question to the respondent No.5, and, therefore, the appeal is allowed the order passed by the learned Rent Controller is set aside and the ejectment application is hereby dismissed.