' This appeal arises out of ejectment proceedings initiated by the respondents against the appellants for their eviction from Shop No, 1679/1, Chhota Bazar, Rawalpindi Cantt. The petition was accepted by the learned Rent Controller, Rawalpindi Cantt. Vide his order dated 17-7-1990. The appellants were allowed time for 60 days from the date of the order to vacate the disputed premises.
2. Briefly stated the relevant facts of the case are that the respondents instituted the ejectment petition against Nazir Ahmed, deceased (now represented by appellants No,1 to 7) and Khalid Mahmood, appellant No,8 on the ground of default (from April, 1986 to October, 1986), subletting of the premises by Nazir Ahmed, deceased to Khalid Mahmood, appellant and setting up of a show case by the side of the shop in contravention of clause 10 of the lease deed. The shop was rented out to the tenants through rent deed executed on 29-3-1978 at the monthly rent of Rs,600. The tenants paid a sum of Rs,50,000 as advance, out of which Rs,300 were adjusted every month towards the monthly rent and the tenants used to pay Rs,300 in cash and obtain receipts from the landlords.
3. On the pleadings of the parties the trial Court framed the following issues:--
(1) Whether respondent has defaulted in the payment of rent since April, 1986? OPP
(2) Whether the respondent has sublet the property to respondent No,2? OPP
(3) Whether the respondent has done such acts as to materially impair the value and utility of the suit property? OPP
(4) Relief.
4. In order to support their case the respondents/landlords produced 5 witnesses namely.Aziz Khan P.W.1, Muhammad Siddiq P.W.2, Ishtiaq Ahmed P.W.3. Muhammad Yasin P.W.4 and Muhammad Iltaf, Revenue Collector P.W.5. They also produced documents Ex.P.1 (rent deed), P.2 (certificate issued by the Executive Officer, Rawalpipdi showing payment of professional tax by Khalid Mahmood). The respondents produced three other documents which were marked as X,Y & Z. Document marked X is the income tax return filed by Khalid Mahmood appellant whereas Y & Z are cash-memos issued by him. The appellants resisted the petition and produced Pervaiz Akhtar R.W.1, Muhammad Amin R.W.2, Khalid Mahmood R.W.3 and Nazir Ahmed R.W.4 in support of their case. They also produced documents Ex.R.1 to R.79 (the rent receipts).
5. The learned Rent Controller decided issues No,1 and 2 against the appellants and ordered their eviction vide impugned order dated 17-7-1990.
6. The appellants learned counsel urged that tenancy was created on the basis of rent deed Ex.P.1 but it did not embody all the, conditions governing the relationship between the parties. He submitted that a huge amount of Rs,50,000 was obtained by the landlord by way of advance, out of which Rs,300 per month were to be adjusted towards the rent and the appellants had to pay only Rs,300 in cash every month. The appellants have been regularly paying the rent and never committed any default. He submitted that even now an amount exceeding Rs,20,000 was held by the respondents as advance rent. Hence, no wilful default on the part of the appellants was proved on the record. He further submitted that Nazir Ahmed, deceased tenant had been carrying on the business in the premises himself under the name and style of Shahid Gift Centre. He never sublet the shop to Khalid Mahmood and that the findings of the trial Court to the contrary were not sustainable. In support of his contentions he cited number of judgments including the following:--
(1) Muhammad Yousaf v. Abdullah PLD 1980 SC 298.
(2) Karamat Hussain v. Kazi Ali Muhammad 1986 SCMR 441.
(3) Malik Ghulam Rasool v. Muhammad Ishaq 1982 CLC 1014.
(4) Masjid-e-Humra v. Zamir Ahmed 1982 CLC 2193.
(5) Mahmood and 6 others v. Haji Tajdin and 8 others 1984 CLC 97.
(6) Karimullah v. M. Gulzar Butt 1986 CLC 1653.
' He further submitted that the judgments reported in PLD 1988 SC 190 and PLD 1988 SC 228 were distinguishable and not applicable to the facts and circumstances of the present case. He explained that in both the said judgments the advance was proved to be security amount not adjustable towards the rent.
6-A. On the other hand learned counsel for the respondents urged that the record clearly showed that no rent was paid for the period from April, 1986 to October, 1986. He urged that the advance was security amount, hence the judgments in the cases of Zarina Khawaja v. Agha Mahboob Shah (PLD 1988 SC 190) and Syed Asghar Ali Imam v. Muhammad Ali (PLD 1988 SC 228) were applicable in the case. He further submitted that it was proved that Khalid Mahmood appellant No,8 was working at the shop and had paid professional tax as proprietor of Shahid Gift Centre as certified by the Executive Officer, Rawalpindi Cantt.
7. The respondents/landlords had suppressed the material fact in the ejectment petition that they had received a sum of Rs,50,000 as advance (rent) out of which half of the monthly rent i.e, Rs,300 was adjustable. This fact was brought to light in para 1 (on merits) of the written statement filed by the appellants before the learned Rent Controller. When Muhammad Siddiq, respondent No,1 appeared before the learned Rent Controller as P.W. 2, he admitted that he had obtained a sum of Rs,50,000 by way of advance and that Rs,300 per month were adjusted from the "security" towards the rent and that he used to issue receipt of Rs,300 to the tenant. He admitted that he had issued receipts (Ex.R.1 to R.79). He also admitted that on the said receipts he had noted adjustment of Rs,300 which was from the "advance rent". This admission is sufficient to prove that the amount of Rs,50,000 was received by the landlords/respondents as advance rent and not merely as refundable security. Muhammad Siddiq, respondent No,1 had also admitted that after making deductions at the rate of Rs,300 from the advance till March, 1986 a sum of Rs,21,200 was still lying with him. Hence the appellants cannot be held to be wilful defaulters even if they had not made payment of rent from April, 1986 to October, 1986. The landlord had still sufficient amount with him for adjusting rent of seven months therefrom. It appears that the landlords had agreed to adjust the entire monthly rent from the advance as stated by Pervaiz Akhtar, R.W.1. He stated that he had himself met Siddiq, respondent No,1 who asked him to inform Nazir, deceased not to pay the rent as he would adjust it from the advance rent. This part of the statement was not challenged in cross- examination. The judgments relied upon by the learned Rent Controller and also referred to by the respondents' learned counsel pertain to cases in which the advance was proved to be the security amount and not advance rent adjustable towards the monthly rent. In the present case the advance was not a security amount but an advance adjustable towards the rent. Hence the learned Rent Controller erred in law in holding appellants No,1 to 7 to be rent defaulteRs, I, therefore, reverse the findings of the learned Rent Controller on issue No,1. Now coming to issue No,2, the evidence on the record shows that the business was being carried on by Nazir Ahmed deceased in the disputed premises under the name and style of Shahid Gift Centre. The landlord/respondent No,1 had been regularly issuing rent receipts in the name of Nazir Ahmed deceased tenant. He does not appear to have objected at any stage- till the institution of the ejectment petition that the disputed shop had been sublet by the deceased respondent to Khalid Mahmood, appellant No,8. A tenant can run his business either personally or through his servant or other near relatives. Even if it is assumed that Khalid Mahmood, nephew of Nazir Ahmed used to sit in the shop and carry on business, it was not sufficient to show that he was a sub-tenant. Ishtiaq Ahmed produced by the respondent as P.W.3 stated that he was not aware whether Nazir Ahmed, deceased used to carry on business himself or he had sublet the shop to some body. Khalid Mahmood appeared as R.W.3 and clearly stated that his father had died in 1972 and that he left his studies in 7th or 8th Class and he alongwith his mother, brother and sister started living with his uncle Nazir Ahmed, who used to bear their expenses. He further stated that he had nothing to do with the tenancy of the shop. This part of his statement was also not challenged in cross-examination and would be presumed to have been accepted. The respondents tried to show that Khalid Mahmood used to pay professional tax anD that he was shown to be the proprietor of Shahid Gift Centre on the record of the Cantonment Board. The said entry appears to be doubtful because it was only against the disputed shop that name of the proprietor was entered. Muhammad Iltaf, Revenue Collector, who appeared as P.W.5 admitted that at page 144 of the relevant register no entry regarding the name of proprietor was shown against any other shop except the disputed one. This entry was in different ink and might have been got made by some interested party. At any rate the said entry cannot confer the status of sub-tenant on Khalid Mahmood, particularly when he himself disclaimed to be a sub-tenant and clearly stated that Nizar Ahmed, deceased was tenant and that he merely used to help him in the business. The trial Court was unduly impressed by the fact that Khalid Mahmood used to sit in the shop for the last 3/4 yeaRs, He being the nephew of Nazir Ahmed, deceased; could legitimately sit in the shop, help his uncle in his business and gain experience himself. The documents Exh. P.2, and mark X, Y and Z were not proved in accordance with the law and no reliance could be placed on the same. Even if considered, the said documents show payment of taxes and issuance of cash-memos by Khalid Mehmood appellant No,8. He could pay the taxes on behalf of Shahid Gift Centre = the business concern run by Nazir Ahmed, deceased and even issue cash memos to the customers in the absence of his uncle. Hence, I also reverse the finding of the trial Court on issue No,2. On issue No,3 the learned Rent Controller had held that the show-case affixed with a wall of the shop did not impair its value and utility, rather it had added something positive to its value and utility. After going through the relevant evidence I find that the trial Court had rightly decided issue No,3.
8. For the foregoing reasons I accept this appeal and set aside the order dated 17-7-1990 passed by the learned Rent Controller. The parties are left to bear their own costs.