' This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, arises out of an application under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, filed by respondent No,1 against the petitioner and respondents Nos.4 and 5 on 4th of December, 1986, in which the eviction of the petitioner was sought from the shop in question on the sole ground that the petitioner had sublet the premises to respondents Nos.4 and 5 without the consent of the landlord. In the reply filed by the petitioner, he denied that respondents Nos.4 and 5 were his sub- tenants but on the other hand stated that they were his employees and have since left his employment. The learned Rent Controller framed the following issues arising out of the pleadings of the parties:-
(1) Whether the respondent has sublet the property in dispute? OPA
(2) Relief.
' In support of his case, respondent No,1 examined Allah Wadhaya and Walayat Ali, as A.W.1 and A.W.2. In rebuttal, the petitioner produced Haji Muhammad Daud as R.W. 1 and appeared himself as R.W3. He also examined Allah Wadhaya, whose statement had already been recorded as A.W. 1, as his witness and his testimony for the second time was recorded as R.W.2.
2. On the basis of the evidence led before him, the learned Rent Controller came to the conclusion that the subletting was proved. He, therefore, proceeded to direct the eviction of the petitioner and respondents Nos.4 and 5 from the shop in question. Aggrieved by this order, an appeal was filed by the petitioner, which was dismissed by the Additional District Judge, Sialkot, on 30th of July, 1990.
3. Two contentions have been raised by Malik Muhammad Nawaz, Advocate, learned counsel for the petitioner, first that it stands admitted on the record that the petitioner all along remained in possession of the premises and, therefore, there was no question of any subletting. According to the learned counsel, subletting can only be said to have taken place if the tenant walks out of the premises and instead inducts sub-tenants into possession. Reliance in this respect was placed on Motal Bai v. Abdul Aziz and others (PLD 1968 Karachi 635) and Nasir Mahmood v. Mustajabi Begum (1983 CLC 2872). The second contention of the learned counsel for the petitioner is that after the filing of the ejectment petition, respondent No,1 entered into a fresh agreement of tenancy with the petitioner on 1st of January, 1987, and in view of this subsequent agreement, the ejectment petition became infructuous and was liable to be dismissed as such.
4. The learned counsel appearing on behalf of respondent No,1 has controverted both these contentions by submitting that in law it is not necessary that the landlord should cease to occupy the entire premises but even subletting of a part of the premises is prohibited by the Punjab Urban Rent Restriction Ordinance, 1959. The learned counsel has relied upon Masroor Hassan and another v. Abbas Ali Khan (1981 CLC 660) and Mst. Amna Bi and another v. Hafiz Muhammad Taqi (1990 CLC 984).
As regards the second contention of the learned counsel for the petitioner, it was pointed out by the learned counsel for respondent No,1 that no such plea was raised in the written statement nor was any issue framed in this behalf and as such, this question cannot be adjudicated upon in these proceedings. It was argued that the so-called agreement was just a reproduction of the terms of tenancy already agreed between the parties and did not have the effect of creating a new agreement of lease.
5. After hearing the learned counsel for the parties and perusing the available record with their assistance, there appears to be no justification for interfering with the impugned orders. The question as to whether respondents Nos.4 and 5 were the employees or sub-tenants of the petitioner stands concluded by concurrent findings of fact recorded by the Tribunals below. Even otherwise these fmdings are in accord with the evidence and I am not persuaded to take a view different from that taken by the Appellate Court and the Rent Controller. It was noted by the Additional District Judge that the petitioner was running the business of sale of yarn, whereas Ayub, respondent, was carrying on the business of Auto shop. The evidence produced by the petitioner was also discarded as being inconsistent.
6. Both the Courts below have rightly taken the view that once it was admitted by the petitioner that respondents Nos.4 and 5 were using the premises in dispute, the onus to show the capacity in which they were working, if not as sub-tenants, shifted to the petitioner (see Masroor Hassan and another v. Abbas All Khan (1981 CLC 669) and Mst. Amna Bi and another v. Hafiz Muhammad Taqi (1990 CLC 984). Apart from the statements of the petitioner and Haji Muhammad Daud, father of respondents Nos.4 and 5, which were disbelieved by the Rent Controller and the Additional District Judge, no other evidence was led to prove that respondents Nos.4 and 5 were employees and not sub-tenants. R.W.2, Allah Wadhaya, a witness produced by the petitioner himself admitted in categorical terms that respondents Nos.4 and 5 were sub-tenants of the petitioner. In this state of evidence, it cannot be argued with any success that the findings recorded by the Courts below are not justified.
7. Now reverting to the contention of the learned counsel for the petitioner that in order to prove sub-tenancy, the landlord must show that he had ceased to occupy the premises at all which were being wholly used by the sub-tenants, suffice it to say that this argument is contrary to the provisions of section 13 (2) (ii) (a) of the Punjab Urban Rent Restriction Ordinance, 1959, which provides that a tenant shall be liable to eviction if he has, without written consent of the landlord sublet the entire building or any portion thereof. Consequently, even if a part of the rented premises is sublet, the tenant can be ejected from the entire premises. It may be mentioned that in Mst.
Amna Bi's case supra, the sub-tenants were using the premises alongwith the tenants which was held to be an actionable wrong. The reliance of the learned counsel on Motal Bai v. Abdul Aziz and others (PLD 1968 Karachi 635) and Nasir Mahmood v. Mustajabi Begum (1983 CLC 2872) is misconceived, for the dispute in the said cases was as to whether a tenant by entering into partnership for running business in the shop can be said to have sublet the premises but no such question arises in the present case and the two cases are, therefore, clearly distinguishable.
8. As regards the second contention of the learned counsel for the petitioner that there was a fresh agreement of tenancy, it is not denied by the learned counsel that no such plea was raised in the written reply filed before the Rent Controller nor was any issue framed in that behalf. The learned Additional District Judge was, therefore, justified in not allowing the petitioner to agitate this matter.
Even otherwise as held by the lower appellate Court, the terms of tenancy were in no manner changed and the agreement was merely a reproduction of the terms already agreed between the parties. It is also noteworthy that no application was made by the petitioner to amend his written statement so as to raise the plea now sought to be agitated.
For the reasons aforesaid, there is no force in this petition which is dismissed, leaving the parties to bear their own costs. The petitioner is allowed two months' time to vacate the premises in dispute.