' The appellant has called in question the order passed by the learned Controller dated 13-12-1988 declining to order eviction of the respondents from the demised premises on the ground of subletting.
2. The facts of the case, briefly stated, are that the appellant is the owner of premises bearing No,173/O/2 situated in Pakistan Employees Cooperative Housing Society, Karachi which consists of ground floor and first floor. Respondent No,1 was the appellant's tenant in respect of the ground floor of the building at a monthly rent of Rs,550 which was subsequently enhanced by mutual consent of the appellant and respondent No,1 to Rs,1,500. The first floor of the building had been rented out to one Haji Ahmed-Bin-Yaman but subsequently ejectment proceedings were instituted by the appellant against the said tenant and ultimately the appellant succeeded and the said tenant was ejected from the first floor of the building.
3. Respondent No,1 left Pakistan temporarily in October, 1982 and left her daughter (respondent No,2) in possession of the premises in her occupation.
4. After the first floor of the building was vacated by the said tenant, Haji Ahmed-Bin-Yaman, respondent No,2 was requested by the appellant to exchange the premises on the first floor with the appellant and thereafter respondent No,2 occupied the premises on the first floor of the building.
5. The ejectment proceedings were instituted by the appellant against respondent No,2 in October, 1984 as it was alleged that respondent No,1 had sublet the premises to respondent No,2.
6. The application was resisted on behalf of the two respondents and a joint written statement was filed by the attorney of respondent No,1 who was the husband of respondent No,2 and respondent No,2. The said respondents in their written statement denied that the premises had been sublet by respondent No,1 to respondent No,2. It was also denied that respondent No,1 had left Pakistan permanently. It was further contended on behalf of the respondents that respondent No,2 who was living in the premises on the ground floor since 1970 continued to be in occupation of the same till such time in August, 1983 when she shifted at the request of the appellant to the first floor of the building.
7. The learned Controller on the basis of the aforesaid pleadings of the parties framed issues as follows:---
(1) Whether Opponent No,2 is sublettee as alleged by the applicant?
(2) What should the order be?
8. The appellant examined Muhammad Ashiq Ali, her attorney, Farida Begum and Miss Azra Butt as her witnesses before the learned Controller whereas the respondents examined Pervaiz Iftikhar, the attorney of Opponent No,1, Opponent No,2 and Aijaz Ahmed as his witnesses. On the basis of the evidence of the said witnesses, the learned Controller came to the following conclusion:--- " There is nothing in evidence to show if after departure of Opponent No,1 to abroad, the Opponent No,2 had even left the demised premises. The Opponent No,2 being the real daughter of the Opponent No,1 (the original tenant) has right to stay in the demised premises as a tenant. Apart from above even the applicant had been accepting rent from the Opponent No,2 after the departure of Opponent No,1 which shows that applicant accepted the Opponent No,2 in place of Opponent No,1. Furthermore the mutual exchange of the premises between the Opponent No,2 and applicant also indicates the consent of applicant to continue stay of the Opponent No,2 in the demised premises. It is held in 1986 CLC 713 that where person to he tenant in occupation of premises with knowledge and consent of landlord, the tacit consent of landlord and his legal heirs would raise assumption that condition of writing had been waived by landlord. It is further held in 1975 CLC (sic) that where the landlord knowing subletting and unauthorised construction and accepting rent from tenant without any protest, not filing any ejectment proceeding within reasonable time held waived subletting and his right to evict tenant:--- ' From the above discussion I am of the view that no subletting is proved. Point is answered in negative."
9. Mr. Habib-ur-Rahman, learned counsel for the appellant has, firstly, contended that respondent No,1 had abandoned her tenancy rights in favour of respondent No,2 and therefore, the latter occupied the premises as sub-tenant of respondent No,1 and secondly, that respondent No,1 neither filed any written statement nor did she give evidence before the learned Controller, therefore, the evidence given by the appellant went unrebutted. Consequently, according to the learned counsel for the appellant, the learned Controller was in error while dismissing the application of the appellant. Support has been sought by the learned counsel from Muhammad Ahmed v. Mrs. C.M. Lovacach 1986 CLC 2016, Syed Sultan Ahmed v. Niaz Muhammad 1984 M LD 834, Muhammad v. Abdur Rehman PLD 1976 Kar. 612 and Ghazi Inam Nabi Pardesi v. Dr. Maj. Sayed Ahmed Hasan PLD 1975 Kar.
530.
10. In Muhammad Ahmad v. Mrs. C.M. Lovacach it was held that status of attorney conferred by a tenant on a new occupant of the premises would not explain position of the attorney unless such attorney could establish that he had such connection or relationship with the tenant that his position in the premises could be regarded as not his own but that of the tenant. It was further held that failure to prove nature of possession by attorney of the tenant would corroborate statement of the landlord that the attorney had been transferred possession as a sub-lessee. In Syed Sultan Ahmed v. Niaz Muhammad, the sub tenant in possession had stated in his evidence that wife and children of the original tenant whenever they came to Karachi resided in the premises in question.
However, the case. against the original tenant proceeded ex parte. It was held that the real tenant of the premises in dispute had vacated the same and had given its possession exclusively to the sub-tenant without any permission of the landlord. The cases, Muhammad and 8 others v. Abdul Rehman and Ghazi Inam Nabi Pardesi v. Dr. Maj. Syed Ahmed Hasan do not support the learned counsel's contention directly as it was held in the former that tenancy passes to the heirs of the tenant after his death and a person in possession of the premises who fails to establish that he has derived his title under the deceased tenant would be nothing but a trespasser and in the latter it was held that tenancy cannot be inferred but must be proved and a person in absence of a statutory provision can become a tenant only with the consent of the landlord.
11. So far as the first contention of Mr. Habib-ur-Rahman is concerned, no doubt, it was established by the appellant that respondent No,2 had proceeded to South America in October, 1982, but since then she had not returned to Pakistan and it was also established that respondent No,2 was in occupation of the premises on the ground floor and subsequently on the first floor but nothing can be spelled out from the evidence of the witnesses produced on behalf of the appellant that the premises had been sublet by respondent No,1 to respondent No,2. Admittedly, respondent No,2 is the daughter of respondent No,1. Although the case of respondent No,2 is that she was in occupation of the premises since 1970 when she was unmarried and was living with her mother and still after her marriage in 1975 she continued to be in occupation of the premises but even if the contention put forth on behalf of the appellant that she had left the premises in question after her marriage and was residing in another house adjacent to the said building is accepted, there is nothing on record of the case from which it can be spelled out that the demised premises had been sublet by respondent No,1 to respondent No,2. No doubt respondent No,1 was not in physical possession of the premises after she left Pakistan in October, 1982, but such is not a condition essential for creation of the tenancy. The definition of the term "tenant" appearing in section 2(j) of the the Sindh Rented Premises Ordinance, 1979 is as under:---
(j) "'tenant' means any person who undertakes or is bound to pay rent as consideration for the possession or occupation of any premises by him or by any other person on his behalf and included---
(i) any person who continues to be in possession or occupation of the premises after the termination of his tenancy; ' heirs of the tenant in possession or occupation of the premises after the death of the tenant."
The definition of the term "tenant" clearly shows that a person who undertakes or is bound to pay rent as consideration for the possession or occupation of any premises by him or by any other person on his behalf would be a tenant within the meaning of the said definition given in the said Ordinance. The case of respondent No,2 is that she was occupying the premises on behalf of her mother, respondent No,1 and was paying rent to the appellant on her behalf. Therefore, for all intents and purposes, the first respondent was the tenant of the appellant in the demised premises.
Mr. Habib-ur-Rehman, in the first instance, has referred to the second part of the definition of the term "tenant" which shows that heirs of the tenant in possession or occupation of the premises after the death of the tenant are also included in the said defmition but the second part of the definition in view of the circumstances of the case is not attracted to the facts of the present case.
It is not the case of respondent No,2, that she is in occupation of the premises as an heir of respondent No,1 but she has throughout maintained that respondent No,1 continued to be the tenant of the demised premises and she was in occupation thereof on her behalf. Mr. Habib-ur- Rehman has also referred to the provisions of section 15(2)(iii) which show that a tenant who has, without the written consent of the landlord, handed over the possession of the premises to some other person would be liable to eviction from the demised premises on such ground but in order to prove subletting it must be established that the tenant has given up or relinquished all his rights of tenancy and some other person has stepped into his shoes and enjoys such rights independently of him. However, in the present case, nothing can be spelled out from the evidence adduced on behalf of the appellant to show that respondent No,2 has completely stepped into the shoes of respondent No,1 or is in occupation or possession of the premises as a tenant thereof. The mere fact that respondent No,1 has remained out of Pakistan since 1982 cannot by itself lead to an inference that the premises have been sublet by her to respondent No,2 because as pointed out earlier the latter is the daughter of the former. Even in the case of Muhammad Ahmed v. Mrs. C.M.
Lovacach it was observed that relationship between the tenant and the person in occupation of the premises would be a relevant factor to determine whether such occupation of the premises is as a tenant or in his own right or merely on behalf of the original tenant. It would, therefore, depend upon the circumstances of each case. Consequently, on the basis of the evidence, it is not possible to hold that respondent No,2 is the sub-tenant of respondent No,1. The cases relied upon by Mr. Habib-ur-Rehman are clearly distinguishable and are, therefore, not attracted to the circumstances of the present case.
12. The next contention of Mr. Habib-ur-Rehman is that respondent No,1 neither filed any written statement nor did she appear before the learned Rent Controller to give evidence in the case. In this regard, it may be pointed out that admittedly the respondent No,1 had executed a power of attorney in favour of her son-in-law, Pervaiz Iftikhar, who had been fully authorised to institute and defend all the legal proceedings, to sign applications, plaints, written statements, execution applications and such other documents as may be lawfully required from time to time to present the same before the Court or officer concerned. The said attorney had also been authorised to appear and act on behalf of respondent No,1 in all the Courts, Civil, Criminal and Revenue, having original as well as appellate jurisdiction, etc. Consequently the said attorney was competent to sign written statement on behalf of respondent No,1 and to appear and defend the case on her behalf. No doubt, the power of attorney does not authorise the attorney also to give evidence on behalf of the principal but such authority was, in fact, nor required under the law as any person conversant 'that the facts of the case could appear as a witness on behalf of the said respondent.
Consequently, in my view, the second argument of Mr. Habib-ur-Rehman is also devoid of force.
13. In the result, I find no force in this appeal and the same is, therefore, dismissed. The parties are left to bear their own costs.