1. ' Appellant Muhammad Yaqub has called in question his eviction from the shop in litigation ordered by the Ist Senior Civil Judge and Rent Controller Karachi South under an order dated 14-11- 1988 passed in Rent Case No,177/1988.
2. ' Admittedly the shop in litigation situated in the ground floor of a building standing on Plot No,24, Sheet S.R.9, Siral Quarters, Karachi is owned by respondents 1, 2, 3 and 4 and it was let out to the appellant and its present rent is Rs,110 per month.
3. ' Rent Case No,177/88 was filed by the respondents Nos, 1 to 4 for eviction of the appellant and the respondent No,5 from the shop in litigation, on the ground that the appellant had sublet a part of the shop to the respondent No,5 on monthly rent of Rs,800 per month. Respondents Nos,1 to 4 sent such notice dated 12-1-1988 to the appellant, asking him to vacate the shop and surrender its possession but the appelant refused to do so.
4. ' In his written statement, the respondent No,5 admitted having been sublet, by appellant's son Ghulam Farid with consent of the appellant, a part of the shop in litigation where lie was running tea hotel. Respondent No,5 admitted litigation with Ghulam Farid.
5. ' The rent application was contested by the appellant, who in his written statement admitted that a part of the shop in litigation was in possession of the respondent No,5 but as trespasser and not as sub-lessee. Appellant alleged that the respondent No,5 was in collusion with respondents Nos,1 to 4 who had mala fide and ulterior motive to get him (appellant) ejected from the disputed shop. It was next alleged that the respondents Nos,1 to 4 had filed the rent case to get the rent enhanced and to get "Pugri". It was denied if any part of the disputed shop was given to the respondent No,5 by way of lease.
6. ' After recording evidence of the parties, learned trial Court under the impugned order dated 14-11- 1988 ordered eviction of the appellant and the respondent No,5 from the shop in litigation. Hence this appeal.
7. ' Mr. Nazirullah, learned counsel for the appellant argued that even if a part of the shop in litigation was let out by the appellant to the respondent No,5 this would not create ground for eviction in terms ,of clause (iii) of subsection (2) of section 15 of Sindh Rented Premises Ordinance (hereinafter to be mentioned as the Ordinance). It was next argued that as per the respondent No,5, he was let out a part of the disputed shop by Ghulam Farid, who was not attorney of the appellant and who had no authority to let out any part of the disputed shop and that it was Banaras who had such authority. It was also argued that the litigation between respondent No,5 and Ghulam Farid would not affect the rights of the appellant. Lastly it was argued that the evidence on record was not sufficient to make out a case of subletting. In support, learned counsel for the appellant cited the cases of:-
(i) Shaikh Zubair Ahmed v. Ali Ahmed 1983 CLC 3254.
(ii) Mst. Tooba Taliby and another v. Sultan Lakhdir and another (1984 M LD 74).
(iii) Pakistan Food Manufacturers v. Sadiq Ishaque and others (1992 CLC 482).
8. ' Mr. Ata-ur-Rahman, learned counsel for the respondents 1 to 4 referred to the definitions of 'premises' and 'building' given in section 2 of the Ordinance and argued that for the purposes of clause (iii) of subsection (2) of section 15 of the Ordinance the word "premises" means entire premises or part of the same. Learned counsel referred to the litigation between respondent No,5 and Ghulam Farid and the appellant and contended that the ground of subletting was admitted and proved. Respondent No,5 was said to have admitted sublettting in its written statement.
9. Banaras, attorney of the appellant was said to have introduced a new story in paras. 9 and 10 of his affidavit by saying that respondent No,5 was inducted in the disputed shop by respondent No,2 Mansoor Ali. It was added that in his cross-examination Mansoor All was not questioned if he had inducted respondent No,5 in the disputed shop. Learned counsel for respondents 1 to 4 further argued that neither the appellant had appeared as a witness nor his son had entered the witness- box. It was added that there was no evidence if the subletting was consented to by the landlords. In support learned Counsel for the respondents 1 to 4 cited the cases of:
(i) MRs, Talat Farooq v. Naheed Jalil, Joint Mutawalli (1989 CLC 1348).
(ii) Ghulam Muhammad and another v. For her son Haji Muhammad Jamil (1982 CLC 1042).
(iii) Muhamad Yusuf Khan v. Moosa and another (1987 CLC 981).
10. ' None appeared for respondent No,5 to argue the matter.
11. ' According to clause (iii) of subsection (2) of section .15 of the Ordinance, the Rent Controller shall make en order directing the tenant to put the landlord in possession of the demised premises if he is satisfied that the tenant has without the written consent of the landlord handed over the possession of the premises to some other person or has used the premises for the purpose other than that for which it is let out or has infringed the conditions on which the premises was let out. As per section 2 (h) of the Ordinance 'premises' means a building or land, let out on rent but does not inlcude a hotel. 'Building' as defined under section 2 (a) of the Ordinance means any building or part thereof, together with all fittings and fixtures therein, if any, and includes any garden, garage, outhouse and open space attached or appurtenant thereto. In the case of Muhammad Yousuf Khan (1987 CLC 981) cited on behalf of the respondents it was held that mere handing over of possession by the tenant to another person without the consent of the landlord is sufficient to make him liable for eviction by the landlord. Said case was followed in the case of MRs, Talat Farooq (1989 CLC 1348) where it was reiterated that mere handing over possession by the tenant to another person without the consent of the landlord is sufficient to make him liable for eviction. In the same case it was held that it is not necessary that the tenant should hand over the entire demised premises to another person in order to attract the provisions of section 15 (2) of the Ordinance and thatit is enough if the tenant parts with part of the demised premises. In the third case cited on behalf of the respondents reported in 1982 CLC 1042 it was held that once a tenant admits tenement in possession of somebody else, in that event the burden of proof is on him to explain in what capacity the other person is occupying the tenement.
12. ' On factual side, there was not much controversy in respect of the actual subletting. In para 3 of his written statement, the appellant admitted that respondent No,5 had taken a small portion of the shop for keeping his goods temporarily and later on such permission was withdrawn by the appellant and hence the respondent No,5 was trespasser. In this situation as observed in the case of Ghulam Muhammad and another (1982 CLC 1042), the onus is on the appellant to explain in what capacity respondent No,5 occupied a part of the disputed shop. Appellant also referred to Civil Suit No, 86/88 filed by respondent No,5. Said suit was filed by respondent No,5 against the appellant, his son Ghulam Farid and respondent No,2 Mansoor All for declaration and injunction in respect of the disputed shop. Said suit ended into a compromise on 19-7-1988 and in pursuance of the compromise respondent No,5 vacated that portion of the disputed shop which was in his possession and handed over possession of the same to the appellant and his son and in return respondent No,5 was paid cash compensation of Rs,19,000. Earlier the respondent No,5 had filed Suit No,2056/87 against appellant's son Ghulam Farid contending that a part of the disputed shop was given to him on rent at rate of Rs,800 p.m. By the latter. Said suit was disposed of in terms of a joint statement made by the parties on 23-12-1987 to the effect that Rs,1,000 were accepted by Ghulam Farid as repayment of a debt and the dispute between the parties was settled outside the Court. In his written statement filed in the rent case respondent No,5 admitted that he was running his exclusive business of tea hotel in a part of the disputed shop which he took on rent from Ghulam Farid with concurrence of the appellant. This was in addition to the evidence of Mansoor Ali, who stated in his affidavit-in-evidence that without his permission the appellant had sublet a portion of the shop to respondent No,5 Shiraz from whom Rs,800 per month were being realized as rent. In his cross-examination Mansoor All stated that besides him, Amir All and Abid Hussain were co-sharers in the disputed property. His cross-examination does not shatter his evidence about subletting. He denied if the appellant was permitted to allow respondent No,5 to keep his goods in the disputed shop. Appellant did not enter the witness-box. On his side affidavits of Banaras Khan, Rashid Hussain and Abdul Majid were filed. Banaras Khan, who is brother as well as attorney of the appellant stated in his affidavit that the appellant was running his business in the disputed shop in name and style of "M/s. Ghulam Fareed Dry Cleaners". In respect of subletting Banaras Khan stated that it was Mansoor Ali (respondent No,2) who installed Shiraz (respondent No,5) to set up tea cabin adjacent to the disputed shop but this was tolerated by the appellant. Giving further details Banaras Khan stated that in October 1987 the applicant (there were four applicants in the rent case) came and requested appellant's son to allow Shiraz to keep his empty articles inside the shop only in the night time and in the morning the same would be removed by Shiraz. These facts were not given in written statement of the appellant where the appellant admitted that the respondent No,5 had taken a small portion of the shop to keep the tea artiths utensils temporarily and the permission was withdrawn by the appellant. This shows that permission being withdrawn was earlier given by the appellant. Name of respondent No,2 Mansoor All was not mentioned in para. 3 of the written statement dealing with allegation of subletting. Rashid Hussain and Abdul Majid said in their affidavits that in November 1987 "applicant" requested appellant's son Ghulam Farid to allow Shiraz (respondent No,5) to keep his crockery for two weeks. This was yet a new story not given in the written statement. Both these witnesses are interested. Rashid Hussain admitted being on friendly terms with the appellant. Abdul Majid admitted being on terms with the appellant.
13. The appellant has been taking different stands at different places to hide his guilt of subletting. The appellant cannot get out of the fact that there was litigation between him, his son and the respondent No,5. Such litigation shows that subletting of a part of the shop in litigation had taken place. The appellant has not been able to establish that the subletting took place with permission of the landlord.
14. ' The authorities cited on behalf of the appellant do not help him. In the case of Shaikh Zubair Ahmed 1983 CLC 3254 the view taken was that mere act of letting other persons into possession and permitting them to use the rented premises for their own purpose, does not amount to subletting. In said case the tenant never parted with legal possession and he simply allowed a family to use the demised premises which consisted of a residential tenment. In the case of Mst.
15. Tooba Taliby and another (1984 M LD 74) it was held that to establish that a person was a sub- tenant it was necessary to prove that the tenant had parted with possession and had created an interest in estate. In the cited case the landlords alleged that an outhouse and not the demised shop was sublet. The sub-tenancy had not been established even in respect of the outhouse. In the case of Pakistan Food Manufacturers (1992 CLC 482) the view taken was that the lessee who retained legal and physical possession of rented premises to himself, but simply allowed some person to use demised premises could not be found to have sublet the premises. In the cited case the sub-lessee was a company, which was a sister concern of the original lessee and directors of both the companies were common and the tenancy was acquired by the original lessee but it was for the benefit of both the companies and the rent was being paid by both the companies. In this way none of the cases cited on behalf appellant helps him.
16. ' As a result of the above discussion I am of the view that the ground of subletting was made out and the Rent Controller rightly ordered eviction of the appellant and respondent No,5. This appeal is therefore dismissed with costs but the appellant is given a period of one month from today to vacate the premises and to hand over its possession to the respondents 1 to 4.