1. ' This first rent appeal is directed against the order, dated 13-2-1987 passed by the IInd Senior Civil Judge and Rent Controller, Karachi Central allowing the eviction application filed by the respondent and directing the appellants to put the respondent in possession of the premises in question within sixty days from the date of the order.
2. ' The facts leading to the filing of the above appeal are that the respondent is landlord in respect of shop built on a plot bearing No.58/V-C, Paposh Nagar, Nazimabad, Karachi and. the appellant No.1 is a tenant in respect thereof at the monthly rent of Rs,325. The respondent filed eviction application on the ground of default and subletting the premises to appellant No.2. The respondent averred in para 2 of the eviction application that the appellant No.1 has failed to tender the rent with effect from January, 1984 in respect of the premises in question, as such he is a defaulter, therefore, liable to be evicted from the premises in question. It is averred in para. 4 that the appellant No.1 has also sublet the premises in question to appellant No.2 who has been running the shop. As such the appellant has also violated one of the provisions of law, and therefore, he is liable to be evicted from the premises in question.
3. ' The appellants contested the eviction application. The appellants denied the allegation of default and also the allegation of subletting. They pleaded that the appellant No.1 is the eldest brother and from the inception of the tenancy the appellant No.2 is running the business to the knowledge of the landlord. They pleaded that they remitted the rent through money-orders which were refused.
4. Therefore, thereafter they started depositing rent in the Miscellaneous Rent Case No.3289 of 1984.
5. The respondent has withdrawn the rent deposited by them in Miscellaneous Rent Case No.3289 of 1984 from time to time.
6. ' The respondent filed his affidavit-in-evidence in support of the eviction application. He repeated/reiterated the same facts as were asserted in the eviction application. The appellant No.2 filed affidavit-in-evidence in rebuttal. They were cross-examined by the learned counsel appearing for the respective parties.
7. ' The learned Controller, on assessment of the evidence on the record, allowed the eviction application on both the grounds. The appellants have filed the above appeal against the impugned order.
8. ' I have heard Mr, M. Abdul Karim Siddiqui, learned counsel appearing for the appellants and Mr. Partab Rai, learned counsel appearing for the respondent. I have perused the impugned order and have gone through the R&P of the case.
9. ' The respondent averred in para. 2 of the eviction application that the appellant No.1 has failed to tender rent with effect from January, 1984 in respect of the premises in question. In para. 2 it is averred that the appellant has started depositing the rent in Court in Miscellaneous Rent Case No.3289 of 1984 after committing default. The appellants stated in their joint written statement that the respondent collected rent from the appellants for the period ending 31-12-1983. Since then he did not collect the rent for the period from January, 1984 onward. The respondent did not disclose his address but the appellants after great difficulty could find out the address of the respondent and continued to tender the due monthly rent vide money order 2848 dated 29-3-1984, 4205, dated 27-6-1984 and lastly 4502 dated 30-7-1984 for Rs,2,275 which was also returned as refused.
10. Consequently the appellants started depositing the due monthly rent from January, 1984 and onward in Miscellaneous Rent Case No.3289 of 1984 of which a notice was served on the respondent and he has been withdrawing the rent deposited by the appellants from time to time.
11. ' The respondent stated in his affidavit-in-evidence that the appellant No.1 has failed to tender the rent with effect from January, 1984. Respondent was cross-examined at length. It is pertinent to note that no question was put to him about refusal of three money-orders. It appears from the record that even the postal receipts and money-orders coupons were not tendered in evidence. It has come on record that the rent for the disputed period was deposited for the first time in October, 1984 that is after the default had already been committed.
12. ' The second aspect is that the respondent sent a notice dated 3-1-1984 intimating about change of name. In this notice he claimed the rent from January, 1984. It is pertinent to note that despite this notice, the rent was not tendered within thirty days as contemplated by section 18 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as "the Ordinance"). It seems that the respondent has established that the appellant No.1 has committed default. The finding on this issue is in consonance with the evidence with the evidence on record.
13. ' The respondent has also sought eviction on the ground of subletting. The case of the appellants as set out in the written statement, is that the appellants were having joint family and set up the business. It was started to be carried out in the name of the appellant No.1 by the appellant No.2 practically since the very inception of the tenancy in respect of the shop in question and the appellant No.2 was virtually working and running the business at the shop premises in question from the very beginning to the knowledge of the respondent, all his brothers, father (since deceased) and relations.
14. ' The Rent Controller, on a consideration of the evidence on record, came to the conclusion that the appellant No.1 has handed over the possession of the premises in question to appellant No.2 without consent and permission of the respondent and has contravened section 15(2)(iii)(a) of the Ordinance. On this finding, the Rent Controller ordered the eviction of the appellants.
15. ' In this case, the Rent Controller has found that the tenant has allowed appellant No.2 to run the business. I have carefully gone through the pleadings in this case and also the impunged order.
16. The appellant No.1 had parted with physical possession and allowed the appellant No.2 to use the premises for running his own business. The evidence on record clearly makes out that the appellant No.2 has made use of the demised shop. Hence, if the user of the demised shop by some person other than a tenant to whom it has been let out, is found to be true, the tenant will definitely come under the mischief of section 15(2)(iii)(a) of the Ordinance. Thus from the finding of the Rent Controller, it is clear that appellant No. 2 hai been allowed to occupy the premises in question. I have already held is the foregoing paragraphs that this act of the tenant (appellant No. 1) i violation of the provisions of the Ordinance and that he would directly com under the mischief of section 15(2)(iii)(a) of the Ordinance.
17. Thus, the findings of the Rent Controller and the evidence-on-record which I have discussed above, clearly show that the appellant No. 1 has parted with the possession of the shop in question to the appellant No.2.
18. ' For the aforesaid reasons, I maintain the order under appeal on the ground of default and subletting, and, therefore, dismiss the appeal but there will be no order as to costs. The appellants are directed to hand over vacant possession of the shop in question on or before 31-3-1993 to the respondent on the condition that appellants shall deposit rent as per tentative rent order. In case of default, the respondent shall be entitled to file an execution application before 31-3-1993. In case of default in handing over possession on or before 31-3-1993, the writ of possession shall be issued without any notice to the appellants.
19. ' The above are the reasons for the short order dated 12-4-1992 dismissing the appeal on the conclusion of the arguments.