' In this Constitutional petition Qazi Zaka-ud-Din petitioner raises the question of legality of order dated 19-12-1989 passed by the learned Additional District Judge, Sialkot, whereby his appeal against the order dated 8-11-1988 passed by the learned Rent Controller for acceptance of eviction application filed by respondent No, 1 has been dismissed.
2. Respondent No, 1 sought eviction of the petitioner from the premises in dispute which is a shop on the ground that the petitioner effected partition of the shop to divide it into three portions which had the effect of diminishing the utility of the same and had also sublet the premises to Abdur Rashid Shamim and Qamar Nursery.
3. The learned Rent Controller after careful and elaborate appraisal of evidence produced by both the parties came to the conclusion that the sub letting of the premises so far as it concerns Abdur Rashid who was running a printing press in a part of the shop was established whereas qua the remaining two portions the same was not proved. It was also held that the premises in dispute were partitioned and constructed into three portions without the permission of respondent No, 1 landlord, as such, the petitioner was liable to be ejected from the same.
4. The learned Rent Controller as also the learned lower appellate Court while holding that the subletting of a portion of the shop in favour of Abdur Rashid who was running printing press relied upon evidence of the petitioner himself when he examined himself as R.W. 3 in which he admitted that the said press/machinery had been given by him to Abdur Rashid on Theka.
5. Learned counsel for the petitioner argued that mere giving machinery on Theka could not be held to constitue subletting of the premises to Abdur Rashid. I am not persuaded to accept this argument inasmuch as admittedly the said machinery had been installed in one of the portions of the shop in dispute and if the Press had been given on Theka to Abdur Rashid it certainly amounted to the transfer of the use and occupation of the said portion of the shop for running Press to Abdur Rashid and it can safely be inferred that the amount of Theka must have included some amount for use and occupation of the premises which was nothing but subletting.
6. Learned counsel for the petitioner when faced with this difficulty attempted to overcome it by arguing that there is a chain of reported judgments by the superior Courts that merely because the tenant enters into partnership agreement with some other person regarding business would not constitute subletting of the premises because such third person joining the tenant in the business alone does not by itself would amount to subletting the premises. The rule laid down in the reported judgments is not applicable to the facts of this case as in this case the petitioner, as observed above, admitted that the Press had been given to Abdur Rashid on Theka which would mean that he was made the exclusive user of the said press and the premises where it was installed and there was no element of partnership regarding the business of Press.
7. Learned counsel for the petitioner submitted that the premises had already been divided into three portions when the tenancy between the parties was created through order dated 7-3-1983 passed by the Appellate Court in the previous round of litigation in which the petitioner denied existence of relationship of landlord and tenant, therefore, the act of partitioning the property having not taken place after the tenancy was created, as such, could not be the basis for ordering the ejectment of the petitioner. The two Courts below have taken note of this contention and repelled the same relying upon the evidence of R.W. 1 a witness examined by the petitioner who categorically stated that during the previous round of litigation the premises consisted of a Hall, Room and a Verandah in front of it. He clearly admitted that at the spot now there are different portions of the premises. This evidence is of a person who has been examined by the petitioner himself, therefore% the finding recorded by the two Courts below relying upon the same does not suffer from any illegality calling for interference by this Court in Constitutional jurisdiction.
8. Learned counsel for the petitioner lastly argued that Abdur Rashid was made party in the previous round of litigation alleging that a portion of the premises had been sublet to him therefore, subletting having taken place, before the tenancy was created through order dated 7-3- 1983, as such, the same could not be made the basis for ordering the eviction of the petitioner. I am afraid this argument has also no force inasmuch as in the order dated 7-3-1983, a copy of which was produced as Exh. P. 3, it was made clear that the petitioner would not be entitled to sublet the premises. If the subletting of a premises to Abdur Rashid was intended to be regularised it was for the petitioner to have got the same recorded in the said order. The said order shows that the tenancy was created in favour of the present petitioner and none else. The argument is, therefore, repelled.
9. The orders passed by the two Courts below do not suffer from any illegality or jurisdictional defect, therefore, this writ petition has no merits which is accordingly dismissed with no order as to costs. The petitioner is, however, granted four months' time from today to vacate the premises subject to the payment of rent regularly.