1. ' This judgment shall dispose of aforesaid two appeals arising out of two identical orders dated 3- 2-1993 dismissing appellants' applications for ejectment of the respondent from Flat Nos.7 and 8 of Zareena Manzil, situated on Mir Ayub Khan Road, Ramswami, Karachi on the ground of subletting.
2. ' Appellant's predecessor-in-interest Malik Muhammad Bashir filed two separate ejectment applications against the respondent for her eviction from the aforesaid two flats on the averments that after the dismissal of his earlier, ejectment applications on the ground ,alit and personal requirement, respondent along with her son had permanently shifted and thereafter sublet the premises to some stranger taking undue advantage of the others of the Court. He pleaded that he personally as well as through his son Muhammad Fayyaz Malik who was his rent collector requested the illegal occupant of the premises to vacate the same and explain the correct position but the latter refused to vacate the premises and claimed that he was tenant of the respondent and paying rent to her regularity. He further stated that the respondent had vacated the premises and handed over the possession thereof to some other person and thereby became liable to ejectment from the premises on the ground of subletting.
3. ' Respondent resisted the eviction applications and denied that she had shifted from the premises or sublet the same to someone else.
4. ' In support of his case appellants' predecessor-in-interest examined himself on oath and closed his side as far back as 21-9-1991. Respondent sought a number of adjournments for filing her affidavit-in-evidence but did not file any affidavit. On 26-12-1992 she moved an application for summoning Fayyaz Malik son of the landlord who had died during the pendency of the case. Since the respondent failed to file her affidavit-in-evidence her side was closed on this date.
5. Subsequently she moved an application for permission to file an affidavit-in-evidence which was allowed by consent on 11-1-1993 but on 19-1-1993 her counsel filed statement before the Controller that there was no necessity of filing an affidavit-in-evidence as the appellants had failed to prove their case.
6. ' The sole issue for determination in the case was "whether the respondent had sublet the tenement in question to another person".
7. ' Upon assessm ent of evidence, learned Controller came to the conclusion that appellants had failed to prove their case. Accordingly ejectment applications in both the cases were dismissed.
8. ' Upon hearing learned counsel for the parties at quite some length and examining the pleadings of the parties as well as evidence of the appellants' predecessor Malik Muhammad Bashir I have come to the conclusion that appellants had made out a case of subletting of the premises in favour of Mst. Sughra Bai which version had not been rebutted at all.
9. ' It would appear from a narrative of this judgment that before filing of instant cases on the ground of subletting Malik Muhammad Bashir had earlier filed ejectment applications on the ground of default and personal requirement of the premises for his son Imtiaz Malik but he did not succeed either before the Rent Controller or in the First Rent Appeal. In his affidavit-in-evidence, he specifically stated that the respondent having orders (passed by Controller as well as by the High Court) in her favour immediately and permanently shifted along with her son and thereafter sublet the premises to a stranger, namely, Mst. Sughra Bai and actually parted with possession. He further stated that he personally as well as through his son Muhammad Fayyaz Malik had approached the illegal occupant of the tenements to vacate the premises and to explain the correct position but the illegal occupant refused to vacate the same and claimed that he was the tenant of the respondent and paying rent to her regularly. He added that the respondent had vacated the premises; sublet the same to Mst.. Sughra Bai; handed over possession to her and rendered herself liable to ejectment from the premises. In the lengthy cross-examination of this witness, it was suggested that he had not given the name of the sublessee but he explained that in para. 9 of affidavit-in-evidence he. Had disclosed the name, of Mst. Sughra Bai, to whom the premises were sublet. He refuted the suggestion that there was no person by name Mst. Sughra Bai. He voluntarily stated that Flat No,8 was lying vacant while Flat No,7 was in occupation of Mst. Sughra Bai. It is pertinent to note that no question was addressed to him suggesting that the respondent had not parted with the possession of the premises along with her son or that there was no subletting in favour of any person including Mst. Sughra Bai. Whole cross-examination was directed towards the details of first round of litigation and that the respondent had four sons including one living in Dubai. It is settled principle of law that in case a material fact is deposed in examination-in-chief and not rebutted in A cross-examination, the same is deemed to have been admitted. No doubt, respondent had denied the allegation with regard to subletting or parting with the possession of the demised premises in her written statement, the same cannot take the place of evidence by any stretch of argument. It would thus B appear that there is no challenge to the case set up by the appellants in the pleadings as well as evidence which has gone completely unchallenged and un rebutted. Learned counsel appearing for the respondent urged that the appellants' predecessor had failed to mention the name of sublessee in the ejectment application and in his cross- examination he had voluntarily stated that Flat No,8 was lying vacant with the result that subletting in respect of this flat was not established. I am unable to persuade myself to agree with this submission of the learned counsel inasmuch as in the ejectment application it had been categorically stated that the respondent had permanently shifted from the demised premises and handed over possession to a stranger which case was consistently persued in the evidence altd at that stage name of the person to whom the premises were sublet came to light and was clearly mentioned in the affidavit-in-evidence. Clause (iii) of subsection (2) of section 15 of the Sindh Rented Premises Ordinance refers to three groups for ejectment of a tenant including a tenant, who has without the written consent of the landlord handed over the possession of the premises to some other person. In my view in a case where the landlord is not in a position to ascertain the name of stranger or an unauthorised person occupying the rented premises it is not possible and absolutely necessary for him to introduce his name in the case filed by him. Likewise voluntary admission on the part of landlord to the effect that Flat No,8 was lying vacant would be read in conjunction with his other affirmations on oath in which he categorically stated that the respondent along with her son had permanently shifted to some other place and sublet the premises to a stranger, namely, Mst. Sughra Bai by parting with possession. In para 11 of the affidavit-in-evidence, he specifically stated that the respondent had vacated the premises and sublet the same to Mst. Sughra Bai and handed over possession of the premises to her and thus become liable to ejectment from the premises. The fact that the appellants' predecessor voluntarily stated that Flit No,8 was lying vacant would be referable to the period when he was cross-examined on 21-9-1991 and would not be construed to contradict his statement with regard to subletting and handing over possession of the premises in favour of Mst. Sughra Bai. This statement in evidence having remained un rebutted and unimpeached, I am of the considered view that the appellants had succeeded in establishing their case beyond reasonable doubt to which no exception could be taken.
10. ' With regard to the legal position, on the subject, in the case of Mst. Khairun Nisa and 6 others v.
11. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25 Full Bench of the Supreme Court held that written statements cannot be the exhibits in a case without the person who filed the same being examined in the Court. The statements made in the written statement are not on oath. They are only verified and, therefore, they cannot be treated as evidence in the case.
12. ' In the case of Muhammad Yasin v. Shabbir Ahmed 1985 CLC 2111 Sajjad Ali Shah, J. (as his Lordships then was) in an identical case held that if there was no cross-examination on fact deposed in examination-in-chief, the presumption is that the same is deemed to have been accepted by the party against whom it was given.
13. ' In the case of Mst. Samina Begum v. Muhammad Ali 1991 M LD 1084 a learned Judge of this Court took the view that written statement filed by the tenant, could not be taken as a piece of evidence by itself nor documents filed along with written statement could be taken as a piece of evidence without being proved by somebody competent to testify. It was further held that it is all the more necessary for the parties to step into witness-box or to produce witnesses so that they could be tested on the touchstone of cross-examination.
14. ' In the case of Syed Muhammad Abbas v. Mst. Khatoon Bai 1988 CLC 667 Drarzil-ur-Rehman, J. (as he then was) held that where landlord had established his case that demised premises were in possession of a person other than tenant himself, as named in the application for ejectment and evidence, tenant was duty bound to adduce evidence that there was no subletting and that the possession of the shop premises continued with him which he had miserably failed to prove.
15. Evidence of landlord thus went unchallenged on the point of subletting and in. The circumstances ejectment ordered by Rent Controller was not interfered with.
16. ' In the case of Abdul Hameed v. Muhammad Shah Khan 1992 M LD 335, Syed Abdur Rahman, J. (as he then was) held that the finding of the Controller on the point of subletting is not open to interference, because whereas the respondent has filed affidavit to say that the appellant has sublet the premises to Kallan without his permission, the appellant had not denied the same in his affidavit-in-evidence.
17. ' On the other hand, learned counsel for the appellants relied on a Single Bench decision in the case of Matloob Hussain v. Syed Abdul Qayyum 1988 MLD 2150 in which it was held that onus to prove issue of subletting was on landlord, but he had not categorically stated the name of alleged sub- lessee to whom premises was given by tenant and since when. Landlord having failed to discharge onus satisfactorily, it was held that the issue of subletting was not proved in the circumstances.
18. Facts of the reported case are completely distinguishable inasmuch as in the reported case landlord had candidly admitted in his evidence that "it is a fact that the opponent runs a Hotel in the shop in dispute. This case is, therefore, of no assistance to the respondent.
19. ' Having held above, I allow these appeals and set aside the impugned orders and direct eviction of the respondent or any person in occupation of the premises through her within a period of 30 days.