' The present appellant along with respondents Nos. 2 and 3, Malik Bashir and Viquar A. Malik respectively 'have been ordered to be evicted from the premises on the first floor, Plot No,537-C, Block-2, P.E.C.H.S., Karachi (hereinafter referred to as the tenement in question) on the grounds of default, sub-letting and personal use.
2. Admittedly, one Qamrul Nasal' was the owner/landlord of the tenement in question who died on 18-11-1984 leaving behind him respondent No,1, Mrs. Zarina Begum and Miss Shama Qamar as his legal heirs. On 21-1-1990, a rent case under section 15 of Sindh Premises Ordinance, 1979 (hereinafter referred to as the Ordinance, 1979), was filed on the three grounds as mentioned in para 1 above. The rate of rent claimed was Rs,850 per month which has not been denied by the appellant. However, respondents Nos.2 and 3 who were opponents Nos.1 and 2 before the learned Rent Controller were declared ex pane and it is only the appellant who has contested the rent case before the trial Court. It is to be noted that the grounds of default and subletting and personal need were specifically pleaded in the main eviction application but the ground of personal requirement was not urged in the affidavit in evidence which amounts to dropping the ground of personal requirement and, therefore, I would like to confine my discussion on the points of default and sub- letting. Firstly, I would deal with the ground of sub-letting.
3. It is claimed by respondent No,1 that the original tenant was respondent No,2, Malik Bashir who abandoned the tenement in question in the month of November, 1982 and illegally and unauthorisedly handed over the possession to the appellant. Same facts have been reiterated by the landlord in his affidavit in evidence. This plea was denied by the appellant in her written statement where it was pleaded by her, "it is submitted that to the knowledge of late Mr. Qamarul Hasan, the opponent No,1 abandoned the demised premises since November, 1980. The opponent No,1 left the premises in 1980 to the knowledge of late Qamarul Hasan and the opponent No,3 has been in physical possession of the flat in question since, 1976 and paying rent to Mr. Qamrul Hasan and after his death to the applicant" In support of this contention, Mr. Muhammad Sharif has referred to exhibits filed with the affidavit in evidence of the landlord which are letters dated 24-11- 1984, 23-2-1984 and 23-1-1984. It was argued that the possession of present appellant was in full knowledge of the landlord which constitutes right of tenancy in the appellant. It was also contended by Mr. Muhammad Sharif that the appellant was not granted proper opportunity to defend herself before the Court of Rent Controller inasmuch as on 1-9-1996, her side was closed and thereafter no opportunity was granted to her to lead evidence in rebuttal to the case of landlord. He vehemently argued that since the appellant has been condemned unheard, the matter may be remanded back to the learned Rent Controller with permission to the appellant to lead evidence. He has placed reliance on the cases Seth Shivrattan G. Mohata and another v.
Messrs. Muhammadi Steamship Co. Ltd. PLD 1965 SC 669 and National Bank of Pakistan v.
Champhar (Pakistan) Ltd. And 2 others 1988 M LD 984. This proposition has been disputed by Mr. Shaukat Hayat who says that the learned Rent Controller granted more than sufficient opportunities to the appellant to defend her case which is apparent from the fact that the rent case which was filed in the month of January, 1990 was disposed of in the month of September, 1997, i,e, after a period of more than seven years and nine months. It was further contended by him that admittedly the appellant has failed to tender rent since May, 1983 and no purpose would be served if the case is remanded. It was also argued that even after filing of the rent case the appellant has not tendered rent to the landlord and on this sole ground her eviction is to be maintained. Reliance is placed on a decision of this Court in the case of Abdul Ghani v. Hafiz Jalaluddin 1995 CLC 348.
4. Reverting to the ground of subletting, the appellant has admitted respondent No,2, Malik Bashir, to be the lawful tenant of the tenement in question. She has also admitted that she was in joint possession of the tenement in question with Malik Bashir since 1976 and after Malik Bashir abandoned the tenement in question in the year 1980, she is in occupation of the tenement in question and by virtue of that she has become a lawful tenant. Reference to three letters filed by the landlord along with his affidavit in evidence and as referred by Mr. Muhammad Sharif, learned counsel for the appellant, in manner lends support to the fact that at any time the deceased landlord or his legal heirs had ever accepted the appellant to be their lawful tenant. Contents of all these three letters suggest possession of the appellant but, at the same time, they also reflect that it was Malik Bashir who was continuously tendering rent on her behalf and that she was merely in possession on his behalf. This suggests that Malik Bashir for all legal intent and purpose was in constructive possession of the tenement in question and the appellant was merely enjoying possession on his behalf. It is not the case of the appellant that she has paid rent to the landlord and it was accepted by him and which is one of the ingredient to establish relationship of landlord and tenant. The appellant has also not pleaded acquiescence or waiver on the part of the landlord.
5. Mr. Shaukat Hayat has referred to the case of Messrs Jameel Sons & Company and another v.
Muhammad Aslam and 3 others 1992 M LD 1014 where it was held by this Court after reference to the case Chaplin v. Smith (1926) 1 KB 198 that a landlord would be entitled to evict his tenant if such tenant has handed over possession of the premises to some other person without consent of the landlord and that there cannot be a sub-letting unless the tenant parted with legal possession. It was further held that the mere fact that another person is allowed to use the premises while the tenant retains the legal possession is not enough to create a subtenancy. Mr. Shaukat Hayat has also referred to cases Sir E.H. Jaffar and Sons Ltd. v. Sultan Karam Ali and others 1995 SCM R 330 and Mst. Zareena and 5 others v. Syeda Fatima Bi PLD 1995 Kara 388. But the rule laid down in these cases are not attracted in the present circumstances. Recently, another learned Single Judge of this Court, Hamid Ali Mirza, J. In the case of Messrs National Processing Company v. Mst. Hajyani Hawa PLD 1998 Kar. 195 considered several case-law on the point of sub-letting and held that the use of shop premises by a sister concern instead of the original tenant without written permission of the respondent would amount to sub-letting. In the instant case, it is not in dispute that Malik Bashir was the original tenant. However, there is a slight diversion in the stand of the appellant who claims that Malik Bashir abandoned the tenement in the year 1980 which the landlord's case is that the original tenant abandoned the premises in 1982. However, it has been proved that Malik Bashir was the original tenant and that he abandoned the tenement in question where after the appellant is in exclusive possession. It is the case of the landlord that at no moment he has accepted the appellant to be his tenant. At the same time, the appellant was not able to successfully show that she was accepted by the landlord to be his tenant by his conduct in order to establish waiver and acquiescence on the part of the landlord. In view of the admission of the appellant, it stands proved that she is a sub-letter of the original tenant, --- enjoying possession of the tenement unauthorisedly.
6. On the point of default, it was vaguely stated in the written statement as well as in the affidavit in evidence of the appellant that they are paying rent to the landlord. On the other hand, respondent No,1/landlord has specifically stated in the main application as well as in affidavit in evidence that the appellant and respondents Nos.2 and 3 have failed to tender rent since May, 1983. No specific question was put in the cross examination to the landlord. Simply a suggestion was made that the rent is being paid to the landlord which was categorically denied. It is an admitted position that even after January, 1990, when application for eviction was filed, no rent has been paid till this date.
It was feebly stated by Mr. Muhammad Sharif that if the case is remanded, the appellant will deposit the arrears of rent within a period of three months. But, in my considered opinion, no purpose would be served in view of the proved facts that no rent has been paid for last more than 15 years and particularly for nine years even after filing of the rent case.
7. As a result of the above discussion, this appeal is dismissed in limine with no order as to costs.
Consequently, Miscellaneous Nos.879 of 1998 and 211 of 1998 have become infructuous and stand dismissed. However, the appellant shall, being a woman, deliver vacant possession of the tenement in question to respondent No,1/landlord within three months subject to payment of rent.