' This judgment will decide S.A.O. No,66 of 1992, which calls in question orders of the learned Rent Controller as well as learned Additional District Judge, dismissing the ejectment petition and also the appeal of the appellant.
2. Facts out of which this appeal has arisen are that the appellant filed .An application under section 13 of the Punjab Urban Rent Restriction Ordinance for eviction of the respondent, from Shop No,30, on the ground of default, subletting and damage. It was claimed that the respondent, General Traders; was a tenant who had defaulted in payment of rent from April, 1993 and that the tenancy rights were transferred to Riasat Ali, Ijaz Ali and Shaukat Ali, sons of Ghulam Murtaza, without permission and consent of the appellant and they are conducting business of Iron Bars and Iron Guarders etc. In the rented shop. Allegations of damage to property and impairing its value were also raised.
3. Respondent, General Traders, acting through Jamshed Butt filed a written statement, denying the allegations of default, subletting and damage. It was maintained that the ejectment petition was mala fide and that the appellant had no cause of action.
4. Vide order, dated 3-6-1999, ejectment petition was accepted but in appeal, the order was set aside and case remanded for fresh decision. In post remand proceedings, ejectment petition was dismissed by the Rent Controller on 4-3-1991, which was also affirmed in appeal on 9-3-1992 by the learned Additional District Judge, Lahore.
5. In the present appeal, two orders are subject-matter of scrutiny.
6. Learned counsel for the appellant argued that the appellant had been non-suited on the ground of insufficiency of evidence, which could not be a ground for dismissing the ejectment application.
It was added that once the evidence of parting with the property was produced, the onus was upon the respondent to prove that tenancy rights were not transferred and that possession was not parted with. It was contended that the respondent was legally bound to produce Riasal Ali etc. But he did not produce them in the witness-box. Learned counsel submitted that Qanoon-e- Shahadat Order was applicable to the proceedings under the Rent Ordinance and, therefore, the learned Rent Controller and the learned Additional District Judge could not reject the application on flimsy grounds.
7. In reply, it was argued that concurrent findings of fact were recorded against the appellant. No misreading of evidence could be pointed out, A.W.1 was absolutely unaware of all the material facts and made a baseless statement and that A.W.2 who was appellant, was unable to prove transfer of right of tenancy.
8. With the assistance of learned counsel for the parties, I had the opportunity to re-examine the evidence.
9. The only ground canvassed at the time of hearing is about subletting. According to the appellant, respondent had inducted Riasat Ali and two others in the rented premises who were doing their business. At the fag-end of hearing, learned counsel for the appellant also submitted that on the demise of Jamshed Butt, his widow could not possibly run the business and, therefore, it should be assumed that subletting had taken place. This is hypothetical and self-assumptive argument. For running business, personal presence is never necessary. Ladies can run business through their servants and employees. It is not unusual that many ladies are running important business in this country and, therefore, to assume subletting on the ground that successor of the tenant was a lady, .Will not be possible.
10. On factual side, the evidence on record led by the appellant comprised of statements of A.W.1 and A.W.2. A.W.1, in examination-in-chief deposed that Jamshed Butt had given the shop to Riasat and two others. In cross-examination, he admitted that name of the shop was General Trades. He did not recollect that even in the time of Jamshed Butt, the name of the shop was General Traders.
On being further asked, the witnesses admitted that before purchase of the property, by appellant, respondent had been running the business. He expressed his lack of knowledge, if any previous ejectment petition was filed by the appellant, which was dismissed. The statement made by the witnesses did not inspire confidence as he was unaware of many material informations and had no knowledge of material facts. After A.W.1, statement of Muhammad Saeed, A.W.2 remains in field which also does not give any plausible basis to assume subletting. The evidence of the appellant was sufficiently repelled by the statements of R.W.1 Wajid Ali, R.W.2 Muhammad Riaz and R.W.3 Jamshed Butt.
11. In evidence, Jamshed Butt himself appeared and deposed that he had been running the business in the shop and the he had not inducted anyone else. He was thoroughly cross-examined but his statt vent could not be shaken. The statement of R.W.3 was also corroborated by two witnesses who proved that Ijaz Ali and two others, did not have any concern with the business of rented shop.
12. For seeking ejectment on the ground of subletting, it was necessary for the appellant to prove that the respondent had either sublet the shop or had parted with the -possession. If there was change of business, then some documentary evidence about change of business name, constitution of the firm, registration mark and letter pads etc. Could have been produced. Except the statements of A.W.1 and A.W.2 no other evidence was produced. This evidence was sufficiently rebutted by the respondent by producing oral evidence. The appellant had failed to discharge the onus to prove a case of subletting or parting with the possession or transfer of lease rights.
13. The argument that the appellant was non-suited on account of insufficiency of evidence is without substance. Findings are that appellant could not prove subletting or transfer of lease rights.
The Rent Controller as well as the learned Additional District Judge considered the entire evidence and recorded findings of fact against the appellant, which do not suffer from any misreading or non-reading of record.
14. For the reasons above, there is no substance in this appeal which is accordingly dismissed.