GHULAM MUHAMMAD AND ANOTHER vs Haji MUHAMMAD JAMIL

' This is an appeal against the order dated 18-3-1981 ordering the ejectment of the appellant on two grounds, namely, default and subletting.

' The brief facts leading to the filing of the above appeal are that the respondent had let out the shop in question to the appellant on 7-8-1977 under a tenancy agreement for a period of 11 months at Rs, 100 per month. The above rent application was filed on 23-2-19..0 on three grounds, namely, default, subletting and personal requirement. The appellant being aggrieved by the above order has filed the present appeal.

2. (a) In support of the above appeal Mr. Sarki learned counsel for the appellant has made the following submissions :

(1) That there was no default inasmuch as 60 days period had not expired at the time of filing of the rent application.

(2) That the finding on the question of subletting cannot be sustained as in fact Habibullah is the brother of the real tenant Ghulam Muhammad.

' On the other hand, Mr. Jalib learned counsel for the respondent has urged that the appellant is habitual defaulter and that the ground of subletting stood proved by the fact that the shop is in possession of a different person than the tenant.

(b) Reverting to the first contention of the learned counsel for the parties, it may be observed that Mr. Jalib has pointed out that the rent for the period preceding to December, 1979 was recovered by the respondent through the Martial Law authorities and that the appellant failed to tender rent for the subsequent period.

' On the other hand, it was urged by Mr. Sarki that since the respondent refused to accept rent and demanded enhanced rent from Rs, 100 to Rs, 150, the appellant remitted the rent through money order but no money order slip was produced before the Rent Controller. However according to the learned counsel for the appellant he can produce the same in this Court. Be that as it may, the question which requires consideration is, as to whether the appellant had committed default in terms of section 15 of the Sind Rented Premises Ordinance, 1979. Since after the expiry of the period mentioned in the tenancy agreement, the appellant had become statutory tenant, the terms and conditions of the tenancy agreement were no longer applicable in view of the judgment given in the case of Muhammad Yousuf v. Abdullah (1). The rent for the month of December, 1979 would have become due and payable in the first week of January, 1980 and, therefore 60 days period had not expired by the time of the filing of the rent application on 23-2-1980. In this view of the matter the learned Rent Controller has committed an error in holding that there was default on the part of the appellant.

(c) Reverting to the second contention, namely, as to whether there was sufficient evidence on record to conclude that there was subletting, it may be observed that once a tenant admits that the tenement is in possession of somebody else, in that event the burden of proof is on him to explain in what capacity the other person is occupying the tenement. In the instant case a joint affidavit was filed by Ghulam Muhammad and Habibullah. It seems that the name of Ghulam Muhammad son of Muhammad Siddiq was added subsequently in handwriting, and it was not originally typed. Be that as it may, it is an admitted position that Ghulam Muhammad has not tendered himself for X-examination. The only person who appeared for X-examination was Habibullah, who was not the tenant under the tenancy agreement. It may be pertinent to reproduce hereinbelow para. 2 of the averment of the aforesaid alleged joint affidavit of the appellants as under : "That it is admitted that the opponent No, 1 has sublet the shop to me but we are co.-sharers since the time of the execution of the rent deed in favour of the applicant."

Since Ghulam Muhammad has not come forward to subject himself to X-examination, he has failed to explain under what circumstances Habibullah has been using the shop. In my view the learned Rent Controller could conclude on the basis of the evidence on record that the fact of subletting has been proved.

3. For the aforesaid reasons I maintain the order under appeal on the ground of subletting and therefore dismiss the appeal but there will be no order as to costs. The appellants are allowed four months time from today to hand over vacant possession of the shop to the respondent on the condition that the appellants shall deposit the arrears of rent from December, 1979 to February, 1982 at Rs, 100 per month within one month from today. In case of default the respondent shall be entitled to file an execution application before the expiry of the above period of four months.

(1) PLD 1980 SC 298