MUHAMMAD ABBAS Versus KHATOONBAI

This is an appeal under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance).

2. The facts giving rise to this appeal, briefly stated, are that the respondent filed an application under section 15 of the Ordinance on two grounds, namely, default and subletting. The respondent examined his son and attorney and one witness Abdul Latif Hashmi. The appellant also examined himself and one witness, Mumtaz Ahmed.

The learned Rent Controller, after hearing the parties, found the issue of default in favour of the appellant but the issue of subletting was found against him by his order, dated 11‑11‑1986, against which the above appeal has been preferred by the appellant. It was alleged by the respondent that the shop was let out to the appellant at a monthly rent of Rs.250 but the appellant in the year 1982 sublet to the person named therein at a monthly rent of Rs.500.

3. Mr. Azizul Hassan, learned counsel for the appellant submitted that the learned Rent Controller has not correctly appreciated the evidence led by the parties. Admittedly, the appellant is a full time employee in the K . E . S . C . His case is that after the death of his wife as his son could not manage the business he employed a servant who is looking after the business on his behalf. He did not disclose the name of the servant either in the written statement or in the evidence, whereas the respondent has made specific allegation in his affidavit‑in -evidence supported by his witness, that for the last two to three years one Sadaqat and his two sons Anwar and Shadab have been in occupation of the shop and carrying on business and are found in control of the shop premises and business as well. If Sadaqat was an employee of the appellant, as alleged by the appellant, there was no impediment in his way to produce and examine him in Court to prove that he was the servant of the appellant. He could as well produce the accounts of the business showing the payment of salary to him and other things which he failed to do. The appellant also failed to produce the son Ali Raza who is alleged to running the shop alongwith the alleged servant. On the other hand there is a specific denial in the evidence of the attorney of the respondent that Sadaqat was a servant of the appellant. It was, therefore, all the more necessary for the appellant to produce Sadaqat as his witness. In fact, the avertment made by respondent and his witness as to the fact of possession of the shop premises by Sadaqat and his two sons has been admitted indirectly by the appellant's own witness, Mumtaz who stated that for the last two or three years two strangers sit on the shop. I, therefore, find that the respondent has established his case that the demised premises are in the possession of the persons, other than appellant himself, as named in the application for ejectment and evidence. It was, therefore, the duty of the appellant to adduce evidence that there was no subletting and that the possession of the shop premises continues with him which he has miserably failed to prove. In fact, the respondent and his witness have not been cross‑examined on the evidence led by them on the question of subletting. The evidence of the respondent went unchallenged on .the point of subletting. Only one question asked from the respondent's witness Abdul Latif Hashmi, was with regard to having in his possession the documentary proof of subletting.

4. Learned counsel for the appellant has cited the following six cases, namely, Motal Bai v. Abdul Aziz and others P L D 1968 Kar 635, Najamuddin v. Zamir Ahmed P L D 1982 Kar. 188, Nasir Mahmood v. Mustajabi Begum 1983 C L C 2872, Grindlays Bank Ltd. and another v. M/s. Alliance Commercial Corporation 1984 C L C 2336, Abu Bakar v. Ch. Muhammad Abdullah 1986 M L D 227 and Izhar Hussain Naqvi v . Muhammad Saeed 1986 C L C 1485.

5. The cases cited, as pointed out to the counsel during his argument, are distinguishable on facts and are of no help to the respondent. The instant case is based purely on its own facts as supported by the evidence and decided accordingly.

6. On the other hand, learned counsel for the respondent cited three cases namely, Muhammad Yasin v. Shabbir Ahmed 1985 C L C 2111. Mst. Fatima Noor v. Shabbir Ahmed 1985 C L C 2632 and Ali Muhammad v. Wali Muhammad and 4 others 1985 C L C 1332.

7. (i) In first case it was observed by a learned Single Judge of this Court that there being no cross‑examination on fact deposed in examination‑in‑chief, the presumption would be that the evidence has been accepted by party against whom it was given.

(ii) In the second case it was observed by another learned Single Judge of this Court that the evidence produced by landlord on issue of subletting was established in the circumstance.

(iii) The third case, however, as cited by counsel for respondent has no application to the facts of the present case.

8. The evidence of the respondent has been rightly believed b 1 the learned Rent Controller and I find no justification in disagreeing with him.

9. The appeal is dismissed with costs

M.B.A./M‑367/S Appeal dismissed.