Haji SAID WAHAB KHAN Versus AMJAD ALI

SARDAR MUHAMMAD RAZA KHAN, J .--- Haji Said Wahab Khan, the present petitioner, filed two eviction petitions against Qadir, Muhammad Aslam and Amjad Ali before Rent Controller, Mardan on the grounds of default in payment of rent, subletting and bona fide personal requirement. After contest, the Rent Controller on 27-5-2000 ordered the ejectment of tenants holding that they were guilty of default in payment of rent and further that Qadir and Muhammad Aslam tenants had unlawfully sublet the suit premises in favour of Amjad Ali. This order was upheld by the learned District Judge in appeal vide judgment, dated 26-1-2002.

2. Amjad Ali, alleged to be a sublettee, invoked the Constitutional jurisdiction of Peshawar High Court. A learned Division Bench through the impugned judgment, dated 17-12-2002 set aside the concurrent findings of the two forums and dismissed the ejectment petitions of the landlord on the ground that the default was not proved and that the subletting in favour of Amjad Ali had taken place with the implied consent of the landlord who remained silent for a considerable time. The landlord, through these petitions, seeks leave to appeal under Article 185(3) of the Constitution.

3. The two forums, the first and the last respectively in the given hierarchy, had concurrently arrived at the conclusion that the tenants had committed default and also had sublet the premises without the consent of the landlord. In Constitutional jurisdiction of the High Court, the concurrent findings have been reversed. In the circumstances of the present case, we are to see as to whether the learned Judges in the High Court were justified in so doing.

4. The learned Rent Controller held that the tenants had committed default in the payment of rent. While filing appeal before the learned District Judge the appellant mostly confined himself to the question of subletting while the matter of default was not seriously challenged. A sentence was inserted in between the end of para.4 and beginning of para.5 as:

Such in-between-the-line insertion seems to be indicative of casual defence because subsequently the question of default was never challenged before the learned District Judge as apparent from the last paragraphs of his judgment, dated 26-1-2002. We are convinced that the plea of default was abandoned before the First Appellate Court and hence the eviction on ground of default being concurrent should not have been interfered with.

5. Coming to the question of subletting, the concurrent finding was set aside by the High Court drawing inference of acquiescence of landlord through his conduct. It would be better if one refers to the real law on the subject contained in section 13(2)(ii)(a) of the Urban Rent Restriction Ordinance, reproduced below, which categorically provides that a tenant is liable to ejectment when he, without written consent of the landlord, sublets the premises:--

"13. Eviction of tenant .--- (1) A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Ordinance, or otherwise, and whether before or after the termination of the tenancy, except in accordance with the provisions of this section, (or as the case may be, section 13-A, N.-W.F.P.).

(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that---

(i) the tenant has not paid or tendered rent due by him in respect of the building or rented land, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord, or in the absence of any such agreement, (within sixty days from the period) for which the rent is payable; or

(ii) the tenant has, without written consent of the landlord-

(a) transferred his right under the lease or subject entire building or rented land or any portion thereof, or

(b) ."

6. The aforesaid provision is for the benefit of both, the landlord as well as the tenant, so that in future, they are not in a position to exploit certain given situation against each other. The tenant, therefore, can defend only that subletting has taken place with the written consent of the landlord and not otherwise. In the instant case, no written consent of the landlord was either pleaded or proved. The landlord having not consented in writing can rightly challenge the subletting which, in the instant case, is rather admitted. On this score alone tenants were liable to be ejected and the learned High Court should have avoided interference in the concurrent findings and that too under Article 199 of the Constitution.

7. Consequently, the petitions, after conversion into appeals, are hereby accepted, impugned judgment, dated 17-12-2002 of the High Court is set aside and the tenant is directed to handover the vacant possession of suit premises within six months from today and shall, in the meanwhile, keep on paying the monthly rent regularly.

M.H./S-90/S Appeal allowed.