IN THE HIGH COURT OF SINDH, AT KARACHI
Constitutional Petition No.S-1034 of 2011
Present:
Mr. Justice Abdul Maalik Gaddi
Muhammad Ashraf ………………...….………………………….. Petitioner
Versus
Mehmood Elahi and others…. ………………………………….Respondents
Date of hearing 11.02.2014
Date of order 11.02.2014
Mr. Mahfooz-ul-Haq, advocate for the Petitioner.
Mr. Mirza Atif M. Baig, advocate for the respondent No.1.
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O R D E R
Abdul Maalik Gaddi, J The petitioner is aggrieved by the judgment dated 30.05.2011 passed by the learned Ist Additional District and Sessions Judge, Karachi Central, whereby she dismissed the First Rent Appeal No.84/2010 filed by the petitioner against the order dated 04.03.2010 passed by the VI Rent Controller, Karachi Central allowing the ejectment application filed by respondent No.1 and ordering ejectment of the petitioner from the demised premises.
2. Brief facts of the case relevant for the purpose of disposing of this petition are that the respondent No.1 filed an eviction application under Section 15 of Sindh Rented Premises Ordinance, 1979 against the petitioner on the grounds of default in payment of rent and subletting stating therein that the petitioner is his tenant in respect of shop No.6, situated at Madina market plot No.SC-5, Block-1, North Nazimabad Karachi since February 1999 at the monthly rent of Rs.1000/- per month and Rs.35,000/- being deposit, and at present the rate of rent is Rs.1210/- per month. The respondent No.1 has further stated that the petitioner has lastly tender rent for the month of July 2006 and failed to pay the monthly rent from the month of August 2006 to February 2007, thus the petitioner committed default and an amount in the sum of Rs.8470/- are outstanding being accumulated rent. The petitioner also sub-letted the demised premises to one Iqbal.
3. The petitioner filed written statement denying the averments made in the ejectment application. On the basis of the pleadings of the parties, the following issues were framed by the trial Courts:
1- Whether the opponent has committed default in payment of rent?
2- Whether opponent has sub-letted the case premises to Mr. Iqbal?
3- What should the order be?
4. After hearing the learned counsel for the parties, the learned VIth Rent Controller, Karachi Central allowed the ejectment application vide order dated 04.03.2010 on the ground of sub-letting only. The petitioner challenged the said order through First Rent Appeal No.84/2010, which was dismissed by the learned Ist ADJ Karachi Central vide impugned judgment dated 30.05.2011, hence this petition.
5. I have heard parties advocates and perused the record with due care.
6. It is contended by the learned counsel for the petitioner that the orders passed by two Courts below are unjust and have been passed without considering the material available on record hence are not sustainable under the law. He has further submitted that the evidence on the point of sub-letting produced by respondent No.1/landlord is very weak in as much as the respondent No.1 has failed to mention any specific date of sub-letting in his ejectment application or in his affidavit in evidence that the premises was sub-letted to one Iqbal.
7. On the other hand learned counsel for the respondent No.1 has supported the impugned orders passed by two Courts below and has submitted that the landlord in his ejectment application as well as in his affidavit in evidence has categorically mentioned that the petitioner had sub-letted the premises in question to one Iqbal but this fact has not been challenged by the petitioner in the evidence, therefore, the factum of sub-letting on this score stand proved. In support of his argument he has relied upon the following case law:
(1) Messrs Habib Bank Ltd. V. Messrs Publix Industries Ltd. 1991 CLC 1907.
(2) Khuda Bux through L.Rs. V. Muhammad Iqbal and 2 others 2008 CLC 1071.
(3) Arshad Mehmood Siddiqui V. Muhammad Haroon 1992 MLD 810.
8. From the perusal of record it reveals that the ejectment application filed by respondent No.1 was allowed only on the ground that the petitioner has sub-letted the premises to one Iqbal. Perusal of record further reveals that the respondent No.1 in order to substantiate his claim submitted his affidavit in evidence and reiterated the contents of the eviction application. The petitioner has also submitted his affidavit in evidence and reiterated the contents of the written statement. Parties advocates have cross examined the witnesses of each other.
9. It is pertinent to mention here that the petitioner in his written statement as well as in his affidavit in evidence failed to controvert the allegation of respondent No.1 regarding sub-letting as the respondent No.1 in his ejectment application as well as in his affidavit in evidence has given statement that the petitioner had sub-letted the demised premises to one Iqbal but petitioner neither controvert such contention during cross examination of respondent No.1 nor in rebuttal he denied the contention of respondent No.1 but on the other hand he kept pin drop silence to the effect of statement made by respondent No.1 regarding sub-letting. During the course of argument when this aspect of the case was confronted to the counsel for the petitioner, he has frankly admitted the said position.
10. I have gone through the case law reported in the cases of Messrs Habib Bank Ltd. V. Messrs Publix Industries Ltd. 1991 CLC 1907, Khuda Bux through L.Rs. V. Muhammad Iqbal and 2 others 2008 CLC 1071 and Arshad Mehmood Siddiqui V. Muhammad Haroon 1992 MLD 810, in the cited cases, it has been observed that if a particular fact has been deposed on oath but the same has not been controverted/challenged/question in cross examination, the presumption would be that such part of evidence was deemed to have been accepted by the party against whom that evidence was given.
11. In view of the above discussion the Rent Controller held that the respondent No.1 has successfully proved that the petitioner has sub-letted the premises in question to one Iqbal. This finding of Rent Controller was upheld by the learned Appellate Court and hence there are concurrent findings of the two Courts below against the petitioner which cannot be disturbed unless it is shown that the findings are against the evidence on record. The learned counsel for the petitioner has failed to point out any illegality or infirmity in the impugned orders.
12. In view of the above discussions, I find no merits in this petition which is dismissed along with listed application. Since the petitioner is old tenant, therefore, three months’ time is granted to him to vacate the premises in question and handover its vacant possession to the respondent No.1 subject to regular payment of rent.
13. This petition was dismissed vide short order dated 11.02.2014 in open Court. These are the detailed reasons for the same.
J U D G E