2025 Y L R 657
[Balochistan]
Before Shaukat Ali Rakhshani, J
ABDUL RAUF KASI ---Appellant
Versus
Syed NIZA -UD-DIN and another ---Respondents
F.As.Os. Nos. 36 and 37 of 2022, decided on 19th June, 2023.
Balochistan Rent Restriction Ordinance (VI of 1959) ---
----Ss. 13 & 15--- Ejectment of tenant--- Sub-letting ---Default in payment of monthly rent-
--Non -appearance for cross -examination ---Effect ---Appellant / landlord was aggrieved
of dismissal of his application seeking ejectment of respondents / tenants ---Validity ---
Respondent / tenant was statedly a subletee, who at no point of time during the course of
eviction proceedings turned up to contest eviction application---Absence of respondent / subletee impliedly led to infer that he had no defence to offer and whatever appellant / landlord had pleaded was true ---Respondent / actual tenant also did not appear before
Rent Controller to face cross -examination despite availing several opportunities ---Non -
appearance for cross -examination by respondent / tenant demonstrated that he was
reluctant to be tested through cross -examination and his affidavit on record was
unworthy of consideration---Assertion of appellant / landlord went uncontested, with no other view that his claim was correct and worthy of credence--- When contents of
pleadings were not substantiated through evidence, more particularly through testimony of parties in lis, pleadings had no evidentiary value ---High Court set aside order passed
by Rent Controller and directed respondents / tenants to hand over vacant possession to appellant / landlord---Appeal was allowed, in circumstances.
State Life Insurance Corporation of Pakistan v. Sami -ur-Rehman 2018 SCMR 443;
Hakim -ud-Din v. Faiz Bakhsh 2007 SCMR 870 and Musrat Begum v. Ghulam Ali 1996
SCMR 1799 rel.
Behlol Khan Kasi for Appellant.
Jamil Shah for Respondent No. 1.
Date of hearing: 26th May, 2023.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J .---The captioned appeals stem from judgments
and decrees dated 27.05.2022 ("impugned judgments") handed down by learned Civil Judge -
V-Rent Controller, Quetta, whereby eviction application under section 13 of the Balochistan
Urban Rent Restriction Ordinance VI of 1959 filed by the appellant was dismissed.
2. Relevant facts of the case are that the appellant is the owner -landlord of shop Nos.8
and 9 ("shops in question"), situated at Sirki Road near Anwar Shah Street, Quetta, which were rented out to respondent No.1. The appellant asserts that respondent No.1 subletted the shops in question to respondent No.2 without the consent and permission of the appellant and has made defaults in payment of rent at number of times and had been depositing the rent of shops in question in the name of the appellant in CCD account of the Rent Controller. Thus, having violated the terms of tenancy, the appellant has filed the instant eviction application before learned Rent Controller, Quetta. Respondent No.1 by means of rejoinder contested and resisted the eviction application, denying the allegations of default in payment of rent as well as subletting the shops in question to respondent No.2 and came up with a plea that in shop No.8, respondent No.2 is running the business of furniture as partner, whereas in shop No.9 respondent No.2 is working as his employee.
Respondent No.2 was proceeded against ex- parte, when despite service he did not turn up,
thus no defence is available on his part.
3. In view of the conflicting pleas of the parties, the Rent Controller cast the following
issues;
"1. Whether demised shop has been subletted by the respondent No. 1 to respondent
No. 2?
2. Whether applicant is entitled to the relief claimed for?
3. Relief?"
4. In order to substantiate the contents of the eviction application, the appellant
produced Khuda -e-Rahim (AW -1), Malik Bilal Hussain (AW -2) and Waqar Ahmed (AW- 3),
whereas, on the other hand, respondent No.1 produced Syed Attaullah (RW -1), Syed Abdul
Waheed (RW- 2), but did not record his own statement.
5. On conclusion of the eviction proceedings, learned Rent Controller vide judgments
and decrees dated 27.05.2022 dismissed the eviction application filed by the appellant.
6. Heard. Record vetted with the valuable assistance of learned counsel for the
adversarial parties. The appellant seeks eviction of respondents NoS.1 and 2 on the ground of
default in payment of rent and subletting of the shops in question to respondent No.2, which
contentions have been vigorously resisted and denied by respondent No.1. According to
respondent No.1, since respondent No.2 had ample experience of the business of furniture as
such he entered into a partnership agreement with respondent No.2 to run furniture business.
As a matter of fact, the tenancy between the appellant and respondent No.1 is not an
issue. The plea of respondent No.1 that respondent No.2 is his business partner in shop No.8 and employee in shop No.9 sounds strange and improbable for manifold reasons, which shall be discussed ahead. There is also no denial that respondent No.1 has no written permission from the appellant to start business with respondent No.2 or to make him in-charge of his business in shop No.8. Respondent No.1 has also failed to bring on record any document or record of accounts of his business with respondent No.2. Similarly, respondent No.1 has also neither produced any oral tangible evidence to prove that respondent No.2 was his employee in shop No.9 nor tendered any salary slip etc or any other documentary evidence to substantiate his version. The appellant has amply established that the tenancy has been surrendered in favour of the sub- tenant i.e.
respondent No.2 without consent and permission of the appellant through the witnesses as well as through his own statement. The apex Court in the case of "State Life Insurance Corporation of Pakistan v. Sami -ur-Rehman" (2018 SCMR 443) held that a tenant was
liable for ejectment for handing over of possession to some other person as according to the landlord the tenant without written consent of the landlord has converted his sole proprietary concern into a private limited company and handed over the possession of the said premises to the company, which was a separate entity, therefore, had sublet the premises and rendered himself liable to ejectment, thus directions were made by the Supreme Court for handing over the vacant possession to the landlord within thirty days. In the said case, while dealing with the question of default in payment of rent, it was observed that the pay orders of rent which were previously sent in the name of tenant were now sent in the name of company, so refusal on the part of landlord to accept such pay orders were considered as default as the later was not the lawful tenant of the landlord.
7. In the instant case, respondent No.2 is statedly a sublettee, who at no point of time
during the course of the eviction proceedings turned up to contest the eviction application, which impliedly leads me to infer that he has no defence to offer and whatever the appellant has pleaded is true.
8. So be it, respondent No.1 being actual tenant also did not appear before the court to
face the cross -examination despite availing several opportunities. Non- appearance for cross -
examination by respondent No.1 demonstrates that he was reluctant to be tested through cross -examination, thus in such circumstances, the affidavit available on record is unworthy
of consideration for the assertion of the appellant went uncontested, whereof it can be
concluded with no other view that the claim of the appellant was correct and worthy of
credence. More so, it is now a settled law that when the contents of the pleadings are not substantiated through the evidence, more particularly, through the testimony of the parties in lis, the pleadings shall have no evidentiary value. In this regard reliance can be placed upon the case of "Hakim -ud-Din v. Faiz Bakhsh" (2007 SCMR 870), wherein it was held;
"It is a settled law that pleadings of the parties are not substitute of evidence and it being not a substantive evidence, the averments made in the pleadings would carry no weight unless proved from the evidence in court or admitted by the other party."
The testimony of Khuda -e-Rahim (AW -1), Malik Bilal Hussain (AW -2) and Waqar
Ahmed (AW -3) as well as the testimony of the appellant have been scrutinized and
scanned, which inspires confidence and rings true, which have not been shattered, whereas the witnesses Syed Attaullah (RW -1), Syed Abdul Waheed (RW -2) have failed to
substantiate the plea of respondent No.1 and have miserably failed to controvert the claim of the appellant, but learned Rent Controller by misreading the evidence has drawn inaccurate conclusion, which has made the impugned judgments and decrees erroneous and culmination of perversity, which cannot be left to hold field. The witnesses of the appellant have proved the ground of subletting, which follows the default in payment of rent. Such
view finds support from the dicta expounded in the case of "Musrat Begum v. Ghulam Ali"
(1996 SCMR 1799), wherein it was observed that;
"However, petitioner No.4 seems to be in possession of the shop and is carrying on the business which was carried on by the partnership firm. There is no evidence to show that after the death of Muhammad Arshad, petitioners Nos. 1 to 3 had entered into a fresh partnership deed with petitioner No.4 which did not create his interest in
the tenancy. In any event the fact that Salahuddin had entered into partnership deed in whose favour right in tenancy had been created, both the Courts were justified in holding that it was a clear subletting of the disputed premises. Furthermore petitioner No.4 is in possession of the shop under some arrangement with petitioners Nos.1 to 3 without the consent of the respondents. In the circumstances subletting has been proved."
9. For what has been discussed hereinabove, the appeal is allowed, the impugned
judgments and decrees dated 27.05.2022 penned by learned Rent Controller are set -aside and
the respondents are directed to hand over the vacant possession of the shops in question to the appellant within three months and they are further directed to pay the monthly rent till satisfaction of the decree.
The parties at lis shall bear the expense on their own.
MH/150/Bal. Appeal allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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