1989 PLP 1967 (CLC)

This is an appeal directed against the order of the Rent Controller, whereby the application filed by the respondent/landlady for ejectment of the appellant, has been allowed.

2. Briefly the facts are that the respondent had filed a rent case for ejectment on the grounds of damages caused by the appellant to the shop in question which materially impaired value and the utility of the same. The landlady has alleged that the appellant who is her tenant in Shop No.8 of Nazar Manzil, Kamil Gali, No.l, Mithadar, Karachi, has broken the floor of the shop and brought the same to the level of other adjoining shops and that he has; constructed a Do‑Chhatti by inserting slabs m the walls, whereby, he has damaged the structure of the building consisting of a number of shops and flats. The rent case was filed initially in the year 1982, which was allowed by the Rent Controller against which order, an appeal was filed before this Court, being F.RA. No.181/1985. The said first appeal was allowed by Syed Haider Ali Pirzada, J vide an order passed on 1‑1‑1987, whereby, the order of the Rent Controller was set aside and the case was remanded for allowing an opportunity to parties to lead evidence and to the architectural damage, if any, or any other evidence which. the parties may wish to lead. That, after the remand of the case, the respondent/landlady led further evidence and produced more witnesses and the Rent Controller was pleased to allow the application and ordered the ejectment of the appellant.

3. I have heard the learned counsel for the parties. Syed Inayat Ali, appearing for the appellant, has drawn my attention to the three affidavits filed by the present respondent. The first one was filed on 19‑10‑1982 and she was cross -examined on 13‑4‑1983, while the second affidavit was filed by her after remand of the case on 2‑5‑1987 and an additional affidavit was filed by her on 17‑5‑1987. The landlady also filed the affidavits of two witnesses, namely, Lal Muhammad, claiming to be the Thekedar of the building which was constructed under the supervision of one Ali Muhammad, Architecture, and Abdul Ghafoor Khan, claiming to be a registered Building Designer, who is said to have designed the said building, wherein the shop in dispute is situated. She also produced certain photographs and examined her brother Mumtaz Ali, the photographer, while the present appellant examined one Muhammad Yousaf Ghauri and relied on the evidence of the appellant himself and three other tenants of the same building who were examined prior to the remand of the case. Syed Inayat Ali has referred to the provisions of Section 15(2)(iv) of the Sind Rented Premises Ordinance, 1979, which reads as under‑.‑ "The tenant has committed such acts as are likely to impair the material value or utility of the premises." He has contended that it is not only the mere damage which will render the tenant liable to ejectment but the landlord is required to prove that the damage is such as has in fact impaired the value and utility of the premises. He has placed reliance on a number of cases. However, the very language of the Section itself show that the landlord has to prove the following aspects of the case:‑ (a) the damage or addition or alteration was caused by the tenant during the currency of the tenancy; and (b) the said damage is such which has factually affected the value and utility of the premises.

4. Dealing with the question at (a) above, Syed Inayat Ali, learned counsel for the appellant, has placed reliance on the case of Muhammad Yamin v. Mrs. Khaliq Begum 1988 CLC 1297, wherein it has been held:‑ "Therefore, it was necessary for the respondent to establish that the intervening wall existed before the premises was rented out to the appellant and that during the currency of the tenancy it was removed without the consent of the respondent and that it has materially impaired the value and utility of the shop. So far the existence of the wall is concerned the learned counsel for the respondent has contended that the fact that there are two shops and two doors it should be presumed that there were separate shops divided by a wall between them. This question of fact cannot be decided on the basis of inference. The respondent could have proved his case by examining neighbours to establish that wall existed between the two shops." The learned counsel for the appellant has pointed out that there is absolutely no evidence on the record to show as to when the present appellant had committed the alleged acts. The landlady states that it was reported to her that the appellant had caused the alleged damage but she had not disclosed the name of the person who informed her nor examined the same. The learned counsel further contended that after remand of the case the landlady had tried to improve upon her case by examining the said two witnesses, namely, Abdul Ghafoor and Lal Muhammad who claimed to be the Designer and Thekedar respectively. It is further contended that the said witnesses are said to have examined the premises on 25‑4‑1987 and that all they have said is that the alleged additions, alteration existed in the premises, but they have not disclosed as to when the same were made or who made them. The learned counsel has also submitted that the landlady had never claimed in her first affidavit filed in October, 1982, as to whether she had got the premises examined and inspected by the said two witnesses nor their names were disclosed by her at that time. As against this, the learned counsel has relied on the other tenants of the same building, namely, Abdul Sattar, Muhammad Saeed and Muhammad Siddique, whose affidavits‑in -evidence were filed on 30‑5‑1983 and all of them have specifically stated that their tenancy was prior in time to the present appellant and that at that time also said Do‑Chhatti and slabs did exist. He has contended from this that these affidavits will clearly show that it was not the present appellant who had constructed the said Do‑Chhatti or inserted the slabs in the walls of the building. As far as the question of removing the cemented floor of the shop in question and bringing the same at lower level is concerned, there is no evidence on the record to show that the same was done by the present appellant, while the evidence of the abovesaid three tenants of the said building would show that the present appellant had done nothing in the premises. These three witnesses have been cross‑examined but their evidence has not been shattered.

5. On the second aspect with regard to impairing the value and the utility, the learned counsel for the appellant has argued that no evidence has been brought on record by the respondent to prove the same. All that her witnesses Abdul Ghafoor and Lal Muhammad said that some damage has been caused but none has specified as to what is the extent of damage and how that has affected the value and the utility of the same.

6. Mr. Khaliq Humayun, learned counsel for the respondent, repelling the above contention of the appellant's advocate, has relied on the affidavits of the landlady herself and her two witnesses Abdul Ghafoor and Lal Muhammad. He has also placed reliance on the cases of Nighat Yar Khan v. Hamida Khatoon 1982 CLC 593 and Mst. Akhtar Sultana v. Dr. Abdul Rauf Nagi PLD 1978 Lah.

347. In my view, both these cases cited by the learned counsel are not relevant for the purpose of this case, as the point in issue in the present case is not as to whether any addition or alteration is made or damage is caused but as the very language of the above section 15(2)(iv) of the Sind Rented Premises Ordinance, 1979, would clearly shows that the words damage or addition or alteration are not used therein but it is said that the tenant should have committed such acts which are likely to impair the material value or utility of the premises. Therefore, as submitted by the learned counsel for the appellant, the burden is on the landlady in the present case to have brought in evidence as to how such acts would have affected the value of the premises.

7. From the above discussion and the material on record, I am of the view that the respondent has failed to prove the fact that the said acts of breaking the floor and construction of Do Chhatti and installation of slabs were committed by , the appellant and also that the same have impaired the value and the utility of the premises. 1, therefore, allow the appeal, set aside the order of the Rent Controller and dismiss the Rent Case No.1106/1982 filed by the present respondent. However, there will be no order as to costs. H.B.T./M‑822/K Appeal allowed.