1984 PLP 1128 (MLD)

(9) That my son Dr. Abdul Sattar is a government servant and presently posted at Thatta. He has got no other house in Nawabshah. (10) That he wants to use the premises in dispute for his personal use as he wants to leave his children for education at Nawabshah. He himself got his education at Nawabshah". He has not been cross-examined by the appellant on this point. The other two witnesses produced by the respondent (Exhs. 32 and 33) have also stated in para. 7 of their affidavits filed in evidence as under:- "(7) That I know that the applicant Dr. Abdul Sattar requires the premises in dispute for his personal use as he wants to keep some of his children at Nawabshah". There is again no cross-examination of these two witnesses on the point of personal need.

4. The appellant, in rebuttal, has examined himself (Exh. 4) and has denied the personal need of the respondent. He also stated that the ground floor was occupied by another tenant Mr. Manzoor Ahmed Memon District Agricultural Supply Officer SASO Nawabshah who has been transferred to Sukkur and the vacant possession of the ground floor of the house was handed over by him to the attorney and father of the respondent on 6-8-1980. In this respect he also referred to the affidavit of Manzoor Ahmed Memon, dated 5-1-1981 which he filed in the Court. He further stated that the said ground floor has been rented out to one Mumtaz Sonaro, Social Welfare Officer, Sanghar who is putting up with his family and his brothers namely Ghulam Husain who is the Manager Allied Bank Ltd., 68th Mile and Muhammad Ayub who is a student of Sachal Sarmast College, Nawabshah. This letting out of the ground floor to Mumtaz Sonaro after it was vacated by Manzoor Ahmed Memon was made during the pendency of the Rent Application. He also produced one witness Haji Deen Muhammad (Exh.47) who very clearly stated in para. 10 of his affidavit about the vacation of and renting of the ground floor. Para. 10 of his affidavit in evidence reads as 'under:- "That I know Mr. Manzoor Ahmed Memon District Agricultural Supply Officer SASO Nawabshah who was putting up in ground floor of the premises rented out to him. He had been transferred to Sukkur and had handed over the vacant possession of the ground floor to the applicant in about August, 1980. Now I find that the same house had been given on rent in November, 1980 to Mr. Mumtaz Sonaro, Social Welfare Officer, Sanghar who is putting up with his family and his brothers". 5.? Neither the appellant nor his witness were cross-examined at all on this specific allegation contained in their evidence.

6. Reading entire evidence adduced by the parties in this case, I find that there is a simple desire of the respondent to send some of his children to Nawabshah where the in-laws of the respondent are living in their own house. There is no evidence as to who are those; children, in which classes they are studying at Thatta and that their education at Nawabshah will be more suited I have to examine the evidence led by the respondent to come to the conclusion whether the need is reasonable and bona fide or not. The evidence led by the respondent lacks in this respect so as to satisfy this Court that the need is bona fide and reasonable. Furthermore it has come in the evidence of the appellant and his witness that the ground floor was vacated by one Manzoor Ahmed Memon who was the tenant of the respondent in August, 1980. This house has been relet to one Mumtaz, Sonaro in November, 1980 during the pendency of the ejectment proceedings. This evidence has gone unrebutted. Even not a single question was asked by the respondent on this specific allegation. I am, therefore, of the view that the respondent has failed to prove that the premises is reasonably and bona fide required by him for his personal use or the use of his children.

7. As regards the ground for ejectment of causing damage to the house at the hands of the appellant which has impaired the value of the house in question, the respondent has examined himself through his father and attorney and two witnesses namely Bakhsh Ali and Muhammad Ismail. Mr. Jhamat Jethanand, learned counsel for the respondent has stated before me the following damage caused to the house:- (a) (i) Roof of the ground floor is deteriorated and the iron gutters have rusted because of percolation of water. (ii) Due to indiscriminate washing of clothes and storage of water in drums in the courtyard. (iii) Flowing of the dirty and filthy water on the outer wall of the house from the first floor near the door of the ground floor has cracked the wall. (b) (i) Installation of handpump. (ii) Taking of new water connection. (iii) Removal of old drainage pipes.

8. It is contended that the first two acts of the appellant have caused damage to the house and affected its value whereas the third act is causing nuisance as well as damage and the last three acts are additions and alterations without the permission of the respondent.

9. Dealing with the first two acts, Mr. Naqashbandi, learned counsel for the appellant contended that there was already a 'Dikki' constructed in the courtyard which is plastered. It has got a separate "Nali" which passes through kitchen, bath room and latrine. He has denied that there is any leakage from the washing place for clothes. He stated that it has not been denied by the appellant in his evidence that the iron gutters and "T" irons have been rusting but according to him the rust has taken place not on account of his washing clothes in the 'Dikky' in the courtyard, a small place reserved for it but due to heavy rain in Nawabshah. There seems to be some force in this contention because had it been the fact of leakage from small place reserved for washing clothes called 'Dikky', the rust would not have reached the entire roof under the courtyard of the first floor.

10. The third act complained of as to the flow of filthy and dirty water on the outer wall of the first floor coming down has resulted in causing cracks in the wall which, according to the witness (Exh.32) has now widened. Besides being an act of nuisance it has also damaged the property. Mr. Naqshbandi, learned counsel for the appellant has conceded before me that there are cracks but they are of very minor nature not directly resulting from the flow of water but due to old age of building. This seems to be correct explanation. As regards the nuisance no evidence has come on record to prove it. Even the tenant of the ground floor has not been examined as a witness who may be directly affected by it.

11. The last three acts i.e. installation of handpump, taking new water connection and replacing the old drainage pipes, simplicitor cannot be said to be the acts of damaging the property affecting its utility and value, Mr Jhamat Jethanand, learned counsel for the respondent contends that these acts are additions and alterations without the permission of the landlord making the appellant liable to be ejected. He places his reliance on a case of this court reported as Mirza Mustafa Baig v. Mst.Khatoon Hadi 1983 C L C 2063. In the case cited a "Pacca" wall had been removed by the tenant without the permission of the landlord. Since it was a structural alteration the etectment was ordered. In the instant case the allegation is that the tenant has installed a water handpump, got a new water connection and has replaced the old drainage pipes. It is disputed fact whether any permission for the abovesaid acts was obtained from the respondent or not. The appellant has alleged in his evidence that such permission was given by the respondent which is denied by the respondent, Mr. Jhamat Jethanand relies on clause (iii) of subsection (2) of section 15 of the Sind Rented Premises Ordinance, 1979 and submits that the appellant has infringed the conditions on which the premises was let out. It appears that no agreement of tenancy has been produced in the evidence and therefore, it cannot be safely concluded that there is any infringement of the conditions of tenancy on which it was originally let out In any case, it cannot be said that by replacing the old drainage pipes or providing new water connection /water pump at the cost of the appellant himself, the property has been damaged thereby affecting its utility or diminishing its value. On the contrary the value of the property ordinarily increases if the old worn out drainage pipes are replaced and new amenities are added to a building.

12. For the reasons discussed above, I set aside the order, dated 30-9-1981 of the Rent Controller and allow this appeal but in the circumstances, there will be no order as to costs. H. B. T.??????????????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.