1988 PLP 1297 (CLC)

(f) Sind Rented Premises Ordinance (XVII of 1979)‑‑ ‑‑‑S. 15 (2)(iv)‑‑Impairing material value and utility of premises‑ Proof‑‑Where there was likelihood of damage to property by unauthorised alteration of tenant, ejectment, held, would be granted. (g) Sind Rented Premises Ordinance (XVII of 1979)‑‑ ‑‑‑S. 15(2)(iv)‑‑Damage to property‑‑Inference‑‑No evidence on record available to show that disputed water tank was constructed with water proof device to avoid leakage of water‑‑Inference could be drawn that unauthorised alteration in building made by tenant was likely to damage building. A I R 1952 Mad. 187; 1985 C L C 332, P L D 1983 Kar. 162 and N L R 1984 Civil 699ref. Feroz Khan for Appellant. Ch. Iftikhar Ahmed for Respondent. Date of hearing: 4th February, 1987. The respondent filed an application for ejectment against the appellant in respect of two shops rented out to him on ground of (1) default (2) unauthorised construction of water tank in the disputed premises without the consent of the respondent which has damaged the value and utility of the premises, (3) removal of partition wall between the two shops which has materially impaired the value and utility of the building and (4) personal bona fide requirement for herself as well as for her son. The learned Controller by his impugned order held that no default has been committed and this finding has not been challenged by the learned counsel for the respondent. In respect of other issues the learned Controller has given his finding in the affirmative and passed order for ejectment of the appellant. So far the question of personal requirement of the respondent is concerned it was pleaded in para. 5 of the application that the premises is required by the applicant for her bona fide and personal use and for the use of her family members. This was denied by the appellant. In his affidavit of evidence filed by Shahid Ali Baig the son of the respondent and her attorney it was stated as follows:‑ "That the shops Nos. 3 and 4 are required by the applicant for commercial purposes for her son who is having no business place with him and the premises in question are most suitable for the business as such the shops in question are reasonably and in good faith required by her for the use of the same by her son Shahid Ali Baig." In his cross‑examination Shahid Ali has stated that he will carry on business but he was not aware of the nature of business which he intended to start. According to Mr. Feroz Khan, the learned counsel for the appellant the statement of the respondent is sketchy, the nature of business has not been explained and that the evidence on record is not sufficient to establish bona fide requirement of the respondent. On the other hand Ch. Iftikhar Ahmed, the learned counsel for the respondent relying on P L D 1976 Kar. 832, P L D 1985 Kar. 7, 1983 C L C 2222 contended that as the statement of the respondent has remained unchallenged, unrebutted and unshaken in cross‑examination and as nature of business is not necessary to be disclosed, the respondent has established her case for bona fide requirement. In the application the respondent has stated that she requires for herself and her son. The averments made by Shahid Ali Baig have been reproduced above which in my opinion is stereotype statement which does not give any particulars or nature of business. It seems to be a desire on the part of the respondent's son to use the premises for his business. This statement was challenged in cross‑examination and has not remained unchallenged. The burden is entirely upon the landlord to establish that he requires the premises for his personal bona fide requirement. Unless this burden is discharged the onus does not shift to the tenant. Distinction has to be made in cases where personal requirement is pleaded for residential house and a commercial premises. So far the residential premises is concerned if the landlord states that he needs the premises for his personal requirement, he does not own and occupy any other house and the disputed house is suited to his needs, he discharges the initial burden and makes out a case for personal need. But if the premises is required for business purposes then mere statement that he requires the premises for his business purposes is not enough. He should give details and particulars of the intended business which may establish the requirement as distinct from mere desire. In the present case in my view the premises being commercial the statement of Shahid Ali Baig is infirm and does not prove the averments made by him. On this issue the finding of the learned Controller is, therefore, set aside. The second issue is about removal of the intervening wall between Shops Nos. 3 and

4. It is an admitted position that there are two shops which were rented out to the appellant, they have two doors and are occupied by the appellant who is carrying on business there. The plea of the appellant is that this wall did not exist at the time when it was rented out to the appellant. 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. On the other hand Mr. Feroz Khan, the learned counsel has pointed out that there is evidence on record that in this building there are other tenants occupying two shops each without n., case is that the respondent has stated that he came to know about the demolition of the wall in June 1979. It is an admitted position that the respondent lives on Plot No. C‑55 whereas the shop is situated on Plot No. C‑54, therefore, her neighbourhood cannot be denied. The tenancy was created in the year 1971 and the fact that the respondent was not aware of the alleged demolition for the last 8 years cannot be believed. Further it has not been pleaded that the wall was removed in June 1979. It has not been established when the wall was removed. The respondent has thus failed to establish the removal of the wall and, therefore; the question whether it has impaired the value and utility of the building does not arise. Now I come to the issue regarding unauthorised construction of water tank in the disputed premises which according to the respondent has impaired the value and utility of the shop. The area of disputed shops has not been given in the evidence but from it is clear that the two shops have been converted into one shop. The area of the water tank is 5 x 4 x

51. The appellant in his written statement pleaded the existence of the water tank from the very beginning. The relevant portion is reproduced as follows:‑ "The water tank is in existence from the very beginning of tenancy within knowledge of the applicant and with her permission and has been approved and passed by K.M.C. Authorities under no objection of the applicant and opponent is paying water charges to K . M. C . regularly." In his cross‑examination the appellant stated that he was given verbal consent of construction of water tank. He further stated that after two to four months after tenancy he had constructed the underground water tank. This version is in complete contravention of the pleading. It is obvious that the pleading and proof on the question of construction of the water tank are completely different. The two pleas cannot run together. They are contrary to each other and completely demolish the appellant's case. Mr. Feroz Khan, the learned counsel for the appellant wanted to interpret the plea raised in the written statement reproduced above and also mentioned in the affidavit of evidence that the water tank was constructed with the permission of ‑the respondent. Such construction cannot be given in preference to the plain meaning of the statement made in the written statement and affidavit of evidence. If there is any ambiguity the benefit could not be given to its author. From the evidence it is clear that the water tank was constructed by the appellant without the permission of the respondent. The next question is whether it has materially impaired the value and utility of the building. The shop was stated to be made of cement blocks while the respondent's attorney has twice admitted that it is made of R . C . C . Pillar. The water tank has been constructed in the floor of the shops. There is no evidence whether it covers the floor of one shop or both shops. But the fact is that it is within the area rented out to the appellant. Naturally after making the water tank it would have been covered and is being used by the appellant for his business purposes. The water tank has been made by the appellant from cement blocks. There is no evidence that the water tank has been constructed with water proof device to avoid leakage of water. Such evidence could have been produced by examining the architect, engineer or contractor who had constructed it. The respondent has categorically stated that it is likely to damage the entire building. Mr. Feroz Khan, the learned counsel for the appellant has contended that the burden was upon the respondent to establish that it has materially damaged the building. In this regard the learned counsel has referred to A I R 1952 tad. 187 but as the provision of law applicable there is not known I will not take it into consideration. The learned counsel has referred to 1985 C L C 332, P L D 1983 Kar. 162, N L R 1984 Civil

699. The law requires that the alterations are likely to materially damage the value and utility of the building. It is not a precondition that the unauthorised alterations have damaged the utility and value of the building. Where there is likelihood of such damage the ejectment will be granted. In the facts and circumstances placed on record an inference can be drawn that the unauthorised alteration is likely to damage the building. The appeal is dismissed. The appellants are allowed six months time to vacate the premises. H . B . T . / M‑365/ K Appeal dismissed.