2013 PLP 1727 (CLC)

ABDUL RASOOL MEMON.J.

By this constitutional petition the petitioner has challenged the order dated 10-2-2007 in First Rent Appeal No.149 of 2006 passed by VIIth Additional District Judge, Karachi South, whereby he dismissed the F.R.A. preferred by the petitioner/tenant and maintained the order dated 27-2-2006 passed by Xth Rent Controller, Karachi South, whereby the Rent Controller had proceeded to allow the Rent Case No.525 of 1998 filed by the respondent/landlord and directed the petitioner/tenant to hand over the vacant peaceful possession of the demised premises to the respondent/ landlord within thirty days from the date of that order.

2. Brief facts of the case are that the respondent is landlord and owner of building known as Swami Narain Temple Estate Trust Building and the petitioner is tenant in respect of Godown No.246 in the said building. The respondent filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979 seeking ejectment of the petitioner solely on the ground that the petitioner without permission of the respondent has raised illegal construction and constructed various rooms on the roof of the demised property and even without obtaining any approved plan from the competent authority.

3. The petitioner filed his written statement denying the averments of the ejectment application and prayed for its dismissal.

4. Before the learned Rent Controller, the President of the Trust Teck Chand Khetpal son of Sadarang Khetpal filed his affidavit in evidence supporting the contention of the ejectment application. The petitioner also filed his affidavit in evidence and he was cross-examined. The learned Rent Controller heard the arguments of the parties and framed the following points for determination: (1) Whether the opponent has made addition alteration or construction without consent or permission of the applicant? (2) What should the order be? The point No.1 was replied in affirmative and the ejectment application was allowed. The petitioner filed appeal before the learned District Judge, which was dismissed by the impugned judgment. Hence this constitutional petition.

5. I have heard Mr. Rafiq Ahmed Kalwar Advocate for the petitioner and Mr. Neel Keshav Advocate for the respondent.

6. Learned counsel for the petitioner argued that the judgments of both the Courts below are based upon misreading and non-reading of evidence and are liable to be set aside. He contended that both the courts below have failed to appreciate that the cause of action as regards construction on the roof of the demised premises accrued to the respondent in the year 1978, whereas the respondent filed rent case against the petitioner in the year 1998 after a period of twenty years, which is hit by principle of laches and is not maintainable in law. He argued that prior to filing of the present rent proceedings the respondent also filed two ejectment applications against the petitioner one on the ground of default in payment of rent and another for determination of fair rent in the years 1978 and 1991 respectively, but he did not raise the ground of the alleged illegal construction over the demised premises although the same was available to him at that time, thus he waived his such right, which cannot be agitated now.

7. He contended that it was the duty of the respondent to carry out repairs of the demised premises from time to time which he deliberately and wilfully failed to discharge and the demised premises was left to collapse therefore the petitioner was left with no option but to repair and carry out the requisite constructions.

8. He next contended that no written tenancy agreement existed between the parties and on the basis of verbal tenancy agreement the ejectment proceedings are not maintainable.

9. He argued that the construction raised by the petitioner over the demises premises has raised the value and utility of the demised premises which was in a dilapidated condition at the time of acquiring of possession, thus, the contention of the respondent that the value of the demises premises was impaired is not justified. He argued that if the petitioner had any objection to the construction on the demised premises the petitioner ought to have taken such objection at that time, which was not done, therefore, it is established that the construction was raised by consent and permission of the respondent.

10. In support of his contentions he has placed reliance on the following cases:

(1) AMINA BEGUM v. IQBAL HUSSAIN (1988 CLC 1816). (2) SHAFQAT ALI KHAN v. MAHBOOB ALAM (1993 MLD 219) (3) ZAINAB BAI AND 2 OTHERS v.. SHAFIUDDIN (PLD 1987 Karachi 116) (4) MUKHTAR AHMED v. IIIRD ADDITIONAL DISTRICT JUDGE, AND OTHERS (2004 MLD 713) (5) HABIB BANK LIMITED v. MUHAMMAD RAZA (1997 MLD 833) (6) MUHAMMAD SAEED v. UNITED BANK LIMITED, KARACHI (1993 CLC 1830) (7) MUSHTAQ AHMAD AND OTHERS v. MEHMOOD AHMAD and others (2005 CLC 1827) (8) PAKISTAN STATE OIL COMPANY LIMITED v. SIKANDAR A. KARIM and others (2005 CLC 3) (9) Mst. SURIYA SULTAN v. M.I. MALIK (1988 MLD 2936) (10) K.C. Mamoo v. Mrs. BADRUNNISA (1985 CLC 332)

11. The learned counsel for the respondent has contended that no evidence is brought on record whereby it may be established that the construction was completed in the year 1978 hence the question of laches or waiver cannot be raised at this stage; that the plea of waiver or estoppel was not raised by the petitioner in the pleadings before the trial Court and the question of waiver being a mixed question of law and fact must be pleaded initially and the evidence be adduced thereon; that the earlier round of litigation has no nexus with the present proceedings as the earlier rent applications were filed on the ground of default in payment of rent and for fixation of fair rent; that the waiver can only come in play when there is no resistance that the letter produced at (P-4) clearly shows that the construction was stopped on the resistance of the respondents therefore the implied consent cannot be pleaded by the petitioner; that in the letter produced by the petitioner it is clearly mentioned that only permission for roof treatment was granted to the previous owner; that the construction was not raised with permission and basic structure has been changed and two rooms have been constructed over the roof of the demised premises without the permission of the respondent which fact is even admitted by the witnesses of the petitioner; that the demised premises was go-down and now it has been converted into offices. In support of his contentions he has relied on the following case-law. (1) Khalifa FATEH MUHAMMAD v. AHMAD NASIR KHAN (1988 SCMR 689) (2) LAL KHAN through Legal Heirs v. MUHAMMAD YOUSAF through legal heirs (PLD 2011 SC 657) (3) MANAK LAL, Advocate v. Dr. PREM CHAND SINGHVI and others (PLD 1957 SC (Ind.) 346) (4) Mst. BILQIS SULTANA v. SETTLEMENT COMMISSIONER, LAHORE and 2 others (PLD 1975 Lahore 185) (5) DANISH IQBAL v. Syed ZAHEERUL HASAN (1986 CLC 981) (6) ANJUMAN HIMAYAT-E-ISLAM, LAHORE v. DR. SYED FAROOQ HASSAN (PLD 2007 SC 352) (7) MASOODA BEGUM through legal heirs v. GOVERNMENT OF PUNJAB through Secretary Forest, Lahore and 9 others (PLD 2003 SC 90). (8) MUHAMMAD YOUNUS KHAN and 12 others v. GOVERNMENT OF N.-W.F.P. through Secretary, Forest and Agriculture, Peshawar and others (1993 SCMR 618) (9) MUHAMMAD SHARIF AND ANOTHER v. MUHAMMAD AFZAL SOHAIL AND OTHERS (PLD 1981 SC 246) (10) ABDUL AZIZ BUTT v. MUHAMMAD ARSHAD AND ANOTHER (1985 MLD 148) (11) M. IMAMUDDIN v. MST. SURRIYA KHANUM through Legal Heirs (PLD 1991 SC 317) (12) LITHOCRAFT CORPORATION v. A. HABIB through his 9 Legal Heirs (1988 CLC 272)

12. I have considered the arguments of both the learned counsel and have gone through the case record so also the case-law cited by them.

13. It is admitted fact on record that relationship of landlord and tenant exists. The respondent has filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979, stating therein that the opponent without permission of the applicant orally or written raised illegal construction over the roof of the demised property and has constructed various rooms thereon.

14. Per section 15(2)(3)(C) of the Sindh Rented Premises Ordinance, 1979 Rent Controller shall make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order if he is satisfied that the tenant without the written consent of the landlord has infringed the condition on which the premises was let out. Section 15(2)(iv) of the Ordinance, 1979 further provides that Rent Controller can make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order if he is satisfied that the tenant has committed such act as are likely to impair the material value or utility of the premises.

15. In the light of the above cited provisions of law it is now to be seen whether the tenant without written consent of the landlord has infringed the condition and thereby impaired the material value or utility of the premises.

16. The other point which has been raised in the grounds of this petition is that the respondent has filed two rent cases one being Rent Case No.524 of 1998 and other being Rent Case No.525 of 1998 on the ground of default and for determination of fair rent, but this ground of alleged illegal and unauthorized construction, which was allegedly raised in the year 1978 was available to the respondent, but was not taken by the respondent, thus, there are laches on his part. It is worthwhile to mention here that on the point of permission there is simple denial in the written statement. The respondent has filed affidavit of the President of the respondent-Trust Teck Chand Khetpal son of Sadarang Khetpal and in the said affidavit in evidence also he has taken specific plea regarding raising construction of rooms over the roof of the demises premises. In cross-examination to this witness the counsel for the petitioner/tenant could not bring anything contrary to the assertions made in his affidavit in evidence. While in affidavit in evidence the attorney of the petitioner Waseem Ahmed Shamsi has stated that since the previous tenant could not carry out the required repairs on the roof of the demised premises, which was allowed by the petitioner, as such after taking the property the petitioner vide his letter dated 20-2-1976 and 25-6-1976 pointed out the damaged condition of the roof of the demises property and the respondent allowed the petitioner to carry out the repairs so as to run their business. Copy of such letter is placed on record. In cross-examination this witness in clear terms has admitted that the earlier tenant Tahir was permitted by the Trust to repair the roof and not to construct the rooms over the roof of the demised premises. He also admitted that it is correct that there are offices on the roof of the demises premises. He has also admitted that the applicant restrained them from doing so. He also admitted that he was not inducted on payment of pagri. The letter by which the petitioner claims to have been permitted to raise construction dated 3-1-1976 reads as under:

"With reference to your application dated 11-4-1975, I write to inform you that the Board of Receivers have granted you permission to repair roofs of your Godowns Nos.246, 247 and 248 at your own cost which will be the property of the Estate on the following conditions (1) That you will deal with the KDA, KMC or any other competent authority concerned direct and observe their Rule and Regulations and that Estate will not be responsible in matter at any time. (2) That you will maintain the present height of the roof. (3) That breach of any of the conditions will forfeit the permission granted to you and the Estate will be entitled to claim the damages from you."

17. The letters which are produced by the petitioner by seeking the permission also indicates that they have sought permission for repair of the roof. In this context the petitioner witness deposed as under:-- "It is correct that the trust of the applicant did not give permission in writing for repairing of construction. Voluntarily says that they did not reply our letters. It is correct to suggest that we made some repairing in the premises. It is correct to suggest that the applicant restrained us for doing so. It is correct to suggest that earlier tenant Tahir was permitted by the trust for repairing the roof not for constructing the roof."

18. The above admission on the part of the witness of the petitioner wherein he has clearly stated that the respondent-Trust did not give them permission for construction over the roof of the demised premises and he has voluntarily stated that they have made some repairs in the premises. His further admission that the applicants landlords restrained them from doing so and the tenant Tahir was permitted by the respondent-Trust to repair the roof only and not for constructing the rooms clearly indicates that they were not permitted by the respondent landlord to construct the rooms over the roof of the demised premises. On the contrary it is mentioned that they made request in writing but the same letters were not replied. Even then, they without written permission constructed the rooms over the roof of the demised premises, therefore, it is clear violation of the provisions of the Sindh Rented Premises Ordinance, 1979 as provided under section 15(2)(3)(c).

19. Now adverting to allegations of impairing the material value or utility of the demised premises, it is the case of the petitioner that by raising construction over the demises premises it has not impaired the value or utility of the premises. It is admitted fact on record that the petitioner has not made any repair but he has constructed the rooms over the roof of the demised premises therefore this is not the case of impairing the value or utility but it has changed the structure of the demised premises as appears from the report of the Commissioner wherein he has reported as under:

"On the roof of the office, Entire roof of the godowns has been converted into office. There is false ceiling of the office, having marble tiles on the floor, Air conditioner and switch board. The opponent runs business of Chemicals in said office."

20. The above report of the Commissioner clearly reflects that rooms have been constructed over the tenement in question and a separate office has been constructed over the roof of the demised premises and godowns have been converted into office. It is established that the petitioner has constructed the rooms over the godowns without prior permission of the respondent landlord and has thereby made addition and alterations in the demised premises. In similar circumstance ejectment of the tenant ordered by the Rent Controller was approved by the honourable Supreme Court in the case of Ms. ZEBA BAKHTIAR v. ARSHAD SAMI KHAN and 5 others (1998 SCMR 689).

21. For waiver it has come on record that the petitioner has not taken the plea of waiver in the written statement before the trial Court and first time this plea is introduced in an appeal that in the year 1978. The petitioner has raised the construction and thereafter two rent applications were filed by the respondent in the years 1978 and 1991, but this plea of unauthorized construction was not raised by the respondent in those rent applications. Now it is to be seen that whether the respondent was aware of this fact in the years 1978 and 1991 that the rooms were constructed over the roof of the demised premises. On this point no positive material has been brought on record, except that permission letter of the petitioner (P-1) which is reproduced above wherein permission was granted to previous owner Tahir for repair of the roof of the demised premises, which was in dilapidated condition. This letter does not indicate that permission was given to the petitioner for raising the construction of rooms and no evidence has been brought on record by the petitioner that the respondent was in conscious knowledge of this construction. Even the petitioner has not taken the plea in the written statement that he has raised the construction in the year 1978 therefore nothing positive has been brought on record about plea the petitioner regarding raising of the construction in the year 1978. Moreover, the plea of waiver is a mixed question of fact and law and unless such plea has specifically been raised before lower Court and parties have been given opportunity to lead evidence in rebuttal of such plea, it could not be allowed to be raised for first time in appeal. In this regard I am fortified by a judgment in the case of DANISH IQBAL v. SYED ZAHEERUL HASAN (1986 CLC 981).

22. Mere silence to claim or enforce a right for sometime does not amount to a waiver of right. It has been held time and again that the doctrine of waiver would step in only when there is some clear and decisive act or conduct beyond mere silence, as pure silence by a party with regard to a right perfectly known to the other can rarely mislead a man of average intelligence. This dictum is laid down in the case of Mst. BILQIS SULTANA v. SETTLEMENT COMMISSIONER, LAHORE AND 2 OTHERS (PLD 1975 Lah. 185).

23. So far ladies are concerned, the laches operates in equity and in case of latches, the dictates of justice and equity are to be weighed as the legitimate rights cannot be denied on the ground of laches unless it is found that it will cause injustice to the opposite party. Reliance can be placed on a case reported as ANJUMAN HIMAYAT-E-ISLAM, LAHORE v. Dr. SYED FAROOQ HASSAN (PLD 2007 Supreme Court 352).

24. Now reverting to the case-law relied upon by the learned counsel for the petitioner, in all the cases almost minor changes were made. Either the balcony was raised or intervening wall was removed therefore the same alterations was treated not coming within the meaning of impairing the utility or value of the property. Therefore the said case-law is not applicable in the circumstances of this case as in the instant case the very structure of the demised premises has been changed without consent of the respondent landlord. Therefore, it is to be treated to impair the value and utility of the demise premises.

25. In view of my above discussion I am of the opinion that the opinion that the judgments of the two Courts below are not outcome of any misreading or non-reading of the evidence which may require interference by this Court in exercise of its writ jurisdiction under Article 15 of the Constitution. I therefore find no merits in this Constitutional Petition which is dismissed accordingly. SAK/H-6/K Petition dismissed.