2016 PLP 1732 (CLC)

MOHSIN AKHTAR KAYANI, J.

Through the instant Constitutional Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioners have assailed the judgment and decree dated 07.11.2015 passed by learned Rent Controller (West) Islamabad, whereby eviction petition filed by respondent No.1 was accepted and the petitioners were directed to hand over the vacant possession of the rented premises i.e. shops Nos.2 and 3, Ground Floor Pacific Center, F-8, Markaz, Islamabad to respondent No.1 as well as the judgment and decree dated 11.02.2016, passed by learned Additional District Judge (West) Islamabad , whereby appeal filed by the petitioners was dismissed.

2. Brief facts leading to the filing of instant writ petition are that respondent No.1 filed an eviction petition under Islamabad Rent Restriction Ordinance, 2001 before learned Rent Controller (West) Islamabad against the petitioners, stating therein that respondent No.1 is Special Attorney of the owners of rented premises i.e. shops Nos.2 and 3 situated on the ground floor of Plot No.8-B, Pacific Centre, F-8 Markaz, Islamabad, whereas the petitioners are tenant in the said shops. First lease agreement was executed on 01-05-2006 between Muhammad Jahangir previous Special Attorney of the owner of the property and Muhammad Tanveer Iqbal/petitioner No.2. The lessee had paid a refundable security of Rs.45,000/- to Muhammad Jahangir/previous Special Attorney and the rent was fixed @ Rs.15,000/- per month. The second rent agreement was executed between Muhammad Jahangir and Waheed Ahmed and Tanveer Iqbal/petitioners Nos.1 and 2 and Rs.100,000/- was fixed as security, in which previous security amount was also adjusted and security amount of Rs.55,000/- is still outstanding. At the time of execution of second agreement rent was fixed @ Rs.16,500/- per month. The said shops at the time of handing over the possession to the tenants were fully furnished with glass walls, wall to wall carpets and also with furniture and five luxury glass top imported tables. The petitioners paid the monthly rent of the said shops till April, 2011 and then stopped the payment of rent and thus become willful defaulter as such petitioners have violated the terms and conditions of the agreement. Moreover, the petitioners have made structural changes in the suit shops by removing central wall of the said shops. Respondent No.1 (landlord) time and again requested the petitioners to pay the outstanding rent from May, 2011 up till now and also not to violate the terms and conditions of the agreement and reconstruct the central wall of the suit shops but they refused to honour the genuine request of landlord, therefore, they are liable to be evicted from the rented premises.

3. From pleadings of the parties following issues were framed. ISSUES.

1. Whether the respondents are willful rent defaulters since April, 2011? OPA

2. Whether the respondents violated the terms and conditions of the agreement? OPA

3. Whether the respondents made structural changes in the demised premises? OPA

4. Whether the petitioner has no cause of action to file the instant suit? OPR

5. Whether the petitioner has not come to the court with clean hands? OPR

6. Whether the petition is no maintainable in its present form? OPR

7. Whether the petition is false, frivolous, vexatious and respondents are entitled to get special costs under section 35-A, C.P.C.? OPR

8. Relief.

4. After framing of the issues, both the parties led their respective evidence and after hearing the learned counsel for the parties, learned Rent Controller (West) Islamabad accepted the eviction petition on the ground of structural change referred in issue No.3 vide order dated 07.11.2015, whereas the ground of rent default as well as violation of terms of agreement was decided in favour of the petitioners.

5. Being aggrieved by the said order, petitioners filed an appeal under section 21 of IRRO, 2001 before learned Additional District Judge (West), Islamabad, which was dismissed vide order dated 11.02.2016.

6. Learned counsel for petitioners contends that the impugned order is result of mis-understanding of law as according to section 17(2)(iii) of IRRO, 2001, eviction can only be ordered, if the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land, whereas both the learned Courts below failed to give any finding on this ground as to whether the removal of the central wall impaired materially the value or utility of the leased premises. Learned counsel for the petitioner further contends that structural change is of temporary nature and is reversible, therefore, eviction could not be allowed on the ground of structural change. The leased property has been given for longer period and tenant can make minor adjustments as per his convenience keeping in view the business in the leased premises. Learned counsel for the petitioners further contends that landlords have enhanced the security to Rs.100,000/- in order to allow the petitioners to adjust the leased property according to their needs. The learned Rent Controller has totally ignored the motive of the landlords as attorney Baber Khan/A.W.1 has categorically stated that the motive for eviction could be for personal need or for selling the property and learned Rent Controller has acted beyond his jurisdiction and it is inalienable right of the petitioners to be treated in accordance with law. Learned counsel for petitioner has relied on 1995 SCMR 194, 1982 SCMR 8, 1999 SCMR 54, AIR 1987 SC 617, AIR 1996 SC 111, 1989 CLC 604, 1989 CLC 599, 1989 CLC 757, 1985 MLD 1530, 2012 SCMR 954 and 2013 CLC 963.

7. Conversely, learned counsel for respondent No.1 has relied upon concurrent findings of the facts recorded by learned Rent Controller as well as first Appellate Court. Learned counsel for respondent No.1 further states that leased shops were given to the petitioners with common wall between the two shops and the petitioners were never granted permission to remove the wall and that the learned Rent Controller as well as first Appellate Court have given their findings and concurrently held that structural change has been made by the petitioners without permission of the landlord. That the portion of statement of a witness which remains un-rebutted during cross-examination is presumed to be accepted by the other party and in the instant matter as the petitioners have failed to cross-examine respondent No.1 on certain points relating to structural change, therefore, the stance of respondent No.1 would be deemed to have been accepted by the petitioners. Even respondent No.1 has taken specific stance that the petitioners in their written reply before the learned Rent Controller have taken evasive denial regarding structural changes, hence, the same could not be considered as specific denial. Learned counsel for respondent No.1 has relied upon 2015 YLR 500, 2011 MLD 373, PLJ 2009 Lahore 671 and 2015 YLR 2290.

8. I have heard the learned counsel for the parties and have gone through the record.

9. Perusal of the record shows that shops Nos.2 and 3 Ground Floor of Plot No.8-B, Pacific Centre, F-8 Markaz, Islamabad are owned by the three landlords, who appointed respondent No.1 as their special attorney for the purpose of eviction of petitioners, although the lease agreements dated 01.05.2006 and 5.11.2010 are admitted by the parties and the rate of rent is also admitted. However, question of structural change was specifically raised in the eviction petition and the petitioners resisted the same. Respondent No.1 while taking specific stance has categorically stated that the petitioners have made structural change in the leased shops and have removed the central wall of the said shops, hence, they violated the terms and conditions of the agreement although the petitioners were specifically directed to reconstruct the same but so far they have not placed any evidence on record, through which they can justify that they have constructed the wall between the said shops. Respondent No.1 appeared as A.W.1 and has taken specific stance regarding removal of the central wall of the said shops. In Para No.4 of Exh.A.2, all the details of fixtures and fittings have been mentioned but during the cross-examination, the petitioners have not suggested that no structural change has been made, even otherwise the allegation of structural change has not been controverted during the cross-examination.

10. Tanveer Iqbal/petitioner No.2 appeared as R.W.1 and in Exh.R.l he has only taken the stance that they have improved the said leased shops after due permission of Muhammad Jehangir, Special Attorney, however, he has not uttered a single word regarding structural change in examination in chief, rather during the cross-examination he has admitted that From the above referred statement of petitioner No. 2, it is proved for all intents and purposes that improvements have been made in the shops by removing the central wall and as such no further evidence is required to substantiate this plea of respondent No.1 that tenants have made structural changes in the rented premises. Even otherwise, petitioner No.2 has admitted in his evidence that he could not produce any written permission before the Court.

11. The term "structural change" in section 17(2)(iii) of IRRO, 2001 is tagged with specification i.e. "impair materially the value or utility of the building or rented and" but the said concept would be available for discussion only if the petitioners had given any suggestion or had taken any plea in their written reply or evidence that removal of central wall does not impair materially the value or utility of the rented building but the entire pleadings of the petitioners are silent to that extent, although learned counsel for petitioner has given the definition of material alteration from the Black's Law Dictionary, which is as follow:-- "alteration. (1803)

1. Property. A substantial change to real estate, esp. to a structure, usu. not involving an addition to or removal of the exterior dimensions of a building's structural parts. Although any addition to or improvement of real estate is by its very nature an alteration, real estate lawyers habitually use alteration in reference to a lesser change. Still, to constitute an alteration, the change must be substantial

not simply a trifling modification. material alteration. A significant change in something; esp., a change in a legal instrument that alters the instrument's legal meaning or effect. structural alteration. (1905) A significant change to a building or other structure, essentially creating a different building or structure."

12. Learned counsel for the petitioners has also relied upon 1995 SCMR 194 (Intezar Ahmed Khan v. Mst. Khatoon Hadi and another), in which it was held that:- "In support of above appeals Mr.Talmiz S. Burney has relied upon the unreported judgment of this Court in C.A. No.155-K/82 (Mirza Mustafa Beg v. Mst. Hadi Khatoon), decided on 2-6-1991, the relevant portion of which has been quoted in the leave granting order which reads as follows:-- "The question agitated before us is that in spite of removal of the wall it was necessary for the respondent to have proved that such removal has materially impaired the value and utility of the building. According to Mr.Muzaffar Ali Khan, learned Advocate-on-Record for the appellant, there is nothing on record to prove this fact. We have examined the evidence of the parties and find that both the learned Courts have presumed that removal of wall automatically amounts to causing material impairment of the value and utility of the building. Such presumption cannot be drawn from each and every unauthorized act. However, there may be cases in which such presumption cannot be ruled out. If any tenant makes structural changes, closes down or removes the windows, doors and the staircase then in such circumstances and subject to the facts of the case the Court will be justified to presume that value and utility of the building has been materially impaired. The unauthorized act in the present case is not of a nature from which such conclusion can be drawn." Similarly in 1982 SCMR 8 (Haji Sh.Fazal Elahi v. Sh.Muhammad Ayub and others) it was held that:- "It may, at once be said, that from the finding that the premises was converted from residential to commercial use; indeed that the very purpose for which tenancy was created being for use as a residential hotel, it follows that suitable changes in conformity with its intended use, were implicit in such agreement between the parties. It could not, therefore, be held that the making of these changes ipso facto impaired the utility of the building. However, this is precisely what the High Court held, as shown above. The real question, for consideration, that emerged from the aforesaid finding was whether the tenants had used the premises in such a way as to impair its value or utility". In 1999 SCMR 54 (Messrs Organon Pakistan (Pvt.) Ltd. v. Rafat Ali Khan) it was held that:- "There can be little cavil with the proposition that mere impairment is not enough to sustain an order of eviction under the above clause. The impairment has to be material. However, such impairment can be either of the value or of utility of the premises, the two being separated by the disjunctive word "or". Even then, eviction may also be based upon a finding that a particular act or omission has materially impaired both the value and utility of the premises because if one of the same qualifies a case for eviction, both can do no other". In AIR 1987 SC 617 (Om Prakash v. Amar Singh and another), it was held that:- "In determining the question the Court must address itself to the nature, character of the constructions and the extent to which they make changes in the front and structure of the accommodation, having regard to the purpose for which the accommodation may have been let out to the tenant. The Legislature intended that only those constructions which bring about substantial change in the front and structure of the building should provide a ground for tenants' eviction, it took care to use the word "materially altered the accommodation". The material alterations contemplate change of substantial nature affecting the form and character of the building. Many a time tenants make minor constructions and alterations for the convenient use of the tenanted accommodation. The Legislature does not provide for their eviction instead the construction so made would furnish ground for eviction only when they bring about substantial change in the front and structure of the building. Construction of a Chabutra, Almirah, opening a window or closing a verandah by temporary structure or replacing of a damaged roof which may be leaking or placing partition in a room or making similar minor alterations for the convenient use of the accommodation do not materially alter the building as in spite of such constructions the front and structure of the building may remain unaffected. The essential element which needs consideration is as to whether the constructions are substantial in nature and they alter the form, front and structure of the accommodation." In AIR 1996 SC 111 (Pratap Narain and Another v. District Judge, Azamgarh), it was held that:- "Therefore, even if it is held that the structural changes were made by the appellant with out the consent of the landlord, the suit could not be decreed unless it was further found that the changes resulted in diminishing the value of the building. The High Court has not adverted to this aspect at all. Since the High Court omitted to record the findings on a vital aspect, the order passed by it cannot be maintained". In 1989 CLC 599 (Syed Qudrat Ali v. Mst.Maqbool Fatima and 3 others), it was held that:- "The word 'impair' connotes the idea of making worse, less valuable or weaker; of lessening injuriously; of damaging. In order to establish the acts likely to impair the value or utility of a building much more convincing evidence was required than the one produced by the appellant. Even the technical evidence to show that the floor of the shop was damaged due to the acts of respondents is lacking in this case." In 1985 MLD 1530 (Badiul Hasan v. Munawwar Hussain), it was held that:- "There is no evidence on the file that the respondent by his act caused such damage to the property which reduced its value or utility. The controversy was only with regard to Machan. The respondent in his evidence has totally denied having caused any damage to the premises or having made any addition and alteration which could impair the value and utility of the premises. Section 13(2)(iii) provides that the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land. It is, therefore, quite clear that only alteration and addition could not be considered such an act which makes the tenant liable to eject unless the same impairs materially the value or utility of the building. Since the legislature has qualified the acts which render liable the tenant to be ejected as these impairing materially the value or utility, the mere statement about alleged raising of 'Machan' cannot be considered to be sufficient for making the tenant liable to eviction. It seems that the learned Rent Controller rightly decided the issue in the negative." In 1995 SCMR 730 (Hafiz Muhammad Ishaq v. Ch. Muhammad Siddique), it was held that:- "There should have been a clear finding by the Rent Controller on the above points, but he as well as the High Court had not recorded any finding that the appellant had committed default or impaired value and utility of the building in question".

13. From the careful perusal of above referred judgments, a prudent mind reaches to a conclusion that in order to prove a case within parameters defined in Section 17(2)(iii) of IRRO, 2001, concept of structural changes made by tenant is to be proved within the specification of "impair materially the value or utility of the building" and in some cases the removal of wall is to be considered with reference to foundation of the building, in which an expert evidence is required. However, in cases referred above by learned counsel for the petitioners, the tenants have taken specific stance and raised all these questions as to whether the structural change made with or without consent of landlord, impair materially the value or utility of the building or not? Whereas the present case is quite distinguishable from the above referred cases that the petitioners/tenants have not admitted in written reply that they have made any structural changes or removed the central wall rather they have denied this stance of respondent No.1 out-rightly. Even otherwise, the petitioners have not mentioned a single word or suggestion in Exh.R.1 by giving explanation of material impairment whereas the learned counsel for the petitioners has argued the case on the strength of above referred judgments and tried to persuade this Court that removal of wall does not impair the value or utility of the leased shops but surprisingly the entire evidence is silent about this aspect and the arguments advanced by learned counsel for the petitioners are not based upon evidence got recorded by the petitioners before the learned Rent Controller.

14. Keeping in view the arguments of learned counsel for the petitioners, I am of the view that the case laws referred by learned counsel for the petitioners are based upon sound principles of law but the basic criteria is to give an explanation in favour of structural change in the pleadings and when there is no such plea raised or explanation tendered by the tenants, it means that they have taken evasive denial of the material question, especially when the allegations have not been controverted in the cross-examination or there is omission to cross-examine the statement of opponent then the same would amount to admission. In this regard, I am fortified with the view taken in the judgment reported as 2012 SCMR 954 (Abdul Rehman and another v. Zia ul Haq Makhdoom and others), in which it was held that:- "For the alleged omission to cross-examine the statement of respondent and the effect thereof is concerned, it is held that the general statement in the examination-in-chief not containing the concrete and material facts, does not attract the rule, rather the rule shall be applicable, where the specific and material fact of utmost importance, with significant impact on the case remain unchecked in the cross-examination, we find that this is not the position in the case in hand".

15. The material question of structural change referred in the pleadings and in evidence of the parties is reproduced hereinbelow:-- Eviction petition of respondent No.1. Grounds Written reply of the petitioners. 6-C) That the Lessees/ respondents made structural changes in above said shops by removing central wall of said shops, hence liable to be evicted. That para No.6-C is vehemently denied being incorrect. Evidence Ex.A1 Babar Khan Evidence Ex.R1 Tanveer Iqbal (5) That further the Lessees/respondents violated the terms and conditions of the agreement and Lessees/ respondents have also made structural changes in above said shops by removing central wall of said shops, hence, respondents are liable to be evicted from the said shops. Evidence Ex.A2 Muhammad Jahangir Cross-examination of Tanveer Iqbal 5) That further the Lessees/respondents violated the terms and conditions of the agreement and Lessees/ respondents have also made structural changes in above said shops by removing central wall of said shops, hence, respondents are liable to be evicted from the said shops.

16. Hence, it is clear from the above reproduced portion of pleadings and evidence that the petitioners have not referred the reasons, explanation, factors or plea to cater the Specifications mentioned under section 17(2)(iii) IRRO, 2001 that the changes which they have made "do not impair materially the value or utility of the building" and in the absence of any such explanation the learned Rent Controller was certainly left with no option but to decide the matter in favour of respondent No.1 where as on the other hand respondent No. 1 has agitated his plea as per requirements of section 17(2)(iii) IRRO, 2001. The petitioners have failed to prove the effect of removal of wall between the shops to the extent that the same do not impair materially the value or utility of building rather they did not bother to utter a single word in their pleadings or in their evidence to this extent.

17. Even otherwise, the evasive denial made by the petitioners in their reply does not absolve them from their illegality as they have not proved through cogent evidence that they ever obtained permission from respondent No.1 to remove the wall between the two shops. Hence, I am of the considered view that learned Rent Controller as well as First Appellate Court have rightly decided the eviction petition in terms of findings on issue No.3. The impugned judgment and decree dated 07.11.2015 does not call for any interference, therefore, the same is upheld. The concurrent findings of the fact regarding structural change have not been controverted by the petitioners nor there is any element which favours the stance of the petitioners, which calls for interference. Even otherwise concurrent findings of the fact cannot be interfered in writ jurisdiction. In this regard reliance is placed on PLD 2007 SC 45 (Shajar Islam v. Muhammad Sddique and 2 others) wherein it was held that:- "High Court in exercise of its constitutional jurisdiction is not supposed to interfere in the findings on the controversial question of facts based on evidence even if such finding is erroneous. The scope of judicial review of High Court under Article 199 of the Constitution in such cases, is limited to the extent of misreading or non reading of evidence or if the finding is based on no evidence which may cause miscarriage of justice but it is not proper for the High Court to disturb the finding of fact through reappraisal of evidence in writ jurisdiction or exercise this jurisdiction as a substitute of revision or appeal".

18. For what has been discussed above, the instant writ petition is without merits. Resultantly the same stands dismissed. ZC/79/Isl. Petition dismissed.