1986 PLP 1293 (MLD)

The appellant examined himself in support of the eviction application besides Hameed Nasim. In rebuttal the respondent No.1 filed his own affidavit‑in‑evidence. The respondent No. 2 filed his own affidavit‑in‑evidence besides affidavit‑in‑evidence of Syed Dost Muhammad and Syed Abdus Saboor. They were cross-examined by the learned counsel for the parties. The learned Rent Controller after taking into consideration the evidence adduced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties decided all the issues in negative and dismissed the eviction application vide order. The appellant being aggrieved against the above order-dated 19‑8‑1982 of the XVIIth Civil Judge/Rent Controller has preferred this First Rent Appeal on the grounds mentioned in the memo of appeal. Mr. Hassan A. Shaikh, the learned counsel for the appellant has contended that the learned Rent Controller has misread the evidence. On the other hand Mr. M. Abdul Karim Siddiqui, the learned counsel for the respondent has submitted that the order is in accord with evidence on the record. I have taken into consideration the arguments advanced by the learned counsel of both the parties and have also gone through the impugned order of the learned Rent Controller and have perused the R & P of the learned Rent Controller with the assistance of the learned counsel for the parties. The appellant in pars. 4 of the eviction application averred that the respondent No.1 sometime thereafter left Karachi and surrendered possession of the shop to the respondent No.2. It was further averred that the respondent No: 2 had been paying rent in the name of respondent No‑1 with a contention that he is employee of the respondent No.1. The respondent filed joint written statement and stated therein that "in fact the opponent No.1 and the opponent No.2 are real brothers inter se and the business being carried out from the very beginning in the premises as their own hence the question of leaving Karachi by the respondent No.1 does not arise". The appellant stated in his affidavit -in‑evidence that some months later the opponent No.1 in violation of agreed terms of tenancy surrendered possession of the shop to the opponent No.2 and himself left for some other place. He did not secure my permission to surrender possession to opponent No.2". The appellant further. stated that "in the beginning of January, 1976 I learnt that actually the opponent No.1 had sublet and surrendered possession of the said shop to opponent No.2 without any authority. And since then the opponent No.2 carried his own fruit selling business alongwith his son Syed Abdul Saboor". The appellant to a suggestion in cross‑examination stated that it is correct to say that both of them, are dealing in‑fruit business, since inception of the tenancy., The appellant denied the suggestion and stated that "it is incorrect to say that the opponent has not sublet the premises in dispute". Malik Abdul Aziz (P.W.2) stated ‑that the respondent No.1 started fruit selling business in the shop but some months later he was not seen at the shop and respondent No.2 carried the same fruit business alongwith his son Syed Abdul Saboor. As against the above evidence the respondent No.1 stated that "I am the opponent No. l and is tenant in respect of one of the shop on Plot No.130‑C and the opponent No.2 is my real brother and we both the brothers from the inception of tenancy in my favour and started the fruit selling business at the suggestion and direction of the applicant at the shop in partnership which is still continuing which facts are well within the knowledge of the appellant who is residing in the same building". Section 13(2)(ii)(a) of the repealed Ordinance provides that if a tenant in possession of building or rented land, has without the written consent of the landlord transferred his right under the lease or sublet the entire building or' rented land or any portion thereof, the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land. It is an admitted position that the respondent No.1 is tenant in respect of the disputed shop. The Respondent No.1 admitted in his cross‑examination that he handed over the business and disputed shop to respondent No.2 and joined service in New Quetta Goods Transport Company. The respondent No.1 also admitted in his cross‑examination that he used to reside in office oft the Transport Company, Karachi. The view of the learned Rent Controller is based on misconceived notion of law. The fact that the landlord had the knowledge that someone else is in possession of the shop is of little significance, as such the subletting cannot be condoned. The landlord's right to obtain possession of the disputed shop under section 13(2)(ii) is in no way impaired b his acquiescence in the breach of the condition which would under the Transfer of Property Act enable him to re‑enter the leaded premises, what is denied by his waiver is the right of re‑entry and not other remedies open to him under the law. I am satisfied that on the facts o this case the evidence does not disclose that the appellant concurred with the subletting in question. The appellant has established the ground of eviction under section 13(2)(ii)(a) with regard to subletting. Reverting to the second contention of the learned counsel for the appellant that at the inception of tenancy the respondent No.1 had agreed to pay Rs.7 per month as his share in the water and conservancy charges as was levied by the P.E.C.H. Society. His contention is that since Ist January, 1971, the administration of the Society area has been taken over by the K.M.C. The K.M.C. had imposed to the extent of 61 per cent for water supply and 5% for conservancy. It is the case of the appellant that respondent No.1 was duly informed that his share came‑ to Rs.23 per month. The respondent No.1 did not pay at the rate of Rs.23 per month. The appellant in his affidavit‑in‑evidence stated that the respondent No.1 was duly informed and' in spite of demand nothing was paid. As against the above eviction, the respondent No.1 stated in his affidavit‑in‑evidence that "I was required to pay a flat rate of Rs.7 per month towards the water charges and conservancy charges and in no case any increase in the said rate was stipulated". The respondent also produced agreement of lease (Exh.D/1) executed between the parties. Clause F thereof provides that during the pendency of the lease he shall pay conservancy and water charges to the lessor along with 1 the monthly rent at the rate of Rs.7 per month as his share of the P.E.C.H.S. bills on this account. Therefore, according to the lease o the contract itself he made himself liable for the payment not only Rs.200 described by him specifically as rent but also to pay an extr sum inter alia towards water and conservancy charges which had been calculated at Rs.7 per month. A bare perusal of subsection (2) of section 9 of the repealed Ordinance would show that notwithstanding anything contained in any other law for the time being in force or any agreement, no landlord shall recover from his tenant the amount any tax or any portion thereof in respect of any building or rented land occupied. by such tenant by any increase in the amount of the rent payable or otherwise, save as provided in subsection (1). In the case in hand there has been increase in the water and conservancy charges. As mentioned above the K.M.C. enhanced the charges. Section 9 makes it incumbent that in case there is increase in charges the landlord shall be entitled subject to the approval of the Rent Controller. The tenant refused to accept the enhanced state, the landlord would have approached the Rent Controller before charging the enhanced rent and which has not been done in this case. In these circumstances the appellant cannot succeed on this ground. I am of the view that the order of the learned Rent Controller seems to be in accord with evidence and law. Reverting to the last contention of the learned counsel for the appellant that the respondent No.1 violated the terms of the tenancy, that is, he removed the main door of the shop. The appellant in his eviction application stated that "yet another violation of the terms of the tenancy is that the main door of the shop has been removed." The respondent No.1 denied this violation in his written statement. The' appellant reiterated the same facts in his deposition. The removal o main door itself is not violation of the terms of tenancy unless it is proved that the tenant by any of such acts has caused physical injury to the property which has resulted in loss or injury or by such act as are likely to impair materially the value or utility of the building. I am of the view that clause (iii) of subsection (2) of section 13 would not come into operation unless there is evidence to show that an damage reducing the value or utility of the property has been caused. Mr. Abdul Karim Siddiqui, the learned counsel for the respondent has submitted that the appellant agreed to let out the shop in dispute to the same of the respondent. In support of this submission he placed reliance on the agreement, dated 10‑9‑1970. I have perused the same. It does not advance the cause of the respondents. This document does not help the respondents. The respondents ought to have filed appropriate legal proceeding for enforcement of this document. As they did not file any proceeding for the enforcement of the document; they are not entitled to use the same in this case. As a result of the above discussion the appeal is allowed only on the ground of surrendering possession of the shop to respondent No.2 and the order of the Rent Controller is reversed. The eviction application is granted. The respondents are, however, allowed four months time to vacate the premises. The parties shall bear their own costs. M.Y H Appeal allowed.