1991 PLP 1345 (MLD)

The appellant filed an application for ejectment of the respondent from Shop No.2 in building bearing No.568-C, Central Commercial Area, Block 11, Khuslial Road, P.E.C.H.S., Karachi. It was pleaded that the premises is required in good faith for occupation and use of her son Hilaluddin who intends to start business of general merchant-cum-medical store in the said shop. It was claimed that originally there was one shop which was converted into two shops, one of which was rented out to the respondent in this appeal and the other to one Abdullah respondent in Appeal No.880 of 1988. The appellant had filed two separate ejectment applications against both of them. This appeal is only in respect of Shop No.2. The appellant also alleged that without the. Written permission and consent the respondent has made alterations which have materially affected the value and utility of the building. The plea of default in payment of rent though raised in the ejectment application has not been pressed in appeal. The respondent pleaded that the premises in his occupation is in the same condition and order in which it was rented out to him. The bona fide requirement of the appellant's son was denied and it was pleaded that no alterations have been made by him. The learned Controller by the impugned order dismissed the ejectment application. It may be mentioned that earlier, the appellant had fled ejectment application under section 14 of Sindh Rented Premises Ordinance, 1979 but it was dismissed on the plea that the appellant has not proved to have attained the age of 60 years and further that bona ride requirement of her son Hilaluddin was not established. The learned Controller in the impugned order did not refer to the evidence recorded in this case as according to him the finding has been already given by the High Court in appeal filed against the order passed in the application under section 14 of the Sindh Rented Premises Ordinance and therefore it is not necessary to give any finding to that effect. On that basis he rejected the appellant's plea for personal requirement. Mr. Farooq H. Nack the learned counsel for the appellant has contended that the learned Controller has not assessed the evidence independently as the finding of the Appellate Court which has been challenged in the Supreme Court was not binding upon him. The main ground for such attack is that in that case the appellant had filed ejectment application under section 14 of the Sindh Rented Premises Ordinance, 1979 and wanted the premises for her son. On the face of it such a requirement of the sons could not be pressed under section 14 of the Sindh Rented Premises Ordinance as the term ` personal use' is to be construed strictly limiting to the persons specified in that section and not their relations and family members. In that case the parties, however, led their evidence on the issue of personal requirement of the appellant's son. A finding was given by the Controller which was set aside by the High Court in Appeal. This finding, in my view was given in a proceeding under law between the same parties on the same facts and therefore the Controller was justified in not entering into such controversy and following the decision given by the High Court. Therefore in my view this question cannot be re-agitated in this case. The second ground is that the respondent has made unauthorised alterations which has materially affected the value and utility of the building. The appellant's complaint is that in front of the shops there is an open verandah but the respondent without the permission of the appellant closed that verandah and has fixed shutter on it and is using as a room. From the tenancy agreement it seems that the respondent was tenant in respect of shop only. The verandah was not included in his tenancy. From Ex.0/4 which is a statement of the respondent recorded in Rent Case No.5330/1981 it is clear that (lie respondent had admitted that he has been using the verandah with the permission of the appellant. He also stated that the verandah in front of Shop No.1 adjacent to his clinic is not covered with shutters. He further admitted that main-hole and the water tank of the entire building is situated in that verandah and that the verandah is closed when the clinic is closed. He opens his clinic during 4-30 p.m. to 8-30 p.m. and on Friday from 9 a.m. to noon. From these facts it is clear that the respondent by fixing the shutters has completely closed the verandah and converted it into a room for his exclusive use although it is not a part of the tenancy. His plea is that it was done with the consent of the appellant but no such proof has been produced to prove the consent. In fact under law such material alterations can be made with written consent of the landlord. Mr. Farooq H. Naek the learned counsel has contended that in the absence of written consent the plea of the respondent cannot sustain. The learned counsel has referred to Khalifa Fateh Muhammad v. Ahmad Nasir Khan 1988 S C M R 689 where the tenant was ordered to be evicted on the ground of using the house for a different purpose i.e. godown and office without the consent of the landlord and making additions/alterations in the house (which had impaired the material value) without the landlord's permission. It was argued that even if the house was not let out for commercial purpose, its use for those purposes by the tenant for a long time and to the knowledge of landlord amounted to waiver. The Supreme Court repelling the contention observed as follows:- "The petitioner would not benefit because it is the requirement of law that the consent of the landlord should be in writing which it is admitted was not given by him." Here also the respondent has not been able to show that there was any written consent by the appellant to use the veranhah in the manner he is using it. The plea that the shop is in the same condition and order in which it was let out to him has not been proved by the respondent. The burden of proof was upon him and he has failed to discharge it. The question is whether such addition and alteration will materially impair the value and utility of the building. The water tank and main-hole are situated in the same verandah. Except for four hours in the evening the respondent's clinic is closed for the whole day therefore, there is every possibility that it may cause inconvenience and difficulties if there are problems relating to water tank and man-hole. This will materially impair the value and utility of the building. The learned Controller was of the view that the appellant has not produced any approved plan but from the record it seems that blueprint had been produced and accepted without any objection. In any event on the face of the evidence of the respondent this document would have no material value. I therefore, set aside the order of the learned Controller, allow the ejectment application and direct the respondent to hand over vacant possession of the disputed premises to the appellant within a period of six months. H.B.T./R-170/K Appeal allowed.