1993 PLP 1798 (CLC)

Mr. Ibrahim Pishori, learned counsel for the appellant vehemently contended that the impugned order is unsustainable. In support of his contention, he cited the following decisions:‑‑ (1) Shuja‑ud‑Din Qureshi v. Mst. Husan Ara Begum PLD 1964 Lahore 292. (2) Haji Shaikh Fazal Elahi v. Shaikh Muhammad Ayub and others 1982 SCMR 8. (3) Muhammad Mirza v. Muhammad Hussain Gani PLD 1983 Karachi 162. (4) K.C. Mamoo v. Mrs. Badrunnisa 1985 CLC 332. (5) Muhammad Qasim v. Mst. Akhtari Begum 1985 CLC 1368 and (6) Dr. Shirin Hatim v. Kutabuddin and 2 others 1986 CLC

713. On the other hand, Mr.Mansoor‑ul‑Arfin, learned counsel appearing for the respondent submitted that the order is in accord with law. He further contended that the appellants have not only contravened the conditions of the lease but have also contravened the provisions of the Ordinance. In support of his contention, ‑ he has invited my attention to the following decisions: (1) Ch. Muhammad Anwar Sipra v. Malik Muhammad Din etc. PLD 1981 S.C. 491. (2) Tahir Shaikh v. Ahmed A. Dawa 1985 CLC 993, (3) Muhammad Ibrahim v. Mst. Usha Rani Anand 1988 CLC 945, (4) Khalifa Fateh Muhammad v. Ahmad Nasir Khan 1988 SCMR 689 and (5) Mrs. Iqbal Baqi v. Saleem Rashid PLD 1988 Karachi

8. I have taken into consideration the arguments advanced by the learned counsel of both the parties and have also gone through the impugned order. I have also perused the pleadings of the parties and the evidence adduced try the parties. It would be plain from the above resume of facts that the findings of the learned Rent Controller are that without the written permission or consent of the landlord, the appellant/tenant had violated the terms and conditions of the lease particularly clause 7, by carrying out additions and alterations in the rented premises. The crucial issue, therefore, is whether these acts would come within the mischief of section 15(2)(iii)(c) and (iv) of the Ordinance. Inevitably one must first turn to the language of the aforesaid provision which is in the following terms:‑‑ "

15. Application to Controller.‑‑(1) (2) The 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‑‑ (i)

(ii)

(iii) the tenant has, without the written consent of the landlord‑‑ (a)

(b)

(c) infringed the conditions on which the premises was let out; (iv) the tenant has committed such acts as are likely to impair the material value or utility of the premises;" It is advantageous to reproduce clause 7 of the lease which is in the following terms:‑‑ (7) The lessee shall in no circumstances make or carry out any structural alterations or additions in the demised premises without the prior consent in writing of the lessor. The lessee shall, however, have the right to install or remove at their own risk and cost air‑conditioners, telephone equipment, wooden partition, etc., and undertake wiring for such purposes through "approved" contractors without disturbing the existing concealed wiring of the premises, and restoring the premises in its original condition at the time of handing over its vacant possession to the lessor. Any damage caused by removal of such items and their wiring shall be made good by the lessee as stated in para. (3) above." It is also advantageous at this stage 'to refer clause 3 of the lease deed which is in the following terms:‑‑ "

3. In case physical check‑up and comparison with the inventory reveals any damage by misuse, breakages, theft, except where it is caused in the ordinary course of things by vicissitudes of nature and/or by natural wear and tear, the lessee shall pay to the lessor market price of the replacements of all those items as may be determined by the architect appointed for the purpose of the mutual consent of the lessor and the lessee. The lessee shall not be entitled to demand a "Handing over Certificate" without settlement of any such claim certified by the agreed architect." Herein what first meets the eye is the designed use of the work `likely' in the aforesaid provision. The Statute has not used peremptory or categoric language. Therefore, it is not that the impugned acts must have conclusively diminished the value or utility of the premises but it would be within the mischief of the statute if they are likely to do so. A closer look at the provision would, therefore, indicate that it is tilted in favour of the landlord because even if the acts may not conclusively impair the value or utility but merely have a tendency to the same effect they may well come within the wider net of the language employed by the legislature. Equally well‑settled it is that the words `value' or `utility' in the aforesaid provision have to be read disjunctively. It is not that the impugned act must impair both the value and utility of the building but it suffices if the material impairment is either of the financial value of the premises or similarly of the utility for the purposes of the landlord if he is able to establish either of the two requirements. It is with the aforesaid approach towards section 15(2)(iv) of the Ordinance that one must notice that broadly there is consensus of judicial opinion in this particular context and also in the context of corresponding provisions of other rent statutes that any material structural alterations which tend to change the nature and the character of the premises would come within the mischief of the statute. The use of the word `material' in the provision only effectuates the hallowed rule of law that it does not take account of trifles and consequently both the impairing of its value or its utility must be of a substantial and not inconsequential nature. A perusal of Architect's letter (Annexure E) to the affidavit‑in- evidence of the respondent would show that the appellant has added a room in front by covering the verandah. The two kitchens are being used as normal rooms. The floor and small cabinets and other fittings and fixtures are missing. He has added two rooms by covering the rear compulsory open space. A verandah has its own utility. It provides light' and air to the rooms adjoining it. A building with a verandah is admittedly more useful than the one without a verandah. Therefore, there can hardly be any doubt that the inclusion of verandah into the building constitutes structural alteration and had impaired materially the utility of the premises. Lower lawn has been converted into a cemented floor, which is serving as basket‑ball field also constitutes alteration. So, the aforesaid acts of the appellant undoubtedly, fell within the ambit of (section 15(2)(iv) of the Ordinance. The facts even mentioned above, do not constitute minor charges. Drastic changes in the structure of the premises have been made. The verandah have been completely merged into a room by removal of fixtures and fittings from the two kitchens have completely converted into rooms addition of two rooms and removal of lawn by serving it as basket‑ball ground. The utility and the value of the premises in dispute has been impaired. From other angle, the alteration should be of a structural nature and not merely of decorative nature. Fixing a door to a room or to a garage by a tenant may not amount to material alteration within the meaning of section 15(2)(iv) of the Ordinance but the same will not be the case when an open verandah is converted into a closed room by erecting wall and by fixing door in the open portion. The character and shape of the premises in the former case remain unchallenged while in the latter case, the form and structure and the premises is changed. Similarly by adding two rooms in compulsory open space the form and structure of the premises is changed. The removal of lawn and by flooring the ground for basket‑ball ground the form of the premises is changed. Mr. Pishori urged that the diminishing of the light and air to the rooms by enclosing of the verandah concerns the tenant alone and not the landlord. Similarly his submission is that the conversion of two kitchens into rooms, lawns into basket‑ball ground and constructing two rooms on the compulsory open space concern the tenant and not the landlord. These submissions cannot possibly be supported on a closer analysis. I am of the view that the impairment of the utility of the premises and the adverse results of the acts of the tenant have relevance to the requirements of the owner of the premises and not to those of the tenant who would himself make the alterations. The submissions seem to rest on the assumption that the tenant is to remain in perpetual possession and, therefore, the diminishing of the light and air to the rooms is his concern only. These submissions can hardly be justified because the ultimate diminishing of value may, either be when the landlord resumes possession for his needs or may be compelled to transfer the property (even whilst still in the occupation of the tenant) despite the impairment of its value to the new, owner. Again the submission that these material structural alterations cannot be said to impair the value or utility of the premises because the doors and the walls can be easily removed, the lawn can be restored to their original shape, the two rooms constructed in the compulsory open space and the two kitchens can be restored to their original shape as provided in the lease is also not sustainable on a closer analysis. Carried to their logical extent, it would mean' that only alteration, however material, which can be restored to its original state would never come within the ambit of the lease or the Ordinance. With the present day construction technology one can hardly imagine any material structural alteration which cannot be either reversed or restored. Again this submission suffers from the erroneous assumption that the premises would 8c necessarily vacated and the tenant would then either be willing to remove the material alterations and restore the premises to its original state or that the landlord would always be in a position to do so. Under the present Ordinance, it is not always that the landlord can secure possession and being in the enviable position of either removing the unauthorised structural charges and alterations and thus restoring the rented premises to its original state. It is aptly argued by Mr. Mansoor‑ul‑Arfin, learned counsel for the respondent that a landlord may well be compelled to transfer the rented premises whilst still in the occupation of the tenant and the impairment of its utility because of such material changes may gravely affect its value in the market. Therefore, the hypothetical consideration that either the landlord may be able to secure. possession and restore the rented premises into its original state or the tenant`;,' may well be willing to do so under the terms of lease appears to be rather irrelevant to the issue. It is manifest that the statute visualizes such acts as and they are committed during the occupancy of the rented premises by the tenant which can give rise to the remedy of ejectment. The matter was, therefore, to be considered in present and not in future. One of the grounds of eviction of a tenant from premises is provided in section 15(2)(iii)(c) of the Ordinance and that is for breach of or infringing the conditions on which the premises was let out. The argument of Mr. Mansoor‑ul‑Arfin in this regard was that even assuming for the sake of argument that the appellant/tenant cannot be held to be liable for eviction under such acts as are likely to impair the material value or utility of the premises within the meaning of section 15(2)(iv) of the Ordinance on account of structural changes, they must be deemed to be guilt of breach of conditions or terms of the lease, on this account within the meaning of sub‑clause. (c) mentioned above. The argument of Mr. Pishori in this regard was that the breach in this regard, which, of course, was undisputed could not be held to be a breach of the conditions of lease but only a breach of the stipulations thereof. 1, however, fail to appreciate this argument of making a distinction between the conditions "and stipulations" of the terms of lease. There may be then a distinction between these two but in my view there being an express covenant in lease amount to the breach of conditions of lease particularly clause 7 and, therefore, on this account also the tenant/appellant is liable to be evicted. For these propositions, it is not necessary to cite decisions, although I have been taken through case‑law by counsel on both sides. No other point remains for consideration and for the reasons discussed above, I do not find any merit in this appeal and would maintain the order for eviction of the tenant appellant passed by the learned Controller but for reasons entirely different from those given by him. I would accordingly direct the appellant to give the vacant possession of the rented premises in question on or before 31‑7‑1992 failing which the respondent would be entitled to recover possession without any notice to the appellant. On the facts and in the circumstances of the case, I shall make no order as to costs. ' H.B.T./A‑1272/K Appeal dismissed.