1995 PLP 1661 (SCMR)

AJMAL MIAN, J.‑‑‑By this common judgment we intend to dispose of the above four appeals, which have been filed with the leave of this Court and which involve common questions of facts and law. The appeals have been directed against a common judgment dated 19‑9‑1992 passed by the learned Chief Justice of the Peshawar High Court in FA. As. Nos.10 and 11 of 1992 filed by the appellant/tenant and Cross‑Objections Nos.1 and 2 of 1992 filed by the respondents/landlords. Leave to appeal was granted to consider, whether the Courts below were justified in holding that the value of the suit property had been impaired on account of removal of a temporary partition and whether the learned Chief Justice was justified in reversing the finding of the learned Rent Controller on the question of subletting

2. The brief facts are that shop bearing No.133 situated in Ghana Mandi, now Tipu Sultan Road, Peshawar Cantt. hereinafter referred to as the suit shop, had two Dars. It was used by the respondents/landlords previously. It seems that through a rent deed dated 20‑11‑1982, they let out one of the Dars of the suit shop at Rs.1,200 per month and received`Rs.60,000 as security for a period of ten years. It further seems that the second Dar was leased out by the respondents at Rs.1,300 per month for a period of six years commencing from 1‑3‑1985 to 28‑2‑1991 against Teceipt of a total advance Rent amounting to Rs.93,

600. The respondents filed Rent Cases Nos.12 and 13 of 1989 in the Court of Controller of Rents, Peshawar Cantonment, under section 17 of the Cantonments Rent Restriction Act, 1963 (Act XI of 1963), hereinafter referred to as the Act, for ejectment on the grounds that the appellant in contravention of the terms of the agreement had damaged the suit shop by removing intervening wall between the two Dars and by constructing a path at the place of the intervening wall and subletting. One, Anwar Khan, one of the alleged sub‑tenants was arrayed as respondent No.2 in the above rent cases. The above rent cases were resisted by the appellant inasmuch as a written statement was filed, in which besides raising a number of preliminary objections including the plea that the above rent cases were filed prior to the expiry of the lease period, it was pleaded that there had not been a permanent wall in between the two Dars of the suit shop and that the same was partitioned by hardboard, which was removed with the consent of the respondents. It was also pleaded that respondent No.2 was a servant, who had left the service and he was no more in service.

3. The learned Controller of Rents, on the basis of pleadings of the parties, framed nine issues. The respondents in support of the above rent cases examined one Abdul Karim, P.W.1, respondent No.2 himself as P.W.2 and Wasil Khan, P.W.3. In rebuttal, the appellant examined himself. The learned Controller of Rents, after hearing the parties by his judgment dated 18‑12‑1991 held that there was no subletting but, at the same time, he held that by removing the above partition wall, the appellant hack impaired the value and utility of the suit shop. He, therefore, granted the ejectment, order on the above ground through his above judgment.

4. The appellant filed aforesaid FA.Os. Whereas the respondents filed above Cross‑Objections against the finding on the question of subletting. The learned Chief Justice .by his judgment under appeal disposed of the aforementioned FA.Os. and Cross‑Objection by dismissing FA.Os. and by allowing the Cross‑Objections and thereby reversing the finding on the question of subletting. Consequently, he maintained the order of ejectment. Thereupon, the appellant filed four petitions for leave to appeal, which were granted to consider the above questions.

5. In support of the above appeals, Mr. Muhammad Munir Peracha, learned ASC appearing for the appellant, has contended that the learned Controller of Rents and the learned Chief Justice were not justified in holding that by removing the above hardboard partition wall between the two Dars of the suit shop, the appellant had impaired the value and utility of the suit shop. On the other hand, Mr. Abdul Hamid Qureshi, Icarned AOR appearing for the respondents, has submitted that besides removing the partition wall, which ;was of blocks, the appellant had also removed five wooden beams.

6. Before dealing with the above contentions of the learned counsel for the parties, it may be pertinent to mention that in the memos of the rent cases the respondents had not pleaded that the above partition wall was of cement blocks, nor they pleaded the factum of removal of five wooden beams. Except the respondent's words about the removal of five wooden witnesses have not uttered a single word in support thereof. On the. other hand, the appellant has denied the factum of removal of five wooden beams. The Courts below have not recorded a finding of fact that factually the appellant had removed the above five wooden beams. On the contrary, the finding of the learned Controller of Rents is that the appellant had removed the hard‑board partition wall. In the absence of any pleading and in view of the above finding of the learned Controller of Rents which was concurred with by the learned Chief Justice, it is not open to the respondents to urge that the appellant had removed the five wooden beams. As regards the removal of the hardboard partition wall between the two Dars, it may be observed that the respondent and his two' witnesses have deposed that the appellant had approached the respondent for getting the second Dar on rent on the ground that the accommodation comprising one Dar was not sufficient for his business. Admittedly, the respondent did not raise any objection as to the removal of the above hardboard partition wall for nearly four years till the lime of filing of the above rent cases for ejectment. We are inclined to agree with the contention of Mr. Muhammad Munir Peracha, learned ASC for the appellant, that the removal of the above hardboard partition wall was inherent in the purpose, for which the second Dar was let out. To reinforce the above submission, he has relied upon the following observation from the judgment of this Court in the case of Haji Sh. Fazal Elahi (represented by His Heirs) v. Sh. Muhammad Ayub and others (1982 SCMR 8):‑‑ "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."

7. The above observation supports the case of the appellant. Mr. Peracha has also referred to a recent judgment of this Court in the case of Intezar Ahmed Khan and another v. Mst. Khatoon Hadi and another (1995 SCMR 194), which also involved the question of removal of partition wall and wherein the following was held.:‑‑ On the other hand, Mr. Akhtar Mehmood, learned counsel appearing for the respondent in CA.No.44‑K/93 (N.B: =Nobody has appeared for the respondent in CA.No.43‑K/93) has invited our attention to clause (iv) of subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) and has contended that under the above provision, it is not incumbent upon a landlord to prove the factum that the act of the tenant complained of has actually materially impaired the value or utility, but it is sufficient to show that the above act is likely to materially impair the value or utility of the premises. According to him, the factum of removal of partition wall itself is sufficient to prove that the sane is likely to impair the material value and utility of the premises. However, he was unable to point out any evidence on record to show that factually the witness on behalf of the respondent had averred that the above act of removal of the partition wall was likely to impair materially the value or utility of the suit shops.

5. In the absence of any' evidence, it cannot be presumed that simpliciter removal of a partition wall is likely to impair value or utility of the premises of which such wall is removed. There are two types of partition walls, one which has no structural value but its utility is to provide partition between two portions, whereas the second type of partition wall has structural value as it may bear the load of the structure. In the present case, it has not been even alleged by the respondent that the above partition wall between the shops had any structural value. In the absence of any such evidence, simpliciter removal of the ordinary partition wall will not attract clause (iv) of subsection (2) of section 15 of the Ordinance. In the instant case one can urge that the value of the shop has materially enhanced as prior to the removal of the partition wall the location of the two shops in each of the above appeal was that one shop had opening on the road, the other shop had opening on the back side in the compound of the market but after the removal of the partition walls, both shops have now access from the road."

8. On the other hand, Mr. Abdul Hamid Qureshi, learned AOR appearing for the respondents, has relied upon the case of Fayyaz Ali Khan Haji Muhammad Sharif (1981 SCMR 545), in which this Court, while declining leave to appeal against the concurrent finding of the two Courts below to the effect that removal of intervening wall between two portions had caused damage to the property and impaired its value.

9. The judgment in the case of Intezar Ahmed Khan and others (supra) covers the case in hand and the order in the case of Fayyaz Ali Khan (supra) has no application to the present case for the reason that the question, whether the partition wall involved in the above order had any structural relevance, was not considered. It was not the case of the respondent before the Courts below that the removal of above hard‑board partition wall, in any way, had affected C the structure of the suit shop. The finding, therefore, recorded by the two Courts below on the above issue is contrary to law. We, therefore, would reverse the same.

10. As regards the ground of subletting, it may be pointed out that the two Courts below were at variance inasmuch as the learned Controller of Rents held that the same was not proved but the learned Chief Justice took a contrary view on the basis of the judgment in the case of Masroor Hasan and another v. Abbas, Ali Khan (1981 CLC 669), wherein the following observations were made by one of us (Ajmal Mian, J.) sitting as S.B. in the, Sindh High Court: "In my view once a landlord proves that some body else is using the rented premises either exclusively or jointly with the tenant, the burden of proof shifts on, the tenant to explain the relationship between him and the person using the tenement."

11. The above case relied upon by the learned Chief Justice has no application to the instant case. We have perused the evidence. The respondent in his cross‑examination was put the following question: to which he replied as under:‑‑

12. P.W.1 Abdul Karim was unable to, give the names of the alleged two sub‑tenants, whereas P.W.3 was unable to refute the suggestion that respondent No.2 was in fact working as a servant previously. The respondent himself in his above‑quoted reply admitted that the appellant also used to sit in the suit shop some times with the alleged sub‑tenants. The above admission corroborates the appellant's plea that in fact respondent No.2 was his servant, whose services were terminated much before the filing of the rent cases. On the basis of the above state of evidence the learned Chief Justice was not justified in reversing the finding of the learned Controller of Rents. The appellant was able to give satisfactory explanation as to his relationship with respondent No.2 in terms of the above judgment in the case of Masroor Hasan and another (supra).

13. The finding recorded by the learned Chief Justice on the question of subletting is, therefore, not sustainable. We would reverse the same and would restore the finding of the learned Controller of Rents. The upshot of the above discussion is that the appeal is allowed and the two judgments of the Courts below are set aside. However, there will be no order as to costs. M.BA./M‑3084/S Appeal allowed.