1989 PLP 1348 (CLC)

‑‑‑S.15(2)(iii)(c)‑‑Premises rented for residential purpose‑‑Using of such premises for non‑residential purpose‑‑Effect‑‑Carrying out commercial activities m the demised premises which were meant to be used only for "residential purposes" clearly comes under the mischief of S.15(2)(iii)(c) of Sind Rented Premises Ordinance, 1979‑‑Tenant was liable to eviction on that ground also. Usman Ghani Rashid for Appellant. Muniruddin AM for Respondent. Dates of hearing: 22nd and 27th March, 1989. Respondent Naheed Jalil has obtained an order of eviction against the appellant in Rent Case No.1625 of 1985 (original No. being 902/1983) on the ground of sub‑letting and unauthorised construction in the demised premises. It was alleged that the appellant/tenant had erected two unauthorised Pucca construction in the compulsory open space around the demised premises, one being used as an additional garage and the other, which consists of two rooms with attached bath, has been sub‑let. The appellant denied both the allegations and added that whatever construction she has put up, she has put up, with the written permission of the respondent/landlady. Learned Rent Controller came to the conclusion that both the allegations were proved. Hence the impugned order against which the tenant come in appeal.

2. It may be stated at the outset that it is irrelevant for purposes of this case as to whether the demised premises are Waqf property and whether the l respondent is or is not its Mutawalli or whether her son is Mutawalli because the appellant had executed rent agreement with the respondent and the relationship of landlord and tenant was admitted in the written statement. There was no occasion to raise such a question in evidence and arguments.

3. As for unauthorised construction, the appellant clearly misstated the facts when she said in para.4 of her written statement that she had raised additional construction with the written permission of the landlady. No such written "permission" could be brought in evidence by the appellant who could only refer to clause 5 of Rent Agreement dated 31‑3‑1981 but this clause shows that appellant was occupying the premises as a tenant for a very long time prior to March, 1981, and lease agreement of 31st March, 1981, was executed by way of fresh agreement, and that the appellant had raised some unauthorised construction and the landlady vide this clause 5 had acquiesced in this unauthorised construction. This clause 5 is quoted below:‑ "That no construction or alterations shall be made in the said premises without the written permission of the landlady except what has already been made by the tenant which shall be considered as approved by the landlady."

4. It is thus clear that the appellant had raised unauthorised construction without the consent of the landlady and thus it is wrong to say that the landlady had given written permission to the appellant to put up additional construction. It is quite another thing that the landlady had later approved the unauthorised construction vide clause 5 of Rent Agreement of 31st March, 1981.

5. Even so, clause 5 of the Rent Agreement of 31st March, 1981, is bad for vagueness. It does not specify what unauthorised construction existed on 31st March, 1981, which was approved by the landlady. Full particulars of this unauthorised construction should have been given and a sketch should have been appended to the Rent Agreement. This clause, in its present vague condition, is of very little utility to the appellant.

6. Besides, the Rent Agreement of 31st March, 1981., is also bad due to unauthorised cuttings. Clause 1 made the rent agreement renewable at the option of the landlady and the tenant" but the words "landlady and the" have been unauthorised cut. This cutting bears an initial which is clearly not of the landlady. The cutting does not bear the signature of the marginal witnesses. The appellant has clearly fraudulently altered the rent agreement to suit her requirements.

7. Thus under these circumstances, when the respondent alleges that the appellant has put up unauthorised construction, the appellant cannot be believed r when she claims that it is the old construction covered by clause 5 of the Agreement. The appellant has not come to the Court with clean hands and it is not possible to believe her version. Moreover, the evidence of A.W.2 Khudadad Gabol who is a co‑tenant in respect of another portion of the building, wherein he states that the unauthorised construction was of later origin, have gone unchallenged as he was not cross‑examined. There is also the report of Nazir of District Court. Civil Suit No.575 of 1986 is also pending between the parties in which the respondent has claimed damages from the appellant. In that suit Nazir was appointed local Commissioner to visit site and report. This report is Exh.0/5. It shows a full‑fledged annexe at the site, not just an ordinary unauthorised construction which could be covered by clause 5 of the Rent Agreement. I am, therefore, satisfied that the appellant raised unauthorised construction at the premises subsequent to the execution of rent agreement of March 1981.

8. Learned counsel of the appellant argued that more unauthorised construction does not render the tenant liable to eviction. Such construction, in order to attract the provisions of section 15(2)(iv) should impair the utility of the premises. Now it is established that the annexe put up by the appellant is on' compulsory open space between the compound wall and the main building. It is thus not only an ugly encroachment but it has also lowered the value of the B building. The building has three other tenements which are in convenience by the encroachment of common open space by the appellant. This construction is also in violation of building bye‑laws and has rendered the respondent liable to penal action. It can, therefore, be safely concluded that the construction in question has impaired the value and utility of the property of the respondent.

9. As for the charge of sub‑letting, it was alleged by the respondent that the rooms and the garage constructed by the appellant unauthorisedly were being used by her as a separate tenemant and was sublet. The name of sub‑tenant was not given in the ejectment application and the affidavit‑in‑evidence filed by the respondent and her witnesses also do not name the sub‑tenant or sub‑tenants. However, respondent's witness Khudadad Gabol who is co‑tenant in the same premises in respect of another tenement has not been cross‑examined and his evidence goes unchallenged and is, therefore, sufficient to sustain the charge of sub‑letting. If the respondent and her witness had been questioned on the point they might have given the names and other details but no such question was put to them. Mr. Khudadad Gabol is a tenant and he would not have come forward to depose falsely again a co‑tenant. Apart from the fact that he was not cross examined, the evidence of appellant also does not even remotely suggest that Mr. Gabol was inimical towards the appellant or had any ulterior motive to depose against her. Even so, the details about the sub‑tenants are available in the cross examination of the witnesses of the appellant herself as well as from the report of the Nazir who had visited demised premises as a local Commissioner. Mr. Talat Farooq, husband of the appellant, in his cross‑examination denied that the appellant had sub‑let any portion of the demised premises to one Mr. Javed or to two Iranian boys but conceded that one Iranian boy was living with him as a family friend. Mr. War Umer Kazi was also examined by the appellant. He is nephew of the appellant and he stated that he had lived with the appellant in the demised premises between 1978 and 1982 and denied that the appellant had sublet any portion of the demised premises to any one but in cross‑examination he stated that although he was receiving Rs.350 per month as house rent, he was not paying anything to the appellant even though he was occupying an independent room with attached bath and kitchen. He, however, conceded that one Iranian national name Zaira was now living in the room he was previously occupying. He also conceded that one Mr. Jawed of Allied Bank used to live in one of the rooms. He, however, stated that he could not say whether these persons were sub‑letters. The next witness of the appellant is Mr. Tariq Rahim who states that he is living in the adjoining house and that whatever construction is available on the demised premises is there since 1979 after which no construction has been raised by the appellant. However, he also conceded in his cross‑examination that Mr. Jawed and Iranian national Zaira used to live in a portion of the premises in occupation of the appellant and that one Iranian national was still living there. The Nazir of the District Court had visited the demised premises on 18‑10‑1986. His report is available at page 159 of the file in which he stated that he was shown the approved plan of the property and that on the flank of the demised premises a very good apartment had been constructed, that he went inside the appartment and found that it consisted of two rooms, a bath‑cum‑W.C. and a kitchen. The Nazir found a young boy therein who appeared to be an Iranian and who gave his name as Raza. This boy could only speak Persian and a bit of English and on enquiry Mr. Talat Farooq, the husband of the appellant, told the Nazir that the boy was his son. This annexe was provided with an independent entrance and on the wall by the side of the entrance some address was written in the form of a name‑plate, reading "Jawed, 14‑B.M.A.S., U.B.L. Banker, P.IA." The Nazir also found two steel almirahs lying near the electricity meters in such a way as to make it very difficult to take meter readings. He also found a newly‑constructed garage which was in the use of the appellant. The Nazir has also noted that the husband of the appellant had not welcomed his visit and was rash and aggressive and used objectionable language on the occasion. it is clear from the evidence that the appellant was not using for himself the extra accommodation constructed unauthorisedly on the compulsory open space. She was using it for accommodating persons not in any way related to her. Learned counsel argued that at the worst these persons were the guest of the appellant or even paying guests but keeping guests or paying‑guests did not amount to sub‑letting and, m any case payment of rent by the sub‑tenant had not been proved. In view of the nature of the relationship between these persons and the appellant it was rather next to impossible to prove the payment of rent. Obviously such payments would not be made in the presence of the persons who will be willing to testify about them. We shall have to fall back upon circumstantial evidence. It is not possible to believe that the appellant would be accommodating so many strangers, one after the other, free of charge and it could be safely inferred that these persons were handsomely paying for the facilities to them. The appellant and her husband are no doubt enterprising persons. The appellant is running cooking classes and is also in cattering business as per admission of her husband in his cross‑examination. To expect that she would be keeping strangers, and Iranian nationals at that, without charging them for the facilities provided to them, is so unnatural that it can simply not be believed. Usually, a landlord gives the names of the sub‑tenants and the learned counsel for the appellant argued that since the names of the sub‑tenants had not been given in the ejectment application or in the affidavit of the respondent, the allegation about sub‑letting should be disbelieved. This may be correct under ordinary and usual circumstances but here the appellant is evidently providing accommodation on temporary basis for short period and under such circumstances the inability of the respondent to give the names of the sub‑tenants can be understood. The names of Jawed and Zaira have come on record through the witnesses of the appellant herself and in addition to that one Raza was found in occupation of one of the rooms as per report of the Nazir of the District Court. This Raza could speak only Persian and a bit of English and the Nazir rightly concluded that he was an Iranian national and the son of the appellant as claimed by appellant's husband. Learned counsel for the appellant had objected to the admissibility of the evidence of the report of the Nazir on the ground that the Nazir himself had not been examined in the Court and was not cross examined but he could not raise this objection in appeal when it was not raised in the trial Court at the time when the report of Nazir was admitted in evidence. Learned counsel for the appellant relied upon 1985 CLC 2419 wherein it is held that no sub‑letting is proved when the landlord fails to establish that tenant had ceased to occupy the premises in dispute or he recovered rent from the sub tenant. The facts of that case were entirely different and the conclusion of the Court was in an entirely different context. A sign board of somebody was placed at the shop and the landlord wanted to deduce from it that the shop had been sublet to the person whose sign board appeared on the shop but it was proved to the satisfaction of the Court that the tenant continued to be in possession of the shop but he had allowed his friend to put up his sign board merely for the purpose of receiving mail. In the case before is the facts are, quite different. Here, the tenant continues to be in occupation but she has put up additional structure which she is providing for residence to others including Iranian nationals. In such circumstances payment of rent can be presumed without actual proof. In holding this view I get support from the judgment reported as 1987 CLC 1981 which was relied upon by learned counsel for the respondent and which is to the effect that under the Sind Rented Premises Ordinance, 1979, mere handing over possession by the tenant to another person without the consent of the landlord is sufficient to make him liable for eviction. In my view the principle laid down in this authority would apply to the present case. I am also of the view that it is not necessary that the tenant should hand over the entire demised premises to another person in order to attract the provisions of section 15(2) of the Ordinance. It is enough if the tenant parts with part of the demised premises. Learned counsel for the appellant has also relied upon 1986 CLC 805 and 1985 MLD 1166 but in my view these judgments are not relevant in the present case. In view of my, above observations, I am, on the whole, in agreement with the' observations of the learned Rent Controller under issue No.2 as well.

10. It may also be taken note of that under clause 6 of Rent Agreement the appellant was prohibited from using the premises for non‑residential purpose but it is clear from the cross‑examination of the husband of the appellant (O.W.1) Mr. Talat Farooq that the premises are being put to commercial uses. He admitted that his wife had been taking cooking classes (in the premises) and charged Rs.35 as fee from each student and that his wife was running catering business in the demised premises and he had to concede that no permission had been obtained from the landlady for carrying on these business operations at the demised premises (cooking classes and catering work) are certainly not activities which may be included in the definition of "residential purposes". These are without doubt commercial activities. Carrying out these activities in the demised premises which were meant to be used only for "residential purposes" clearly comes under the mischief of section 15(2)(iii))(c) of the Ordinance of 1979. The appellant is liable to eviction on this ground as well. I am rather surprised that this point has not been covered by the learned Rent Controller in the impugned order.

11. For the reasons given above, I find no force in the appeal and the same is dismissed with costs. The appellant is, however, allowed two months time to vacate the premises. A.A./T‑51/K Appeal dismissed