1991 PLP 1059 (CLC)

The respondent filed application for ejectment against the appellant in respect of premises being a flat let, out to the appellant in the year 1969. The allegation was that the premises was let out for residential purposes but it has been unauthorisedly used for commercial purpose. The appellant has installed an industry without the permission of tile respondent and is using the premises for the purposes other than for which it was leased out. It was also pleaded that the appellant has constructed wall and fixed a door without the permission of the landlord and has thus committed acts which are likely to impair the value and utility of the flat. The commercial use by the appellant is a nuisance and is in danger for the life‑ and property of the neighbours. The respondent also claimed that the appellant has defaulted in payment of rent from August, 1975, till the filing of the case on 5‑11‑1976. The appellant pleaded that the premises is on the ground floor which was let out for commercial purpose in the name of the company and it was being used for the same purpose. It has further been stated that the appellant is carrying on business of packing of cosmetics and no manufacturing work is being done and neither any machine has been installed, nor any furnace has been put as alleged by the respondent. It has been further pleaded that the boundary wall around the courtyard has been raised and in the open space a well was bored but it is denied that it has impaired the value and utility of the flat. The allegations regarding nuisance or danger to life has also been denied. The learned Controller on assessment of evidence held that no default has been committed but he found that the appellant has converted the premises from residential to commercial purpose and ordered for its ejectment. The appellant riled F.R.A. No.782/87 challenging the order of ejectment. The respondent also filed an appeal F.R.A.No.812/87 challenging the finding of the learned Controller on issue relating to default. However, Mr. Naushad Shafqat has not pressed this appeal which has been dismissed as withdrawn. Therefore, there remains only one appeal F.R.A. No.782/87 riled by the tenant/appellant. Mr. Abdul Majid Shaikh the learned counsel for the appellant has contended that the premises from the very beginning was being used for commercial purposes of packing the cosmetics which was within the knowledge of the respondent and therefore, after a period of seven years he could not object to such a use. He further contended that there was no conversion as alleged. In this regard I have examined the evidence of the parties. The respondent has examined himself and stated that it was rented out for residential purpose. It is an admitted position that the premises is not being used for residential purpose, but for commercial and industrial purpose. Conscious of the fact that the application was filed in 1976 in his evidence the respondent tried to explain the delay stating that 10 or 15 days before the riling of the ejectment application he had come to know about the commercial and industrial use by the appellant. Such averment was. not made in the ejectment application. The respondent has been collecting rent from the appellant and as the premises is on the ground floor and was being used for commercial and industrial purposes it could not have been concealed and it would have been within the knowledge of the appellant. In this period of seven years, not even a notice was issued to the appellant. Nor even after coming to know about this alleged breach notice was issued. The ejectment application was straightaway riled without explaining the delay from these facts and particularly as the appellant has not produced any other witness and there is word against word, inference can be drawn that the premises were let out for commercial and industrial use. In this regard the location of the premises is to be taken into consideration. It is on the ground floor and adjacent to it are parts of the building which are being used as shop and have been commercialised by the respondent himself. Therefore, the property situated in a commercial area where part of it is also being used as shop, one can safely come to the conclusion that the premises must have been rented out for commercial and industrial purpose. It is not a case where the appellant had first taken the premises for residential purpose and then converted it into commercial use. That situation would have been completely different. In that regard the learned counsel for the respondent has relied oil P L D 1979 Lah. 751 and 1988 S C M R

590. In all these authorities the observations are in regard to the conversion of the premises, Where it is proved that there is an unauthorised conversion then the ejectment must follow. In the present case in the light of the evidence as produced on record the conversion hag not been established. The appellant has examined himself and also one of his neighbours who has deposed that the premises was rented out for commercial purpose and is being used in that manner. He has at least proved that from the very beginning the premises is being used for commercial purpose. Admittedly there are many people in the neighbourhood who could have been produced to prove that the premises was being used for residential purpose but none of them has been examined by the respondent. They would have been independent witnesses to testify the use of the premises. There is no written agreement to show for what purpose the premises was rented out. In these circumstances the finding of the learned Controller does not seem to be proper and correct. So far the question of alteration and causing damage to the building is concerned, in my view it has been not established. Mere boring of well in the courtyard, raising the wall higher and erecting the iron gate in the com was does not materially affect the utility of the building. It in fact enhances utility and value. The impugned order of the learned Controller is set aside and the appeal is allowed. H.B.T./S‑704/K Appeal allowed.