1986 PLP 1963 (CLC)

report. S. Ishtiaq Ali for Petitioner. M. Abdul Karim Siddiqui for Respondent. Date of hearing: 29th October, 1985. This First Rent Appeal under section 21 of the Sind Rented Premises Ordinance, 1979 is filed by the tenant/ appellant against the order of Rent Controller, dated 22‑8‑1982 granting ejectment application of the respondent on the ground of conversion of the premises from the use for which it was originally let. The respondent instituted rent case on the ground of default, change of use of the premises, nuisance, subletting and impairment of the value and utility of the premises by causing damages. The application was resisted by the appellant who denied all the allegations made against him in the application. The Rent Controller after recording evidence of the parties and hearing them decided all the issues except issues Nos. 1 and 3 against the respondent. As a consequence of decision on issues Nos. 1 and 3 the ejectment application was granted and appellant was ordered to be evicted. The learned counsel for the appellant contends that the conclusion of the Rent Controller on issues 1 and 3 holding that there was conversion in the use of the premises is not correct. It is urged by the learned counsel that the premises were let out for the purpose of running business and setting up of a different kind of business did not amount to the conversion of the use of the premises. It is also contended by the learned counsel that the purpose for which the premises could be let out are either residential or commercial and in so far the appellant used the premises for running a business its use remained commercial and no contravention of the law committed. The learned counsel for the respondent on the other hand contended that in the written argument of tenancy between the parties it is specifically mentioned that the appellant shall open a provision shop in the premises and, therefore, by using the premises for any other business would amount to conversion of the premises to a purpose other than for which it was originally let out. The learned counsel for the respondent also contended that he would support the order of the Rent Controller on issues 2, 4, 5 and 6 which were decided against him. After hearing learned counsel for the parties I am of the view that in so far findings on issues 1, 3 and 5 are concerned, they require consideration by the Rent Controller after site inspection of the premises. However, findings of the Rent Controller on issues 2, 4 and 6 need no interference. It is an admitted position that under issues 1, 3 and 5 it is alleged that the use of the premises has been changed and that the appellant has committed such acts as are likely to impair materially‑the value and utility of the premises. On these issues the respondent ‑ supported his evidence by producing two photographs of the premises which are marked as Exhs. A/2 and A/3. The appellant both in the cross‑examination of the respondent as well as in hi own evidence denied that the photographs A/2 and A/3 related to the shop of the appellant. After close of the evidence in the case the respondent moved an application in view of the above denial by the appellant for inspection of the premises and this application was granted by the Rent Controller. However, on the day the inspection was fixed the appellant or his representative did not appear and, therefore, inspection could not be made. The learned counsel for the respondent contends that as a result of failure of the Rent Controller to inspect the premises the evidence on record could not be properly appreciated which has resulted in the miscarriage of justice. It is also contended by 'the learned counsel for the respondent that mere absence of one of the parties was not a ground to decline the inspection of the premises specially in a case where the appreciation of the evidence was to be done on the basis of the inspection report. After hearing learned counsel for the parties I am of the view that the contention raised by the learned counsel for the respondent that the Rent Controller should not have declined to inspect the premises because of absence of the appellant on the day fixed by the Court has sufficient force. The contention of the learned counsel for the respondent that in the case of this kind the evidence could be better appreciated in the light of the inspection report is also not without substance. The learned counsel for the appellant also did not oppose the prayer of the respondent's counsel that the premises may be inspected by the Rent Controller and, thereafter in the light of such inspection report the evidence may be re‑appraised for decision on issues Nos. 1, 3 and

5. This also appears to me a proper course in the above case. I accordingly accept this appeal, set aside the order of the Rent Controller, remand the case back with the direction that the parties shall appear before the Rent Controller on 30‑11‑1985. On this date the Rent Controller may either inspect the premises in presence of the parties or may fix another date according to his convenience for inspection of the property. It is also clarified that in case on the date fixed by the Rent Controller for inspection of the premises any of the parties remained absent, he may inspect the premises in the absence of such absenting party and thereafter decide issues Nos. 1, 3 and 5 framed in the case in the light of the inspection report and the evidence already on record. There will, however, be no order as to costs. H. B.T. Appeal accepted.