P L D 1988 Karachi 8 (PLP)

This appeal under section 21 of the Sind Rented Premises Ordinance, 1979 arises out of an order dated 15‑1‑1984 passed by the learned 10th Senior Civil Judge and Rent Controller, Karachi in Rent Case No.1642 of 1977, allowing the application for Ejectment from the premises situated on first floor on plot No.307‑C Central Commercial Area P.E.C.H. Society, Karachi, hereinafter referred to as the premises.

2. The appellant is the tenant of respondent at the rent of Rs.600 per month. An application was filed by the respondent under section 13 of the W.P.U.R.R. Ordinance, 1959 on 28th May, 1977 on the grounds of (1) default in payment of rent from January, 1977 to April, 1977 and (2) making illegal and unauthorised structural changes and material alteration in the said premises.

3. The appellant, in the first instance, disputed the relationship of landlord and tenant. A preliminary issue was, therefore, framed by the learned Rent Controller, who by his order dated 24‑9‑1980, decided the said issue in favour of the respondent holding that there exists the relationship of landlord and tenant between the parties. Thereafter the case proceeded on merits and the following issues were framed: ‑ (1) Whether the opponent is wilful defaulter in the payment of rent? (2) Whether the opponent has effected material changes by making addition ‑and alteration which have impaired the value and utility of the premises? (3) What should the order be?" The learned Rent Controller after recording evidence led by and on behalf of the parties and hearing the arguments of their counsel came to the conclusion, as regards issue No.1, that the appellant was not a wilful defaulter in payment of rent and that, as regards issue No. 2, he came to the conclusion that the appellant has materially impaired the value and utility of the premises and thus allowed the said application for Ejectment by his order dated 15‑1‑1984. The relevant portion of the order allowing the application, reads as under: ‑ "From the perusal of rent agreement it appears that the opponent was permitted to effect some alterations according to requirement and to make a doorway connecting it with adjacent building. The addition and alteration means the minor changes. In this respect the applicant has produced certificate of Architect as‑ Ex.2/b which mentions that the opponent has removed partition wall, doors, windows, ventilators and has also completely removed the bath rooms and kitchen and has converted the flat into a hall. Architect Jaffer Ali has stepped into witness‑box and has stood the test of cross‑examination at length. He has supported the contents of certificate as well as contention of the applicant. The opponent's attorney in his cross‑examination has admitted that there were two rooms and he has removed the partition wall and made it one hall. He has admitted that he has removed one door, three windows and latrine. The opponent has examined Mohammad Rashid Architect as Ex.5 who had admittedly visited the premises and had stated in his cross‑examination that there is no bath room and kitchen in the premises. The opponent had denied that he has removed the kitchen but from the aforementioned evidence of opponent witness Mohammad Rashid, it appears vi that he has removed the kitchen also. No doubt para 5 of rent agreement permits the opponent to make some alterations but the aforementioned alterations apparently speak that the opponent has dismantled the bath room, kitchen and had also removed the partition wall as well as doors and windows. The alteration does not mean that there should be dismantling of amenities like kitchen and bath room, in the instant case the opponent has deviated from making the alteration and has dismantled the necessary attachment to the premises . . . . .

4. Mr. Z.U. Ahmad, learned counsel for the appellant in the first instance, submitted that there was no relationship of landlord and tenant. For that submission, he placed his reliance on the following cross‑examination of the respondent:‑ "Originally it was in the name of 'my grandfather, then in the name of my father and thereafter in my name. As a 'reward' the premises was given to me by my father. I did not issue any letter with my signature about transfer of the premises to me, neither through my advocate. It is correct that the premises is still in the name of my father. My father still ‑collects money i.e.. Rent of the premises." I am afraid, the plea is misconceived. It appears that the promises originally belonged to the grandfather of the respondent. It was inherited by his father, who appears to have gifted the same to the respondent. An application for mutation of the said premises in the name of the respondent was made by his father to 'the P.E.C.H. Society, which was granted and a Letter No. 730/307‑C/76 dated 14th July, 1976 was issued by the Secretary of the Society, mutating the property in favour of the respondent. The father of the respondent, Abdul Rashid sent a notice dated 15‑1‑1977 (Ex.1‑C) to the appellant informing her that the building on plot mentioned in the letter has been transferred in the name of the respondent and that in future rent may be paid to the new owner. Two letters dated 12th February, 1977 and 1st March, 1977 (Exs. 1‑13 and 1‑F) have also been produced in the evidence written by M.A. Baqi, the husband and attorney of the appellant to the respondent stating about the transfer of ownership of the building, in favour of the appellant and asking his instructions for payment of rent to him, either by money order or depositing the same into the respondent's bank account. Reliance has been rightly placed by the learned counsel for the respondent on a decision of the Honourable Supreme Court, reported as Sabu Mal v. Kika Ram alias Heman Das 1973 S C M R

185. It will be advantageous to reproduce the following passage appearing at p.188 of the said judgment: "The term 'landlord' is defined in clause (c) of section 2 of the Ordinance as meaning any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf of any other person or as a trustee, guardian, receiver, executor or administrator for any other person, and includes a tenant who sublets any building or rented land in the manner hereinafter authorised and every person from time to time deriving title under a landlord. It will be seen that the transferee from the original landlord would be covered by this definition as a person for the time being entitled to receive rent in respect of the rented building or land. Such. being the case the relationship of landord and tenant came into existence between the parties before us once the rights, title and interest of the original landlord were transferred to the respondent under the sale effected in May 1964. This tenancy was in no way dependent upon the service of a notice under section 13‑A of the Ordinance." On the basis of the evidence led by the respondent the issue of the relationship of landlord and tenant appears to have been correctly decided by the learned Rent Controller and calls for no interference. It is noticeable that the appellant did not lead any evidence in support of her plea for the alleged non‑existence of the said relationship. In fact, her counsel filed a statement in writing to that effect. Even otherwise the question of notice under section 13‑A of the Ordinance will be relevant in only one situation, namely, the question of default in the payment of rent. An Ejectment application on the ground other than that of default in the payment of rent, cannot be said to be at all affected by the provisions of section 13‑A. If an authority is needed, 'the same may be found in 1973 S C M R 185, supra.

5. Mr. Z.U. Ahmad, submitted, next, that the alterations made by the appellant in the premises were duly authorised under clause (5) of the tenancy agreement dated 25‑4‑1973. The said clause reads as under:‑ "(5) That the Lessee shall have all the rights to make any alteration according to her requirements and to make a doorway connecting it with the adjacent building also rented by the Lessee." Relying on the above clause, learned counsel submitted that the word 'any' as per Oxford Dictionary means "one, some, no matter which in any degree". For the meaning of 'any' reliance was also placed by him on a decision reported as Jumma Khan Baluch v. Government of Pakistan PLD 1957 (W.P.) Kar. 939, wherein a Division Bench of the earstwhile High Court of West Pakistan interpreting the word 'any, occurring in sub‑clause (a) of clause (4) of para 7 of the Foreigners' Order 1951, observed as under:‑ "The counsel of the petitioner argued that the order of the Civil Authority dated the 1st April, 1957, which could be issued under clause (4) of para 3 of the Foreigners Order, 1951, is invalid, because according to sub‑clause (a) of clause (4) of para. 1 of the Order the entry of "any" foreigner into Pakistan could be prohibited. The word "any" according to him, has imposed a condition that the person whose entry is prohibited should be named or he should be described with sufficient particularity. It was pointed out to the counsel that the word 'any' can in law also mean 'all'. He did not dispute the possibility of this construction and was content with repeating his objection. As pointed out above, the description given in the order of the party which entered Pakistan appears to be satisfactory." Learned counsel, therefore, submitted that the respondent had given a blanket licence to make all alterations in the premises to suit the requirements of the appellant.

6. Mr. Omrani, learned counsel for the respondent submitted, firstly, that the tenancy agreement was executed on 25th April, 1973 for two years. It was provided in clause (8) of the said agreement that after the expiry of the said period, the lessee will apply for further lease. This agreement expired after two years and no further agreement of lease was executed. Therefore, clause (5) of the said agreement cannot be pressed into service, as the alterations were made in April, 1977. In this respect, he referred to para 13 of the Ejectment application which is reproduced as under:‑ "and that the cause of action also arose in the month of April, 1977 when the opponent without the prior consent in writing of the applicant demolished 2 bedrooms, 1 dining room, one drawing room, bath room and kitchen and made the illegal and unauthorized structural additions and the material alterations in the demised premises by putting additional roof, door adjacent to the neighbouring building, erecting cement block wall by closing openings of the eastern wall of the demised premises, plastering the whole premises making it as one being hall, re‑wiring of electricity and conversion of the residential premises into the commercial premises for the sole commercial use. The counsel also referred to paragraph 10 of the affidavit in evidence of the respondent. It reads as under:‑

10. That the Opponent has made illegal and unauthorised construction in the demised premises without the 'perior premission of the applicant and without the prior sanction and/or approved Building plan. It is mandatory upon the opponent to have obtained the approved Building plan from K.M.C. with the consent of the applicant as required under the Municipal Law for the above‑mentioned structural changes ,and/or the material alterations made by the opponent in the demised premises. The aforesaid illegal and unauthorised construction in the nature of the structural changes in the demised premises were made in the month of April 1977 and the work As still in progress. The opponent has, in fact, reconstructed the demised premises by making it as one big hall and plastered the load bearing external walls from inside and that the opponent has constructed additional roof below the original roof of the demised premises." It is noticeable that the respondent was not cross‑examined by the appellant's counsel with regard to the alterations alleged to have been made in the year 1977. The assertion of the respondent that the alterations were carried out in 1977 finds further support from his cross‑examination by the counsel for the appellant that "since last about five years the garments business is going on in the premises in dispute". This was stated on 5‑9‑1981. He also referred to the certificate produced by the Architect which supports his case. Relevant portion of the said certificate dated 2‑5‑1977 is reproduced below:‑ "I have found that they have removed all partitions walls, doors, windows and ventilators etc. Also they have completely removed the bath room as well as kitchen. They have converted the residential flat into hall. As a matter of fact the building is constructed on columns as well as on load bearing walls. Therefore, there is every apprehension of structural defects caused by the removal of these walls. There is every likelihood of structural crack of 1st floor after some time, which may affect the stability of the lst floor roof."

6. On the other hand the appellant has examined her husband and attorney, who has denied to have carried out the alteration in the year 1977. In the affidavit in evidence of the appellant's husband, he however, stated that the alterations were made without affecting foundation of main structure of the building and that he removed only temporary partition walls according to her suitability for running her business of readymade garments. The certificate of the Appellant's Architect dated 18‑12‑1982, is silent about the removal of the kitchen and bath room. However, the Architect has admitted in his cross examination that he visited the premises on 18‑12‑1982 and that there were no partition walls and there was a big hall. There were no bath room and kitchen in the premises. He also admitted in his cross examination that the permission of KDA and KMC is necessary when the walls are removed.

7. The question as to the time of carrying out alterations "in 1977" does not seem to have been adverted to by the learned Rent Controller. The question of time is, however, relevant. If on the basis of evidence it is found that the alterations were carried out in April, 1977 or thereabout, the protection, if any, of clause (5) of the agreement cannot be invoked in aid. The appellant on the expiry of the agreement in 1975, will be deemed to be statutory tenant and the relationship will be governed by the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959 and thereafter Sind Rented Premises Ordinance, 1979. The burden to prove the said alterations, during the period of tenancy agreement was on the appellant, as the words any alteration' are to be construed against the person or party who invokes them in aid. It was she who performed the said act of alteration and has direct knowledge and evidence to prove the said alteration during the period of subsistence of the agreement which she failed to discharge; whereas the respondent so alleging in the Ejectment application, producing architect' certificate in 1977, filing 10 photographs of the alterations in the Court and giving evidence of the alterations carried out in 1977, which went unchallenged, go to show, at least by preponderance of evidence. that the alterations were made in April 1977 or thereabouts and. therefore, the appellant cannot take shelter behind clause (5) of the agreement, which had already expired. The appellant's counsel in, this respect took only a technical objection that this is a new plea and cannot be taken at this stage. I am afraid, the plea is unfounded. D This Court in first appeal, can allow a new plea if the same is based on the facts already on record and the plea can be decided without any necessity for recording further evidence in the matter.

8. However, even otherwise, the appellant's attorney has admitted in his cross‑examination that he has removed the partition walls and made the entire premises into one hall. Although the appellant's attorney has denied that he has removed the kitchen but from the evidence of both the Architects it is clear that he has removed the bath room as well as the kitchen. I have also looked into the approved building plan of the building (Ex.2‑D). The first floor of the building which is in occupation of the appellant shows two bedrooms, one drawing room and one dining room with one bath and one kitchen, but now as proved by the evidence, even if for argument's sake, it is supposed that these alterations were carried out during subsistence of the agreement, i.e.. 1973‑75, the entire premises has been converted into a hall, by removal of walls, doors, window, ventilators, kitchen and bath room. The question, therefore, arises, whether such an act of the appellant is secured by clause (5) of the agreement, and whether it has impaired the value and utility of the premises in question. For determining the scope of alterations it is noticeable that the agreement after authorising the appellant for 'any' alteration, specifies particularly about "making a doorway connecting it with the adjacent building also rented by the lessee" . The question arises, why this specific mention of making "doorway". To my mind, it was mentioned specifically as it was to involve dismantling part of a wall. It may, therefore, be inferred that 'dismantling' was not intended in the alteration. Had the intention of the parties been to carry out 'all' alterations of any sort or magnitude including dismantling walls. removing kitchen, bath room, doors windows and ventilators, there was no need for making a specific provision for doorway in the said clause. In order to ascertain the intention of the parties to the agreement, clause (5), as a whole, is to be read. Furthermore, the alterations authorised under the agreement must not be in contravention of any law i.e.. Building Rules and Regulations as an expressed right or liability does not restrict the implications of law. If a certain alteration in the existing structure is made which requires permission by law, the parties cannot contract out of the same, in disregard of that law or in violation of any condition prescribed by law. The alterations carried out are not in accordance with law, which, as per statement of the appellant's own architect has been violated, inasmuch as the permission of the K.M.C. and K.D.A. is necessary for the removing of walls. In fact the appellant seems to have dismantled the entire construction except the roof and the four walls in the garb of alteration, which even a landlord cannot do without seeking permission from KMC and KDA as admitted by the appellant's architect himself.

9. Even if the submission of the learned counsel for the appellant that the appellant was authorised to make 'all' alterations is taken to be correct, for argument's sake, it should be in line with the purpose of the premises let out to the appellant. The premises was let out for residential‑c um ‑commercial purposes. So, alteration must be such as not to disturb or affect the said two uses of the property. By demolishing partition walls and thus altering the bedrooms into a big hall, removing doors, windows, ventilators, kitchen and bath room has not only disturbed and affected its use for residential purpose but has turned the premises into a purely commercial use, effacing its residential purpose altogether. Consequently, alterations carried out are against the very purpose for which the premises was let out which admittedly was combined‑ ‑residential and commercial both. The! alteration so as to convert the use of the premises for residential‑cum ‑commercial, into commercial only cannot be said to be sanctioned by, the agreement.

10. The sumission of the counsel for appellant that the word "any" used in the agreement covered 'all' alterations of any sort whatsoever, is misconceived. I may refer to the definition of 'any' from Webster. International Dictionary 1985 edition, wherein the meaning of the wore. 'any' has been given as "one or all" and "one or part". I may also, refer to the interpretation of the word 'any' occurring in section 4 (3) 0) of the Income Tax Act, 1922 which provides that 'any' income derived from the property held under trust . . . ... The word 'any as used in the above clause does not mean the whole but it can be part also. Had the intention been that the whole of the income derived from the property held under trust, it could very conveniently use the words 'entire income' in the proviso to section 4 (3) 0) or some such words had the idea really been that the whole of the income, arising from the property held under trust must go to the charitable purposes and not only a portion of it, as observed by the Appellate Tribunal, Karachi in the case of M/s. Hamdard Dawakhana. Trust. Karachi v. Income‑tax Officer IMI Division, Karachi (Taxation Vol. 1961). Reference may also be made to the case of M/s. Hamdard, Dawakhana v. Commissioner of Income‑tax, Karachi (PLD 1980 Supreme Court 84). It is a recognized principle, that while interpreting a particular word used in a statute the other provisions of the Actual must also be looked into in order to find an appropriate meaning of the word. The same rule applies to the interpretation of a word used in an agreement that while interpreting the word used in an agreement, the document as a whole be taken into consideration to harmonize the H construction. This is a safer rule of interpreting a certain word occurring in a statute or any agreement that it is to be interpreted (A with reference to the context of the statute or the agreement, as a whole, to find out the real intention of the Legislature or the parties to the agreement. In the context of the agreement in question before me, I am unable to read the words "any alteration" as absolute or unqualified for all intents and purposes. The words "any alteration will be read in conjunction with other terms of the agreement and the law of the land. In this respect I am of the view that the words ,any alteration' used in clause (5) of the agreement will be read as "some" and not 'all' and it is subject to other conditions of the agreement and the Building Rules and Regulations governing such alterations. 11. it is provided in section 13 (2) (iii) of the West Pakistan Urban Rent Restriction Ordinance, 1959 which reads as under:‑ (iii) the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land; or" It was provided in clause (3) of the agreement of lease that the appellant shall use the premises for residential‑cum‑commercial purpose. The removal of partition walls, doors and windows of the two, bed‑rooms, and the dismantling of the kitchen and bath room an 'I is turning the entire premises into a big hall has rendered the premises, unfit for family residence. It may be suitable to the appellant's business requirement, but she was not authorised to carry out an alteration in the. premises so as to convert its residential‑cum ‑commercial purpose to commercial purpose only. It has impaired its utility inasmuch as the alterations are of such nature so as to make it unsuitable for residence. The removal of kitchen and bath room, partition walls, doors and windows and ventilators has also impaired the value of the premises.

12. In the end, I refer to an order of the Honourable Supreme Court refusing to grant leave to appeal, reported as Fayyaz Ali Khan v. Haji Muhammad Sharif 1981 S C M R 545, relied upon by Mr. Omrani which goes to support his case on the point of impairing the value of the building. The relevant portion reads as under:‑ "However, the landlord's evidence that the petitioner had unilaterally removed the intervening wall separating the two portions of the shop also stood unrebutted on the record, and on its basis both the Courts below have recorded a concurrent finding that the petitioner had, indeed, caused damage to the property and impaired its value. We do not see how this finding can be said to be based on no evidence, or being as a result of misreading of evidence. On this view of the matter it stands established that the petitioner had rendered himself liable to Ejectment. The present petition, accordingly, fails and is hereby dismissed.

13. For the reasons aforesaid, I find no justification to interfere the impugned judgment. The appeal is, therefore, dismissed with costs. However, she is allowed one month's time to put the respondent in possession. The above are the reasons for my. short order dismissing the appeal on 28‑9‑1987. A.A/M-280/K Appeal dismissed.