1993 PLP 1830 (CLC)

Nemo for Respondent. Date of hearing: 25th October, 1992: This appeal has been filed assailing the order dated 18‑12‑1988, passed by the learned IInd Senior Civil Judge and Rent Controller, Karachi (Central) whereby rent application filed by the respondent under section 15 of the Sindh Rented Premises Ordinance, 1979, against the appellant for his eviction, was granted. Briefly the facts of the case are that the appellant is respondent's tenant in respect of Shop No.8 in the building constructed on Plot No.SF/14/B North Nazimabad, Karachi on monthly rent of Rs.250, exclusive of all the taxes and charges. It was alleged that the appellant in :violation of the lease agreement had carried out additions and alterations in the shop and, in spite of the repeated demands on the part of the respondent neglected and avoided to remove the additions made by him. It is further alleged that the additions and alterations made by the appellant have impaired materially the value and utility of the promises in question and are cause of inconvenience and nuisance to the other tenants. The appellant denied the above allegations. His case is that due to the negligence of the respondent in maintaining the building, where the shop is situated, the dirty water started flowing from the ceiling and drainage of the residential unit above his shop, which caused heavy losses to the goods of the appellant. The respondent did not pay any heed to the appellant's requests in this regard. Under the circumstances he was left with no choice but to make suitable adjustments in the premises to store and protect his goods from being damaged by the leakage of water and also to save them from being stolen. It is alleged that the appellant had incurred huge expenses for the said purposes. It is denied that the above act had impaired the value and utility of the premises or is causing inconvenience or nuisance. It is stated that on the contrary the value and utility of the premises has been enhanced. The respondent examined its attorney Ikram Aziz, who stated that the appellant had constructed a wall and included the common corridor in, the shop and thereby blocked the passage. It was stated that because of the above illegal act the other tenants had to face difficulties in approaching their tenements and thus the act of the appellant had resulted in causing inconvenience and nuisance to the other tenants of the building. It was also deposed by him that the appellant had committed breach of the lease agreement and had materially impaired the value and utility of the building. In cross‑examination, it was admitted by him that the above grievance had ' arisen against the appellant in 1977. He also admitted that the appellant had not caused any hindrance to the' tenants of the residential units in the passage to their flats. He also admitted that the tenant residing above the shop of the appellant has not complained against the appellant. He admitted that there was leakage of dirty water from the 'upper floor into the shop of the appellant. He also admitted that the appellant had been making complaints to the respondent. It was admitted by him that the appellant was carrying on grocery business in the said shop. About the wall constructed by the appellant. it was stated by this witness that it was only 2 or 3 feet high where grill has been fixed by the appellant. He stated: "It is correct to suggest that due to leakage of water in Shop No.8 it was necessary to shift the goods of the same shop in the verandah. I cannot say that in order to save the goods from being stolen the construction of the wall and affixation of grill was necessary. I cannot say that because of negligence of the applicant the tenant of Shop No.8 was compelled to construct the disputed wall." The appellant in his affidavit‑in‑evidence deposed to the facts as stated by him in the written statement. He specifically stated that neither the erection of the grill has in any way impaired the value and utility of the premises nor it is causing inconvenience and nuisance as alleged or otherwise. On the contrary the value and utility of the premises had been very much enhanced. It is stated that there‑is no corridor which has been or could be closed from being used by other tenants and that all the shops including an auto workshop and a restaurant on the ground floor of the appellant building are approachable only from respective front and same is the position of the adjoining buildings. He has produced the photographs. The photographs show that each of the shops situated on the ground floor, including the shop of the appellant, have occupied the respective portions of the corridor in front of their shops and there is no corridor in existence. Even if the appellant removes the grill, the portion of corridor in front of his shop can be used only by him and will be of no use to other tenants of the respondent. The appellant was not cross‑examined at all. Therefore, whatever has been stated by him is 'to be taken as correct. In so far as the allegation with regard to violation of the terms of the agreements is concerned, the record shows that the parties had entered into agreements first on 26‑1‑1978 and then on 21‑9‑1982. Violation of the said agreements has not been alleged. On the contrary the execution of the agreements in 1978 and 1982 will amount to waiver of the earlier violation, if any, of the terms and conditions of the previous agreement which was allegedly executed in 1977. It may be pointed out that the above acts are alleged to have been done by the appellant in the year 1977, when it appears, there was no agreement in existence. In his context it may be observed that the rent case was filed in the year 1986, making grievance with regard to raising of about 2 to 3 feet wall, with grills which had taken place in the year 1977. The inaction on the part of the respondent by itself shows that they had acquiesced in the aforesaid act of the; eviction on that ground, which fact is completely established by execution of subsequent agreements. The learned counsel for the appellant has relied on the case, of Surayya Sultan v. M.I. Malik 1988 MLD 2936, wherein it has been specifically laid down that every unauthorised construction cannot furnish a ground for ejectment but only such an unauthorised construction which impairs materially the value or utility of the tenement that would give cause of action to the landlord. In this case the appellant has specifically deposed that the construction raised by him has enhanced the value and utility of the property and the said statement has gone unchallenged. As regards the nuisance and the so‑called inconvenience caused to the tenants, the appellant has specifically stated that no such inconvenience or nuisance has been caused and so far as the witness of the respondent is concerned, he admitted that none of the occupants of the building made any complaint in respect of the alleged nuisance or inconvenience. The learned Rent Controller did not apply his mind to the above facts and the material on record. The appeal is therefore, allowed And the impugned order dated 18-12-1988, passed by the learned IIIrd Senior Civil Judge and Rent Controller, Karachi (Central) in Rent Case No.1222/1986 is hereby set aside and reserved. H.B.T/M-1807/K Appeal allowed.