1988 PLP 59 (MLD)

This is an appeal under section 21 of the Sind Rented Premises Ordinance, 1979 against the order, dated 25th November, 1984 passed by the learned VIIIth Senior Civil Judge and Rent Controller, Karachi, by which the ejectment of the appellant was ordered. The respondent- filed an ejectment application before the learned Rent Controller stating therein that they were owners of building situated on Plot No. R.B. 6/2 known as Iqbal Chambers, at Dr. Ziaudin Ahmed Road, Karachi. That the opponent/appellant was the tenant in respect of a shop bearing No. G-2, ground floor of the said building at the monthly rent of Rs.

106. It was further alleged that the opponent had made unauthorised alterations in the shop premises without consent of the applicant. That he had got a well bored in the shop, constructed a large underground water tank, removed the control pillar of the shop premises, and had removed the walls of the store room, which existed in the shop premises, due to other additions and alterations the utility of the premises was impaired. It was further alleged that the opponent had affixed number of Gas-burners and a big Tandoor (oven) in the said shop which are causing nuisance for the other tenants. That the opponent had converted the nature of business for which the shop was originally let out, without prior permission of the respondent. The shop was originally let out for running business of sale of musical instruments, but now it has been turned into a Hotel. The opponent filed his written statement and denied the allegations. He denied that he had got a well bored in the demised premises or had constructed underground water tank. It was also denied that the central pillars or walls of store room had been removed by him. He has further stated that he is using a corner as kitchen as is being used for the flats on the upper storeys. He has further denied that he was running unauthorised catering business. According to him there was no necessity for obtaining permission either for securing Gas connection in the said shop or for change of nature of business. He has further denied that the operations of Gas burners or Tandoor are nuisance to the other tenants. According to him the nature of platform is temporary and the (oven) is improvised and they are not likely to impair the value or utility of premises. That the learned Rent Controller after recording the evidence came to the conclusion that the opponent/appellant was using the premises for the purpose other than the one for which it was let out, without consent of the landlord, and therefore allowed the application on this ground. I have heard Mr. O.M. Rashidi learned counsel for the appellant and Mr. HA. Rahmani learned counsel for the respondent and have also gone through the R & P of the case. It was contended by Mr. Q.M. Rashidi, Advocate that the appellant had taken the premises in question on rent for commercial purpose, and that he was using the same for the commercial purpose. It was further contended that mere change in the nature of business will not affect the right of the appellant as tenant: Mr. HA. Rahmani learned counsel appearing for the respondent has relied upon clause (b) of subsection (2) of section 13 and contended that the change of use of the property cannot be interpreted to mean that it should have been converted from commercial to residential or vice versa. He has further contended that the word `use' cannot be given enlarged meaning as put forth by the learned counsel for the appellant, and if it is accepted, the situation will become alarming. According to him the respondent had proved through photographs produced in Court, evidence of photographer Iqbal Hamid Sidiqui, tenants Fazal-ur-Rehman and Abdul Subhan, that the appellant was running a Hotel in the shop in question and thus he had put the same for a different use. That 4, 5 burners were kept in the shop and a Tandoor for preparation of bread was also put inside the shop. The appellant having admitted that previously the premises were being used for the sale of musical instruments and parts, andthereafter a Hotel business was being carried on in the said shop without permission of the landlord, the learned Rent Controller was right in allowing ejectment application. I have considered the contentions of the learned counsel and. have gone through the R & P of the case. It has been admitted by the appellant-tenant in para 7 of his affidavit that he has placed improvised (Oven) in the shop which was not of permanent nature and the same was with earth from around and he has been using the same as Oven for preparation of bread. He has further admitted in para 8 of the affidavit that Karachi Metropolitan Corporation had granted him licence on 3-6-1978 for carrying on business of catering. He has further admitted in cross-examination that the applicant had not given permission to any person to run Catering House, after purchase of building. He has further admitted that when he had taken the shop initially he used to run a shop in which he was selling musical instruments and parts but thereafter he had changed it into a Catering House. The contention of Mr. Q.M: Rashidi, Advocate that ejectment can only be ordered if the premises in question were used for different purposes i.e. if the premises were rented out for commercial purpose but they were converted into residential then alone the ejectment could be ordered is untenable. Section 13 (2) clause (b) reads as under:- "Used the building or rented land for purpose other than for which it was leased or has infringed any conditions of the tenure on which the building or rented land is held by the landlord." The bare reading of the above provision will show that the ground of ejectment which can be taken by the landlord, was not only that the premises were being used from commercial purposes to residential purposes or vice versa, A but they were being used for a different purpose than for which they were rented out by the landlord. In the present case the position is more or less admitted that initially the appellant was running a shop where he used to sell musical instruments and parts thereof, but subsequently he started running a hotel in the said shop. That he had put burners, Tandoor (Oven), and electric water pump in the shop which clearly shows that not only shop was put to different use, but the business was bound to affect the premises. In view of the above position I do not find any reason to interfere with the order passed by the learned Rent Controller and the appeal is therefore hereby dismissed. However I allow six (6) months' time to appellant-to hand over vacant possession of the shop to the respondent provided he continues to deposit monthly rent regularly as ordered by the Rent Controller. After period of'six months is over it will not be necessary for the Rent Controller to issue any notice in Execution pr6ceedings before ejectment warrants are issued. I have dismissed the above appeal on 24-9-1987 by a short order, and these are the reasons for the same. H.B.T./A-360-K. Appeal dismissed.