1989 PLP 1926 (MLD)

(a) . . . . . . . . . . . (b) used the premises for the purpose other than that for which it was let out; (c) . . . . . . . . . . . The above facts prove that the appellant having used the said premises for the purpose other than for which the same were rented out to him is liable to ejectment. Taking up the case of the three shops Mr. A.H. Rajput, learned counsel, for the appellant has argued that in the first instance the said walls connecting Shops Nos. 5 and 6 and the other wall intervening the Shop No.2 and residential premises were demolished by late husband of the landlady and not by him. This contention of the learned counsel is devoid of any force as there is no evidence on record to prove the same. It is merely an oral word of the appellant which cannot be accepted without any corroborating evidence. He then argued that ever-since the death of the husband of the landlady she was in the knowledge of the alleged demolition and the rent case having been filed after a period of 9 years, she is deemed to have acquiesced in the same. He has relied on the case of K.C. Mamoo v. Mrs. Badrunnisa (1985 C L C 332) and Mst. Zulekhan Bibi v. Hakim Nasiruddin (1985 C L C 1934). With respect to the above-said decisions I am of the view that the same do not apply to the present case as the knowledge of the landlady had to be proved by the tenant as a matter of fact. In the present case there is no evidence brought in this respect. Whereas the respondent/landlady has clearly explained that it was only one week before filing of the present case that she acquired the knowledge of the said demolition. From the above facts I am of the view that of course the landlady would be barred to bring an action in respect of any addition, alteration are demolition, provided she had the knowledge of the same and she waived her right to take action for considerable long time. But this is not so in the present case as here the landlady within one week of having acquired the knowledge has filed the rent case. I am, therefore, of the view that she cannot be said to have waived her right. The next contention of Mr. A.H. Rajput appearing for the appellant, is that it is incumbent upon the, landlady to have proved that by such demolition, the value and utility of the premises in dispute have been materially affected. In this case the wall intervening the Shops Nos. 5 and 6 admittedly stand demolished and that the appellant is carrying on his business in the same for which purpose the said shops were rented out to him. Mr. A.H. Rajput learned counsel for the appellant hay relied on the cases of Mohammad Mirza v. Mohammad Ghani (PLD 1983 Kar. 162), M/s. Alba Industries v. Haroon and others (1985 C L C 2622), Mohammad Kassim v. Mst. Akhtari Begum (1985 C L C 1368), Umar Daraz v. Mst. Fatima arid 13 others (1986 C L C 103), Dr. Sherin Hatim v. Qutubuddin (1986 C L C 713). It will be advantageous to reproduce the provisions of Section 15 (2) (iv), which reads as under:-- "(2) The Controller shall make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that (i) . . . . . . . . . . . (ii) . . . . . . . . . . . (iii) . . . . . . . . . . . (a) . . . . . . . . . . . (b) . . . . . . . . . . . (c) . . . . . . . . . . . (iv) the tenant has committed such acts as arc likely to impair the material value or utility of the premises; (v) . . . . . . . . . . . (vi) . . . . . . . . . . . (vii) . . . . . . . . . . . No doubt that as provided in the above section the acts of the tenant with regard p to demolition or alteration can be made a ground for ejectment but over-riding contention is that those acts should be such as to have impaired the material value or utility of the premises. In view of the above I will also take up the question of demolition of the intervening wall between the Shop No. 2 and residential premises. I am of the view that the demolition of the same would materially affect the utility of the two premises involved for the reason that the common wall having been demolished the said Shop No. 2 and the residential premises stand amalgamated and thus the 'said Shop can no more be used for commercial purposes. It is an admitted fact that the entire premises were rented out jointly at the monthly rent of Rs. 275 per month as claimed in paragraph 2 of the application for ejectment and admitted in the written-statement. The said premises, therefore, cannot be treated as independent unit now on account of demolition of the said wall. For these reasons the Shops Nos. 5 and 6 having been included in the said single tenancy cannot be excluded. In view of the above discussion I uphold the order of the learned Rent Controller with the result that the present appeal is dismissed with no order as to costs. The appellant is allowed 60 days time to vacate the disputed premises. M.Y.H/A-554/X Appeal dismissed.