1988 PLP 925 (CLC)

The facts leading to the filing of the above appeal are that the respondent is the landlady/owner of building known "Teens Lodge" standing on Plot No.l/3, Commercial Area, Bahadurabad, Karachi and the appellant is tenant in respect of Shop No. 4 at the monthly rent of Rs.300 since 1‑7‑1972. The respondent filed eviction application being Rent Case No. 2330 of 1974 against the appellant on the ground that the appellant has raised unauthorised and illegal Pucca construction at the back of the shop premises in the shape of a covered room and has joined it with the said shop. This was done without the permission of the respondent. The appellant resisted the eviction application. The appellant contended that the alleged construction is neither pucca nor it is unauthorised or illegal. The appellant admitted that the alleged construction does not form part of the shop premises. The respondent filed affidavit‑in‑evidence of her duly constituted attorney M.A. Manzoor. The appellant filed his own affidavit‑in‑evidence in rebuttal. They were cross‑examined by the learned counsel for the respective parties. The Controller on the basis of the evidence adduced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties decided issues 4 to 6 in the affirmative, issue No. 7 in the negative and issues 1 to 3 in the affirmative and allowed the eviction application vide the order, dated 11‑4‑1985. The appellant being aggrieved against the order, dated 11‑4‑1985 of the XVth Senior Civil Judge/Rent Controller, has preferred this First Rent Appeal on the grounds mentioned in the memo. of appeal. I have heard the learned counsel for the parties and have perused the impugned order. The question which arises in this case and ought to be considered is whether on the facts found by the learned Controller the eviction order of the tenant /appellant is tenable in law. The eviction application was allowed on two grounds; (1) The appellant has raised the unauthorised construction in the disputed premises and has joined the back portion of it in Shops Nos. 4 and

2. By raising this illegal construction the appellant has impaired the value and utility of the premises in question. The grounds on which a tenant can be evicted are specified in section 13 of the Sind Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the repealed Ordinance). The tenant has committed such acts as are likely to impair the value or utility of the building or rented land. The tenant has been guilty of such acts and conduct as are nuisance to the occupants of buildings in the neighborhood. The tenant has, without written consent of the landlord, infringed any condition of the tenure on which the building or rented premises is held by the landlord. These grounds are specified in clauses (ii)(b), (iii) and (iv) of subsection (2) of section 13 of the repealed Ordinance. It appears therefore, that the eviction application has been allowed on the grounds specified in sub‑clause (n) of clause (ii), clause (iii) and clause (iv) of subsection (2) of section 13 of the repealed Ordinance. Mr. Khalid Anwar has impugned these findings and has urged that even on facts found for the learned Controller none of these grounds are made out. If any of these grounds are made out, there is no scope for interference by this Court. The respondent averred that the appellant has recently raised an unauthorised and illegal Pucca construction, at the back of shop premises, in the shop of a covered room and has joined it with the said shop. The respondent further averred that the unauthorised construction on the land belongs to her. The appellant admitted in his written statement that the alleged construction does not form part of the shop premises. The appellant denied that it is likely to impair the value of utility of the building in any manner. The attorney of the respondent stated that the land on which the above Pucca construction has been raised does not form part of the shop premises rented out to the appellant. The appellant has raised an unauthorised illegal construction in the shape of a covered room and has joined it with the Shop No.4. The attorney denied the suggestion in cross‑examination that he permitted appellant to use back portion of shop in question. The appellant stated that a temporary structure was raised with the permission and knowledge of the respondent's attorney. The appellant further stated that on the back of the shop premises, there is a door and some space which is lying upon which has beers used by various tenants of the building. The appellant admitted in his cross‑examination that there are draw in pipes on the back of these shops. The appellant admitted in his cross‑examination that there is no space to come and go out from backside of the Shops Nos. 4 and

5. Now what is a permanent structure. The question whether a particular construction is a permanent structure or not depends upon the fact's of each case and no hard and fast rule can be laid down with regard to this matter. In order to decide whether a construction is permanent or temporary two factors are of primary importance namely, the nature of the structure and the intention with which it is made. If the nature of the structure is such that the structure will endure for a long time i.e. so long as the tenant expects to remain there as a tenant and the intention of the tenant in constructing the structure is that he shall use it as long as he remains a tenant, the construction will be regarded as a 'permanent structure' within the meaning of section 108(p) of the Transfer of Property Act even though the construction may be capable of removal without causing damage to the premises. It is in the light of these principles that I must consider the evidence regarding the nature of covered rooms constructed by the appellant. The perusal of the evidence adduced by the parties shows that appellant has constructed a room intending to use it as a room for keeping merchandise during the term of his tenancy. Even assuming that mode of annexation of the room was such that it could be dismantled without causing damage to the leased premises, 'in view of the nature of the construction and the intention of the tenant to use it for keeping merchandise during the entire term of his tenancy and not merely temporarily, the aforesaid construction must be held to be a permanent structure. As it was constructed without the permission of the respondent and her attorney unauthorisedly and, therefore, the eviction application was rightly granted. The only question remains to be determined whether it has been unauthorisedly constructed upon the leased premises or not. This is not clear from the pleadings of the respondent. If it is constructed on leased premises, then it is covered underground specified in clause (iii) of subsection (2) of section 13 of the Ordinance. If it is constructed on the open space then it is covered under sub‑clause (b) of clause (ii) and clause (iv) of subsection (2) of section 13 of the repealed Ordinance. It is now well‑settled that only those acts by which a tenant impairs materially the value or utility of the building will entitle the landlord to obtain an order of eviction. In other words, acts by al tenant which do not impair materially the value or utility of the building will not entitle the landlord for an order of eviction. The evidence of the attorney of the respondent and the admission of the appellant was sufficient for arriving at the finding that the appellant has constructed a covered room and joined it with the Shop No. 4 without the consent of the landlady or her duly constituted attorney. I do not see any reason to differ from the conclusions arrived at by the learned Controller on this aspect. Even I assuming that the appellant herein had constructed on the premises which were not let to him, in such a way that his acts had not impaired materially the value of the building, but had been guilty of such acts and conduct as are a nuisance to the occupants of the building, as it has blocked the way. I find that such constructions had impaired the utility of the building from the point of the landlord. I see no reason to interfere with the eviction order of the learned Controller. In the result the appeal is without merit and it is accordingly dismissed. However, the appellant is allowed six months' time to vacate the premises in dispute. H.B.T./M‑273/K Appeal dismissed.