' The facts and the law applicable in all these matters are common and hence I propose to dispose of the same through this order. The respondent No.2 viz., Anjuman Jamatul Akhwan is admittedly the owner/landlord of the rented premises consisting of shops which had been leased out to the petitioners/tenants. The landlord had filed Rent Cases against the tenants praying for their eviction on the basis of default in payment of rent as well as impairment in the value of the premises viz. Removal of partition walls in the shops. The learned Rent Controller disallowed the plea of the default but passed an ejectment order on the basis that the material value of the shops had been impaired by the tenant. The tenants filed F.R.As. In this Court against the order of the Rent Controller which were, after the amendment of the Ordinance, sent back to the learned District Judge, Karachi South, for disposal according to law. The matter was marked to the learned 111rd Additional Judge, Karachi South, who vide the impugned judgment, upheld the orders of the learned Rent Controller and hence these petitions with the prayer that the impugned judgment as well as the orders of the learned Rent Controller be set aside.
2. Mr. Faisal Kamal learned counsel for the petitioner has firstlysubmitted that there is no evidence to support the findings/conclusions reached by the learned Rent Controller as well as by the learned Appellate Court that any impairment as to the utility of the rented premises was caused by the petitioners. In this respect he has referred to the cross-examination of the landlords attorney/witness wherein he has admitted that he did not know when the wall in between the shops in question had been removed. However, he has voluntarily stated that this was discovered by him when he visited the shops upon being appointed the attorney of the landlord. On the other hand per learned counsel the attorney of the of the opponent has steadfastly maintained under cross-examination that the shops in question did not have any division walls but to the contrary were located in a big hall. Consequently per learned counsel the learned trial Court as well as Appellate Court fell into a grave error while holding that since the shops were numbered separately and separate rent receipts were issued by the tenants therefore these'must have been separate units/shops and hence by amalgamating them into onebig hall, it necessarily follows that their material value must have been impaired. Learned counsel has submitted that the foregoing conclusion arrived at by learned Courts below is in conflict with settled law per Intizar Ahmed Khan v. Mst. Khatoon Hadi (1995 SCM R 194) wherein the Hon'ble Supreme Court has held that the buden of proving material impairment in the value of the rented premises lies upon the landlord, and also, that simpliciter removal of partitions wall is not sufficient to warrant eviction of the tenant in terms of section 15(2)(iv) of the Ordinance. Learned counsel has therefore, prayed that petitions be allowed and the orders of the Learned Rent Controller as well as the Appellate Court be set aside.
3. On the other hand Mr. B.K. Tariq appearing for the landlords has submitted that it was quite impossible to even conceive the nonexistence of separate shops in the fact of positive evidence that these shops were numbered separately and so also separate rent receipts were issued.
Learned counsel has further submitted that Intizar Ahmed Khan v. Mst. Khatoon Hadi (supra) is distinguishable on the ground that there the Hon'ble Supreme Court was of the view that upon removal of partition walls the shops in question became accessible from both sides of the road and hence to the contrary their value had been increased. He has relied upon Messrs Organon Pakistan (Pvt.) Ltd. v. Rafat Ali Khan (1999 SCM R 54). Wherein the Hon'ble Supreme Court has held that it not the quality/quantity of the changes in the rented premises which would determine whether or not any material impairment in the value thereof had been brought about but the effect of the same and in this respect even a temporary change may be sufficient to warrant eviction under section 15(2)(iv) of the Ordinance. Learned counsel has therefore, prayed that the petitions be dismissed.
4. I have heard both the learned counsel. My conclusions are as follows:--
5. It would be seen that before the Rent Controller, the only evidence led by the landlord as regards the impairment of the rented premises value is the deposition of their attorney to the effect that the partition walls in between the shops in question had been removed by the tenants. However, under cross-examination the witness has admitted that he never knew when the walls were removed but the same was discovered '13/ him when he visited the shops upon being appointed as an attorney.
It is settled law that the burden of proving material impairment in the value of the premises is upon the landlord. In my view in the circumstances of the case it has not been established by the landlord that a mere removal of the partition walls in question would have the effect impairing the value of the shops. In Intizar Ahmed Khan v. Mst Khatoon Hadi (supra) it has been held as much by Hon'ble Supreme Court in theabsence of any evidence that the walls in question had any structural value etc. As regards the case of Messrs Organon Pakistan (Pvt.) Ltd. v. Rafat Ali Khan (supra) in my view the same is distinguishable from the facts of the present matter, as there in the Hon'ble Supreme Court found that based upon the evidence on the record there had been a material impairment in the value/utility of the premises in question inasmuch as the kitchen of the bungalow was demolished for purposes of office accommodation and one of the servant quarters on the first floor converted into a kitchen. It was held by the Hon'ble Supreme Court that such flagrant conversion of the rented bungalow would definitely impair the value of the same. In the circumstances I would allow the petitions and set aside the order of the learned Appellate Court as well as the learned Rent Controller to the extent that the petitioners/tenants merited eviction from the rented premises in the facts and circumstances of the case. Order accordingly. Petitions stand disposed of accordingly.