'HAMID ALI MIRZA, J.--- This civil appeal with leave of the Court is directed against the judgment dated 29-5-1997 in F.R.A. No,51 of 1994 (S. Bux Elahi v. Sadaat Ali Baig), whereby the said First Rent Appeal was allowed, consequently, order of eviction of the respondent/opponent/tenant in Rent Case No,642 of 1986 was reversed/set aside by a learned Judge in Chambers of the Sindh High Court at Karachi.
2. Brief facts of the case are that the opponent/landlord filed eviction application under section 15 of the Sindh Rented Premises Ordinance (hereinafter referred to as the Ordinance) in the Court of Rent Controller, Karachi East on the grounds that (i) he required the shop premises for his personal bona fide need in good faith, (ii) the respondent/tenant has committed such acts which have impaired materially the value and utility of the said shop premises, and (iii) further that the said respondent/tenant has also caused such acts which have caused nuisance to the neighbours and passers-by. The respondent/tenant contested the eviction application of the appellant by filing written statement wherein he denied the averments made in the eviction application. After filing of written statement, issues were settled and the parties filed their respective affidavits and also of their witnesses, who were cross-examined by respective adversary counsel of the parties. The learned Rent Controller after recording above evidence and hearing the learned counsel for the parties held that the personal bona fide need in respect of shop premises was not proved whereas the respondent/tenant was held to have committed acts which have impaired materially the value and utility of the demised premises and have also committed acts which caused nuisance to the neighbors'. Consequently, on the basis of latter findings, the eviction of the respondent/tenant was ordered. The respondent/tenant filed an Appeal No,547 of 1991 before the Sindh High Court which was heard by a learned Judge in Chambers and was allowed on 26-4-1993 whereby eviction order was set aside and the matter was remanded to the Rent Controller to record evidence of the parties on the additional issue framed who recorded the evidence of the parties on the additional issue and after hearing the learned counsel for the parties, allowed the eviction application and ordered ejectment of the respondent. The respondent filed F.R.A. No,51 of 1994 before the Sindh High Court, which was heard by learned Judge in Chambers, who allowed the said appeal and reversed the order of ejectment. The appellant preferred civil petition for leave to appeal before this Court, wherein leave to appeal was granted by this Court on 30-12-1997 to consider the contentions raised by the learned counsel for the appellant that the learned Judge in Chambers has not adverted to the evidence on record and has- simply made reference to the decided cases on the question of law when there existed sufficient material to show that there was a wall in-between the shop and the open space of store room which wall was demolished by the respondent/tenant and consequently there was infringement of the terms and conditions of tenancy agreement but the learned Judge in Chambers erred in law and fact by not adverting to the evidence consequently came to the wrong conclusion.
3. We have heard the learned counsel for the appellants and respondent in person and also perused the record.
4, The main contention of the learned counsel for the appellants is that the learned Judge in Chambers has completely failed to consider the evidence on record in respect of additional issues and the other issues but has only referred to case-law without appreciating the evidence in respect of the same which has resulted grave injustice in arriving at the correct conclusion/finding.
Respondent in person has supported the impugned judgment and has reiterated his contentions made in the written statement.
5. We find merit and substance in the submission of learned counsel for the appellant. In order to appreciate the submissions of the learned counsel for the appellant it would be relevant to peruse the contents of the eviction application and affidavit filed by the appellant/ landlord and his witness Mushtaq Ali Baig and cross-examination of the both, so also affidavit of the respondent and his witness Maqsood Ahmed and their cross-examination. But before considering the above evidence, contents of the admitted tenancy agreement will have to be perused and considered.
The execution of the tenancy agreement, dated 20-8-1975 is admitted by the respondent/tenant which was produced by the appellant. Para.4 of the said agreement reads as follows:- "Whereas the lessor is the sole and exclusive owner of all that the piece or parcel of land with building thereon bearing No,894/C-1, Central Commercial Area, P.E.C.H.S. Is willing of giving Shop No,1, consisting of one room, as a shop and the back space of Shop No,1 and Shop No,2 as store."
' The appellant/landlord in his eviction application has also given the above said particulars of the rented premises in para.1 of the said application which have been further clarified in subsequent paras. Of the eviction application. The appellant has reiterated the details of shop premises in his affidavit. There is no suggestion in denial with regard to the fact that the respondent/tenant was riot rented out the shop and back portion of shops Nos.1 and 2 as store to the respondent/tenant side. The learned counsel for the respondent has also not given suggestion in denial, in cross- examination of the appellant, that the admitted tenancy agreement did not contain the term that the respondent/tenant was rented out Shop No,1 and the store which was behind the portion of Shops Nos.1 and 2. The learned Rent Controller in his judgment dated 20-12-1993 after remand has observed "the above description shows that demised premises consists of one shop and back space of Shops Nos.1 and 2 as store This reveals that there was space behind the two shops as a store and if there .Had been no wall behind the shop and the space for the store, then, there would have been no mention of the space as store in the tenancy agreement". The respondent/tenant in the cross-examination has also admitted that he was given one shop and one room from the backside of said shop on rent. This fact is further clarified and is corroborated by the appellant that there existed wall between the shop and store room rented out to the respondent/tenant in his affidavit and in the cross-examination made by the respondent/tenant. It is, therefore, clear that the wall was very much there at the time of tenancy agreement and the respondent/tenant demolished the same and subsequently denied the existence of wall itself. Para.4 of the tenancy agreement reads: "That the lessee shall not make any addition, alteration or any structural changes of any kind in the said premises without prior permission in writing of the lessor". By demolition of wall in-between the shop and the store, the respondent/tenant has contravened para.4 of the terms and conditions of the admitted tenancy agreement, which being violative of section 15(2)(iii)(c) of the said Rent Ordinance. The finding of Rent Controller on the said issue after remand by High Court is based on proper appreciation of evidence on record. The said evidence from the side of appellant could not be rebutted by the respondent, therefore, the finding of the learned Rent Controller could not have been interfered with by the learned Judge in Chambers by only citing the case-law which in fact did not apply to the facts and circumstances of instant case considering that the cited cases were decided on the basis of evidence recorded therein. It be observed that the respondent/tenant in para.4 of the tenancy agreement had agreed not to make any addition, alteration or changes of any kind in the shop premises without prior permission in writing of the appellant/landlord. The case of the respondent is total denial of the existence of wall and not of having obtained any permission for removal of the wall which existed in-between the store and the shop. Admittedly removal of the wall in-between the shop and the store on the part of respondent/tenant amounted to change in the original structural plan of shop premises which plan was approved by K.D.A., therefore, reversal of the said finding by the learned Judge in Chambers is not based on proper appreciation of evidence on record and law.
6. Accordingly impugned judgment is set aside and appeal is allowed resultantly order of eviction against the respondent passed by learned Rent Controller is restored directing the respondent to vacate the shop premises within a period of six months without fail subject to payment of rent of the said period in the office of Rent Controller. In case the respondent fails to deposit the rent on the expiry of each calendar month for the said period or fail to vacate the shop premises on expiry of six months, the appellant would be entitled to get it vacant through execution application without further notice and police aid, if required.
' There shall be no order as to costs.