1. ' SAJJAD ALI SHAH, J.---This petition has been filed against the order of Vth Additional District Judge, Karachi South dated 13th January, 2005, passed in F.R.A. No. 75 of 2004, whereby the learned Vth Additional District Judge was pleased to remand the case to the Rent Controller with the directions to decide the same afresh after recording evidence of any expert on the point of additions and alteration which has impaired the value and utility of the rented premises.
2. ' The brief facts for the purposes of deciding this petition are that the respondent No.2 (landlord) initiated ejectment proceedings against the petitioners (tenants) on the ground that the petitioners without any authority made additions and alterations in the premises which impaired the value and utility of the building. It was claimed that the petitioners are the tenant in respect of an office premises admeasuring 3256 Sq. Ft. Consisting of two rooms with attached bath rooms, hall corridor/passage, kitchen and passage of the main entrance located on second floor of old rally building situated on Plot bearing Survey No.15, Survey Sheet RY-4, in the Railway Quarters. It was alleged that the petitioners have without any authority removed the partition wall existing between the two rooms and thereby converted it into one hall unauthorizedly. They have further demolished bath rooms and constructed two rooms, wash room toilet, by unauthorizedly occupying the open space. Consequently notice dated 9th June, 1994, was addressed to the petitioner to vacate the premises on account of such illegal construction which has de-shaped the premises and has also impaired the value and utility of the building.
3. ' The petitioners filed their written statement and denied to have carried out any alteration or additions in the rented premises without the consent of the respondents. It was asserted that the building in which the rented premises is situated is very old one and has not been maintained properly, heavy rains have caused damaged to the roof top and ceiling of the rented premises which resulted in water leakage into the rented premises damaging and destroying valuable electronic and electrical equipments. Consequently, the petitioners/tenant sent telex dated 13th January, 1994, seeking necessary permission to repair the damaged roof top. However, raising of unauthorized construction was denied. It was admitted that the existing wash rooms have been upgraded and necessary arrangements were made for protecting generator lying in the open. It was further admitted that due to water leakage and short circuit of electricity two partitions walls were badly damaged which could have caused injury or danger to the lives of the persons working in the rented premises, consequently the said partition walls were removed in accordance with clause (vii) of the Tenancy Agreement whereby the petitioner was bound to keep the demise premises in good and clean condition and complete repair in all respects which act does not diminish or impair the value or utility of the rented premises. On the contrary it was pleaded that the removal of two dangerous partition walls and necessary repair has increased the value of the rented premises.
4. ' The Assistant Manger (Estate) filed his affidavit-in-evidence on behalf of the respondent/landlord who was cross-examined by the Advocate of the petitioner! Tenant. On the other hand one of the directors for the petitioners/tenant filed his affidavit-in-evidence and was cross-examined by the Advocate of the respondent/landlord. The learned Rent Controller after hearing the arguments framed only one point for determination viz. "whether the opponents have unauthorizedly made additions, alteration and impaired the value and utility of the building and removed the partition walls existing between the two rooms and thereby converted into one hall". The learned Rent Controller upon appreciating the evidence led by the parties decided the point in affirmative and directed the petitioners/ tenant to vacate the premises and hand over its possession to the Respondent/landlord within 60 days.
5. ' Being aggrieved with this order the petitioners/tenant filed an appeal which was decided by the Vth Additional District Judge on 13-1-2005, by impugned order whereby the order of the Rent Controller was set aside and the case was remanded back to the Rent Controller for deciding the case afresh after recording evidence of any expert on the point of addition and alteration which has impaired the value and utility of the premises, and for this purpose both the parties were directed to appear before the Rent Controller on 2nd February, 2005, directing the Rent Controller to decide the matter within two months. It appears that in consequence to the direction of the appellate Court both the parties appeared before the Rent Controller who directed the filing of the additional affidavit-in-evidence by 18-2-2005, as such the premises was got inspected by the respondent through the Engineers of NESPAK and just one day before filing of their affidavit-in- evidence the petitioner filed this petition.
6. ' The learned counsel for the petitioner has argued that 'the order impugned is illegal and is liable to the set aside. It has further been argued that the appellate Court has failed to appreciate that there was nothing on record that the repair or removal of partition wall has impaired the value and utility of the rented premises, therefore, the appeal should have been allowed on the basis of material available. On the other hand the learned counsel for the respondent has argued that in fact it should have been the respondent who should have impugned the order of the appellate Court and not the petitioners/ tenant as the appellate order has set aside the order of Rent Controller which was in their favour, she further contended that the present petition has been filed malafidely only to prolong the proceedings, as after passing of the order impugned both the parties appeared before the Rent Controller on 2-2-2005, who in terms of the impugned judgment adjourned the case to 18-2-2005 for filing affidavit-in-evidence of any expert, the respondents thereafter have got the rented premises inspected from the Engineers of NESPAK which was not objected to by the petitioners. However, since the petitioner knew that the additions alterations carried out by them have impaired the value and utility of rented premises as such to prolong the proceedings have filed this petition. It was further stated that the respondents on 18-2-2005 have filed additional affidavits-in-evidence to prove that the addition and alterations carried out by the petitioner/ tenant has impaired the value and utility of the premises before the Rent Controller.
7. ' I have given due consideration to the arguments advanced of the bar and I have perused the record before me. The only point raised by the learned counsel for the petitioner is that the appellate Court in the circumstances, was not justified in directing the recordal of additional evidence and since there was no evidence on record to show that the renovations carried out by the petitioners impaired the value and utility of the demise premises and therefore, the order of the appellate Court is liable to be set aside.
8. ' I am afraid that the proposition as propounded by the learned counsel is virtually incorrect as the record reflects that in paras.5 and 6 of the affidavit-in-evidence filed on behalf of the respondent/landlord the additions and alterations were specified in detail and it was further stated on oath that such additions and alterations have not only de-shaped the rented premises but have also impaired the value and utility of the rented premises this portion of the deposition has gone unchallenged. However, without commenting upon the effect of this position the remand of the case to record additional evidence by the appellate Court in fact was blessing in the appellate Court shall report compliance disguise for the petitioner/tenant. to Member, Inspection Team, High Court.
9. ' The petitioner in prayer clause has prayed for the setting aside of the impugned order without realizing its effect as if this order is set aside it would amount to revive the order of the Rent Controller which has directed the petitioner to hand over the vacant possession of the rented premised to the respondents. I am fully conscious of the fact that this Court has ample powers to mould the relief in appropriate cases to advance the cause of justice as such the prayer clause would not come in the way while deciding this petition. It is not disputed that the appellate Court in cases where the material on record is not sufficient for the purposes of arriving at a just and proper conclusion under subsection (3) of the section 21 of the Sindh Rented Premises Ordinance, 1979 is empowered to either hold further inquiry itself in an appeal or to remit the case to the Rent Controller for further inquiry. However, if the appellate Court comes to the conclusion that the material on record is not sufficient for the purposes of arriving at a just and proper conclusion it can only direct the Rent Controller to hold further inquiry and to submit to the appellate Court the additional material as a result of further inquiry for deciding the appeal in accordance with law.
10. ' In the circumstances the order of the appellate Court directing the Rent Controller to decide the case afresh after recording additional evidence is modified to an extent that after recording necessary evidence as directed by the appellate Court the Rent Controller shall place the same before the appellate Court for its decision in accordance with law. The entire exercise shall be completed within three months and