' AZIZULLAH. M. MEMON, J.--Respondent No,2 is admittedly owner of the building known as Old Rally Building situated on plot bearing Survey No,15, Survey Sheet No,RY-4 in the Railway Quarters, Talpur Road, Karachi and the opponents/petitioners are admittedly the tenants in respect of the premises measuring 2356 Sq. Ft. Consisting of two rooms with attached bath rooms, one Hall, corridor/passage, kitchen and passage of main entrance located on the second floor of the said building as per the terms and conditions of registered lease deed at the rate of Rs .7496.66 per month; the terms and conditions of the lease deed/tenancy agreement arc as under:- "(7) The Lessee hereby covenants with the Lessor to do and perform the following during the continuance of lease:
(i) To pay regularly all charges in respect of electricity energy and gas consumed by the Lessee.
(ii) To maintain and to keep the interior of the premises including doors, windows, fixtures and electric and sanitary system in good and tenantable repair and conditions natural wear excepted.
(iii) To use the demised premises for the sole purpose of offices and not to' use the same for residential purpose or for storing such commodities as are ' termed "hazardous or obnoxious" under the provision of Insurance Act or for accommodating any article which shall be heavier than 50 Lbs. Per square feet of the floor area occupied by the same.
(iv) To pay Rs,50.00 p.m. Towards water and conservancy charges to LESSOR.
(v) To pay 5% of the monthly rent along with the rent towards the betterment tax as has been imposed by the Government of Sindh on Commercial building or at the rate that may be imposed or levied by Government hereinafter;
(vi) Not to sublet or assign or part with the possession of the demised premises;
(vii) To keep the demised premises in good and clean condition and complete repair in all respects to be used for the purpose of offices;
(viii) To maintain in fit and proper condition all electric fittings fixtures and other installations in the demised premises;
(ix) To yield up at the expiration of lease the premises and the Lessor's fixtures and fittings in good and proper repair and condition, normal wear and tear excepted and to put the Lessor in vacant possession thereof;
(x) Not to hold the Lessor liable for any loss, damage or destruction of the demised premises due to act of war, whether declared or not or to rain, fire tempest, cyclones, collapse of building of any other thing or calamity or for any injury resulting therefrom to the servants or employees of the Lessee.
3. The respondent filed rent case bearing No,520/1955 before IVth Rent Controller, Karachi South against the petitioners for their ejectment on the grounds that they made additions, alterations in the premises viz. Removed the partition walls existing between the two rooms and thereby converted the same into one Hall unauthorisedly, demolished the bath rooms unauthorisedly and constructed two rooms, wash rooms, toilet by unauthorisedly occupying the open space thereby de-shaping the said premises and impaired the value and utility thereof materially, contrary to the plan of the then Municipal Corporation/Karachi Building Control Authority Building Rules and also the above-quoted terms and conditions of the tenancy agreement.
4. The petitioner/tenants denied the said allegations in the written statement filed by them and asserted that the said building being very old and having not been properly maintained, therefore its roof top and ceiling got damaged due to heavy rains and water percolated inside the premises whereby the valuable electronic and electrical equipments got destroyed and, therefore, the petitioners "spent million of rupees to make it decent and presentable model offices necessarily required for a company having business in the international shipping world" and thereby the value and utility of the building got enhanced materially; further necessary repairs were needed and, therefore, washrooms were upgraded to facilitate the requirements of the female employees of the petitioners and also necessary arrangement needed to be made for protection of the generators which were lying in the open; the partition walls had to be removed by the petitioners for the reason that the same got damaged very badly due to water leakage and short circuit of electricity, in order to save human lives.
5. Learned Rent Controller framed following issues
(1) Whether the opponents have unauthorisedly made addition, alteration and impaired the value and utility of the building and removed the partition walls existing between the two rooms and thereby converted one hall?
(2) What should the order be?
6. Parties produced their respective evidence and then the Rent Controller allowed the ejectment application vide order dated 26-5-2004, against which the petitioners filed. Rent Appeal bearing No,75 of 2004 which was heard by Vth Additional District Judge, Karachi South who set aside the said eviction order and remanded the case to the Rent Controller to decide the dispute between the parties afresh, after recording the evidence of any expert on the point of additions and alterations which might have affected the value and utility of the premises materially.
7. The petitioners filed Constitutional Petition bearing No,S-100 of 2005 in this Court against the said appellate judgment which was heard and decided vide order dated 24th January, 2006 whereby the order of the Additional District Judge was modified to the extent that after recording the said additional evidence, the Appellate' Court should hear the parties afresh and decide the appeal accordingly.
8. Hence the learned A.D.J., Karachi South vide judgment dated 25-4-2006 recorded the finding that the. Applicant/ respondent No,2 proved that the additions and alterations in the rented premises have materially diminished the value and utility of the rented premises and thereby the petitioners stand evicted from the same. Hence the present constitutional petition is filed by the petitioners/tenants.
9. Learned counsel for the petitioners argued that the case was remanded for the purpose of recording evidence of the expert witness to prove the details of the damage which might have been caused to the building structure in the disputed premises but admittedly no such expert witness was produced and instead, the formal evidence of a witness was recorded who gave the measurements of the premises without stating any loss which might have been materially caused to the building by the tenants.
10. Learned counsel for the respondent has argued that the terms and conditions of the tenancy agreement state that the tenant shall not carry out any change in the building structure without permission of the landlord, and if any necessity arose for the purpose of carrying out any material repairs in the premises and/or to carry out the alterations therein, had the tenants proved such a genuine necessity, the respondents/ landlord would have definitely granted such a permission; even otherwise they are bound by law to accord the same but no such request was made to the landlord directly nor any such application was filed before the Rent Controller as, provided under section 12 of the Sindh Rented Premises Ordinance, 1979; thus, the tenants/petitioners have intentionally and deliberately committed breach of the above quoted terms and conditions of the tenancy agreement and thereby made themselves liable to be ejected from the disputed tenement.
11. It. Is not necessary that the acts of the tenant must have conclusively diminished the value of utility of the premises but it would be within the mischief of section 15(2)(iii)(c)(iv) of the Sindh Rented Premises Ordinance if such acts are likely to do so which have a tendency to the same effect of materially diminishing the value or utility of the premises; any material structural alterations which tend to damage the nature and character of the premises would come within the mischief of the said provisions of the Ordinance.
12. In Al-Noor Education Society v. K. Mushtaq Illahi (1993 CLC 1798) following observations were recorded:- ' "Herein what first meets the eye is the designed use of the word 'likely' in the aforesaid provision.
The statute has not used peremptory or categoric language. Therefore, it is not that the impugned acts must have conclusively diminished the value or utility of the premises, but it would be within the mischief of the statute if they are likely to do so. A closer look at the provision would, therefore, indicate that it is titled in favour of the landlord because even if the acts may not conclusively impair the value or utility but merely have a tendency to the same effect they may well come within the wider net of the language employed by the legislature.
Equally well-settled it is that the words 'value' or 'utility' in the aforesaid provision have to be read disjunctively. It is not that the impugned act must impair both the value and utility of the building but it suffices if the material impairment is either of the financial value of the premises or similarly of the utility for the purposes of the landlord if he is able to establish either of the two requirements.
' It is with the aforesaid approach towards section 15(2) (iv) of the Ordinance that one must notice that broadly there is consensus of judicial opinion in this particular context and also in the context of corresponding provisions of other rent "statutes that any material structure alterations which tend to change the nature and character of the premises would come within the mischief of the statute. The use of the word 'material' in the provision only effectuates the hallowed rule of law that it does not take account of trifles and consequently both the impairing of this value or its utility must be of a substantial and not inconsequential nature.
' A perusal of Architect's letter (Annexure E) to the affidavit-in-evidence of the respondent would show that the appellant has added a room in front by covering the verandah. The two kitchens are being used as normal rooms, the floor and small cabinets and other fitting and fixtures are missing.
He has added two rooms by covering the rear compulsory open space.
' A verandah has its own utility. It provides light and air to the rooms adjoining it. A building with a verandah is admittedly more useful than the one without a verandah. Therefore, there can hardly be any doubt that the inclusion of verandah into the building constitutes structural alterations and had impaired materially the utility of premises. Lower lawn has been converted into a cemented floor which is serving as basket-ball field also constitutes alterations. So, the aforesaid act of the appellant undoubtedly fell within the ambit of section 15(2)(iv) of the Ordinance.
The facts even mentioned above, do not constitute minor changes. Drastic changes in the structure of the premises have been made. The verandah have been completely merged into a room by removal of fixtures and fittings from the two kitchens have completely converted into rooms addition of two rooms and removal of lawn by serving it as basket ball ground. The utility and the value of the premises in dispute has been impaired.
' From other angle, the alteration should be of a structural nature and not merely of decorative nature. Fixing a door to a room of to a garage by a tenant may be amount to material alteration within the meaning of section 15(2)(iv) of the Ordinance but the same will not be the case when an open verandah is converted into a closed room by erecting wall and by fixing door in the open portion. The character and shape of the premises in the former case remain unchallenged while in the latter case, the form and structure of he premises is changed. Similarly by adding two rooms in compulsory open space the form and structure of the' premises is changed. The removal of lawn by flooring the ground for basket-ball ground the form of the premises changed. Mr. Pishori urged that the diminishing of the light and air to the rooms by enclosing of the verandah concerns the tenant alone and not the landlord. Similarly his submission is that the conversion of two kitchens into rooms, lawns into basket-ball ground and constructing two rooms, on the compulsory open space concern the tenant and not the landlord. These submissions cannot possibly be supported on a closer anal)sis. I am of the view that the impairment of the utility of the premises and the adverse results of the acts of the tenant have relevance to the requirements of the owner of the premises and not to those of the tenant who would himself make the alterations. The submissions seen to rest on the assumption that the tenant is to remain in perpetual possession and, therefore, the diminishing of the light and air to the rooms is his concerns only. These submissions can hardly be justified because the ultimate diminishing of the value may, either be when the landlord resumes possession for his need or may be compelled to transfer the property (even whilst still in the occupation, of the tenant) despite the impairment of its value to the new owner.
' Again the submission that these material structural alterations cannot be said to impair the value or utility of the premises because the doors and the walls can be easily removed, the lawn can be restored to their original shape, the two rooms constructed in the compulsory space and the two kitchens can be restored to their shape as provided in the lease is also not sustainable on a closer analysis. Carried to their logical extent, it would mean that only alteration, however material, which can be restored to its state would never come within the ambit of the lease or the Ordinance. With the present day construction technology one can hardly imagine any material structural alterations which cannot be either reserved or restored. Again this submission suffers from the erroneous assumption that the premises would be necessarily vacated and the tenant would then either be willing to remove the material alterations and restore the premises to its original state or that the landlord would always be in a position to do so. Under the present Ordinance, it is not always that the landlord can secure possession and being in the enviable position of either removing the unauthorized structural, changes and alterations and thus restoring the rented premises to its original state. It is aptly argued by Mr. Mansoor-ul- Arifeeen, learned counsel for the respondent that a landlord may well be compelled to transfer the rented premises whilst still in the occupation of the tenant and the impairment of its utility because of such material changes may gravely affect its value in the market. Therefore, the hypothetical consideration that either the landlord may be able to secure possession and restore the rented premises into its original state or the tenant may well be willing to do so under the terms of lease appears to be rather irrelevant to the issues. It is manifest that the statute visualizes such acts as and they are committed .During the occupancy of the rented premises by the tenant which can give rise to the remedy of ej ectment..
The matter was, therefore, to be considered in present and not in future.
' One of the grounds of eviction of a tenant from premises is' provided in section 15(2)(iii)(c) of the Ordinance and 'that is for breach of or infringing the conditions on which the premises was let out.
' The argument of Mr. Mansoor-ul- Arfin in this regard was that even assuming, for the sake of argument that the appellant/tenant cannot be held to be liable for eviction under such acts as are likely to impair the material value or meaning of subclause (c) mentioned above. The argument of Mr. Pishori in this regard was that the breach, in this regard, which, of course, was undisputed could not be held to be a breach of the conditions of lease but only a breach of the stipulations thereof.. I, however, fail to appreciate this argument of making a distinction between the conditions "and stipulations" of the terms of lease. There may be then a distinction between these two but in my view there being an express covenant in lease amount to the breach of conditions of lease particularly clause (7) and, therefore, on this account also the tenant appellant is liable to be evicted.
' For these propositions, it is not necessary to cite decisions, although I have been taken through case-law by counsel on both sides.
' No other point remains for consideration and for the reasons discussed above, I do not find any merit in this appeal and would maintain the order for eviction of the tenant appellant passed by the learned Controller but for reasons inter alia different from those given by him. I would accordingly direct the appellant to give the vacant possession of the rented premises in question on or before 31-7-1992 failing which the respondent would be entitled to' recover possession without any notice to the appellant. On the facts and in the circumstances of the case, I shall make no order as to costs.
13. Admittedly, the petitioners/tenants did not make any application to the learned Rent Controller to seek permission to carry out the repairs/additions/ alterations which admittedly have been carried out by them and thereby they have proved the infringement of the terms and conditions of the tenancy agreement to the effect that the tenants were not authorized to carry out the same without prior permission of he landlord.
14. In the circumstances, there is no reason to interfere in the concurrent findings of the learned two Courts below thereby directing eviction of the petitioners from the disputed premises; therefore vide a short order dated 14-12-2006 the present constitutional petition was dismissed in limine with the pending applications. Above are the reasons for the same.