1. NADEEM AZHAR SIDDIQI, By filing of this petition , the petitioner has challenged the judgment dated 16-8-2006 passed by the learned 1st Rent Controller, Malir in Rent 'Case No. 11 of 2004, by which judgment the application for ejectment of the petitioner from the rented premises filed by the respondent No. 1 was allowed and judgment dated 3-2-2007 passed by the learned District Judge, Malir, Karachi in First Rent Appeal No. 10 of 2006, by which the order of the learned Rent Controller was upheld.
2. The facts arising for the disposal of this petition is that the respondent No. 1 is the landlord of Shop No 15 situated at Siraj Shopping Centre, Quaidabad Chowk, Bin Qasim Town, Karachi, which was let out to the petitioner alongwith Shops Nos. 13 and 14 in the year 1991 at the rate of Rs. 150/- per month for each shop on payment of huge amount of pugree.
3. The respondent No.1 has filed ejectment application against the petitioner on the ground that the petitioner without permission of the respondent No. 1 demolished the wall of Shop No. 15, which was fixed by the shutter (other side). The petitioner also removed the shutter of Shop No. 15 and extended (additional land) and converted into one big shop and in this manner has impaired the value of the Shop No. 15.
4. The petitioner has filed his written-statement admitting the tenancy and the rate of rent, but denied that he has in any way impaired the value of the shops. The petitioner has further submitted in his written-statement that the wall was constructed in consultation with the respondent No. 1. K.ES,C. Officials and the Councilor for the purpose of affixing of the electric meters.
5. He further submitted that due to the construction of wall Shop No. 15 has fully hidden, and therefore, the team of K.E.S.C. Alongwith representative of the market have suggested to expand the Shop No. 15 upto the level of other shops of the market, so that the same shop give good look.
6. The respondent No. 1 has filed his affidavit-inevidence and the affidavit-in-evidence of Azmatullah.
7. They were cross-examined by the learned counsel for the petitioner. The petitioner has filed his affidavit-in-evidence and affidavit-in-evidence of his witness Abdul Majeed and were cross- examined by the learned counsel for the respondent No. 1.
8. The learned Rent Controller has framed the following issues/points:---
(1) Whether the opponent has altered and made addition it, the shop without consent of the applicant?
(2) What should the order be?
9. After hearing the parties the learned Rent Controller has allowed the ejectment application vide his judgment dated 16-8-2006, which was upheld by the learned District Judge in appeal vide his judgment dated 3-2-2007.
10. The learned counsel for the petitioner submits that the judgments of both the Courts are against the evidence available on record. He further submits that both the judgments are against the law, as the respondent No. 1 has failed to show in what manner the value of the shop has been impaired. He further submits that by extending the area of the shop, the value of the shop has been increased and the respondent No. 1 in lust of more money wants to eject the petitioner.
11. The learned counsel for the respondent No. 1 submits that the order of the Appellate Court had attained finality and the Constitutional petition cannot be used a Second Appeal and the Court in writ jurisdiction cannot interfere into the concurrent findings of the Courts below. He further submits that to invoke the Constitutional jurisdiction, petitioner has to show some jurisdictional defect in the judgments. He further submits that in the Constitutional jurisdiction, the Court cannot reappraise the evidence and cannot interfere with the judgments on the ground that by reappraising the evidence other view is possible. Learned counsel for he respondent No. 1' has relied upon (1) Waqas v. 1st Additional District Judge (South) (2004 YLR 3278) and (2) Muhammad Hassan. Khan v.
12. Muhammad Azam Khan (1979 SCM R 617).
13. I have heard the learned counsel for the parties and perused the record of this case made available before me.
14. The ground taken by the respondent No. 1 is impairing the value of Shop No. 15 on the allegation that the petitioner has constructed a wall and extended the area of the shop. Section 15(2)(iv) of the Sindh Rented Premises Ordinance, 1979, reads as "The tenant has committed such acts as are likely to impair the material value of utility of the demises."
15. The word "impair" has been defined in Chambers 21st Century Dictionary as under:- "To damage or weaken something, especially in terms of its quality or strength."
16. The word "impair" has also been defined in Black's Law Dictionary in its Sixth Edition as under:- "To weaken, to make worse, to lessen in power, diminish, or relax, or otherwise affect in an injurious manner. To diminish in quality, value, excellence or strength."
17. From the above .Meaning of the word "impair", it is clear that only alteration or addition could not be considered such an act which made the tenant liable to be ejected unless, same impairs materially the value or utility of the rented premises. It cannot be laid as a rule of law that every alteration and addition would amount to impairing the value and utility of the rented premises. The landlord by convincing evidence has to prove the actual loss caused to the tenement by way of addition one alteration done by the tenant., No doubt in para 3 of the written-statement, petitioner has admitted that the shop was expanded to the level of other shops of the market, but this admission alone is not enough to rule That by expanding the area of the shop, petitioner has impaired the value and utility of the premises. The evidence of the respondent No. 1 is silent with regard to the actual loss, caused to the tenement. The respondent No: 1 in his cross-examination has admitted that he has taken pugree/good-will for the construction of 16 shops and electric meters were installed outside the shops and the K.E.S.C. Got his permission for installation of meters. He, however, denied by saying that he did not give permission to install the meters at the premises. He also admits that he has not moved any application against K.E.S.C.
18. To prove the allegation of impairing the value and utility onus is one the landlord, for which, oral evidence of the landlord is not sufficient unless some engineer or expert is examined. Mere unauthorized construction of wall and extending the area of shop by the tenant carries no consequence unless it is proved that due to unauthorized construction of wall and extending the area of shop the value . Of the tenement is decreased. Raising of wall and extending the area of shop had increased value of the shop rather than reduced its value. In such a case, landlord cannot seek eviction of the tenant on that ground unless the landlord has proved the actual loss caused to the tenement and its value and utility.
19. As far as interference in the writ jurisdiction is concerned, the High Court cannot interfere unless, order impugned was found to be wholly perverse, arbitrary, based on misreading of evidence and having resulted in absolute miscarriage of justice. The High Court in writ jurisdiction cannot interfere merely on the ground that on the basis of evidence adduced before the Rent Controller another view of the matter, contrary to one taken by Courts below, was also possible. In this matter, no evidence has been produced by the landlord to show in what manner the value of the shop was decreased. The learned Rent Controller has also not given any findings in this regard. The judgment of the Appellate Court is also silent in this regard. It appears that both the Courts below have only taken into consideration the admission of the petitioner that the area of the shop was extended.
20. The Appellate court in its judgment has stated that the petitioner by removing the shutter and closing the gap with hardboard has blocked the entrance of light and air in the Shop No. 15, which was rented out to him with two doors' shutters, which clearly reflects that the value and utility of the shop must have impaired. The Appellate Court further observed .That he fails to understand as to how tenant/petitioner is entitle to acquired the space iyil iy in front of the shop and utilized for his personal benefit and use without consent of landlord or giving him any compensation.
21. This is not the case of the respondent No. 1, the observation was not based on any evidence. The learned Appellate Court has further observed as under:--- "The upshot of my above discussion is that additions, alterations, creating space for two small shops obstructing light and air in the shop in question, replacing shutter with hardboard are enough to hold that appellant has committed such acts which have impaired materially value and utility of the shop in question. The admission of appellant by itself and site notes are sufficient to decide this point in favour of respondent. The findings given by learned Rent Controller on this point are also correct and not open to any exception."
22. The judgment of the Appellate Court is based on the above observation, which are not part of, the evidence, and therefore, judgment of the Appellate Court is against the evidence available on the record. The learned Rent Controller has shifted the burden upon the petitioner and have held that , for want of documentary proof and independent evidence he has failed to rebut the allegations of the respondent No. 1. The learned Rent Controller has wrongly shifted the burden upon the petitioner. Unless the respondent No 1 proved that by extending the area of the shop value and utility of the shop is impaired, no burden can be shifted upon the petitioner. The learned Rent Controller by wrongly shifting the burden has acted in excess of jurisdiction vested under it.