' FAISAL ARAB, J.---The petitioner is owner of the property bearing Plot No,6/1, SB-1, Preedy Street, Sadar, Karachi. In 1964 petitioner's father let out ground floor portion of this property to the father of the respondents where he started the business of_restaurant in the name and style of "Sartaj Restaurant". Prior to the present round of litigation, there was an earlier round when in 1966 the father of the petitioner filed eviction application on the ground that six different persons have opened cabins and shops in the rented premises who are subtenants. When the matter in the earlier proceedings was pending before this Court in second appeal under the then applicable law, the parties compromised. In the compromise application, dated 28-2-1982 following terms were settled between the parties which are reproduced as follows:-- "Application under Order XXIII Rule 3, C.P.C.
' It is prayed on behalf of the parties that this Honourable Court may be pleased to dispose of this appeal on the following terms:--
(1) That the appellant has agreed and allowed the respondent to continue as tenant in respect of hotel premises along with three shops constructed in the said hotel i.e,, one Pan Shop measuring about 2' 2" x 6' 7" towards Preedy street and other two sweet shops towards Napier Street measuring 2' 5" x 7' 4" and 5' 6" x 6' 5" and the respondent has agreed not to construct any other shop or wall fixture in the said hotel.
(2) That the respondent shall not make any addition or alteration in the Hotel premises without the written permission of the appellant.
(3) That Rent Case No,2998 of 1967, filed by the appellant against the respondent, in the Court of Rent Controller, Karachi, shall stand withdrawn, and the appellant shall make application to that effect in the said case.
2. Then in the year, 1990 the present round of litigation started with the filing of an eviction application against respondents Nos. 1 to 9 on the following grounds:-
(a) Require the premises for the personal need of the petitioner, as he is jobless;
(b) Without written permission of the petitioner the respondents Nos. 1 to 9 have made additions and alternations in the premises, reduced the plinth level by one foot, damaged beams by digging up holes therein thereby impaired its value and utility;
(c) Changed the constitution of firm "Sartaj Restaurant" by inducting new partners; and,
(d) Violated the conditions mentioned in Paragraph-1 of the compromise application as the respondents were allowed to have only three shops outside the restaurant whereas now there are six shops and that too have been rented out to sub-tenants.
3. The Rent Controller granted eviction on all the grounds. The respondents appealed. The appellate Court reversed the findings of the Rent Controller on all the grounds and dismissed the eviction application. The petitioner has challenged the appellate Court's decision in the present constitution petition.
4. The learned counsel for the petitioner contended that the petitioner in his eviction application has clearly stated that he is ioblcss and has no other place to establish his own business, therefore, the appellate Court ought to have maintained the eviction order on the ground of personal need. Reliance was placed on the cases reported in (1) 1998 SCMR 2119 (S.M. Nooruddin and 9 others v. Saga Printers) (2) 1988 SCMR 819 (Qamruddin through his Legal Heirs v. Hakim Mahmood Khan) (3) 2001 SCMR 1197 (Iqbal Book Depot and others v. Khatib Ahmed and 6 others) (4) 1994 MLD 487 (Saghiruddin v. Muhammad Qassim and 6 others) (5) 1996 CLC 381 (Muhammad Saleem Qureshi v. M. Mohsin Butt). In reply to the arguments on personal use, learned counsel for the respondents Nos. 1 to 9 has pointed out that during pendency of the rent proceedings, the petitioner in the same building came in possession of two vacant shops and without first establishing the fact that these two shops in his occupation were neither suitable nor sufficient of his needs, the petitioner could not have been granted eviction.
5. It is now well-settled that without giving any explanation as to why the premises already in possession of the landlord were not sufficient or suitable to meet his personal requirement, the personal need cannot be regarded as bona fide. In view of this legal position and the fact that the petitioner came in possession of 2 shops during pendency of proceedings, the case-law relied upon by the learned counsel is of no help to him. It was rightly held that no case for personal need is made out.
6. Learned counsel for the petitioner next contended that the respondent Nos. 1 to 9 without permission of the petitioner have lowered the plinth level of the premises in question by one foot thereby damaged the beams that are supporting upper floors and also dug up holes therein which act further impaired the material value and, utility of the premises. He next submitted that in his defence, the respondents Nos. 1 to 9 did not rebut this ground as taken in the eviction application by the petitioner and therefore, since plea of damage to the plinth and the beams went unchallenged, the appellate Court committed error in not granting eviction on the ground of illipairment of value and utility of premises. In support of this argument, reliance was placed on the cases reported in (1) 1999 SCMR 54 (Messrs Organon Pakistan (Pvt.) Ltd. v. Rafat Ali Khan) (2) 1988 SCMR 689 (Khalifa Fateh Muhammad v. Ahmad Nasir Khan) and (3) 1987 MLD 888 (Rasheed Alam v. Ewaz Yar Khan). In response to this argument, learned counsel for respondent Nos. 1 to 9 contended that in so far as the ground of additions and alternations is concerned, all that the respondents Nos. 1 to 9 have done is that a new mosaic floor was laid as the previous one was very old and had deteriorated after a long use of 26 years of tenancy. He submitted that laying of a new floor in no way impaired the value and utility of the premises but on the contrary it enhanced its value. He submitted that eviction could only be justified where there is diminution in the material value and utility of a premises and not otherwise. He further contended that the burden to prove that respondent Nos. 1 to 9 have impaired the value and validity of the premises solely laid upon the petitioner who through cogent evidence ought to have proved the same. He submitted that as the petitioner did not even attempt to get the premises inspected by an architect, the petitioner failed to establish such ground. In support of this argument learned counsel for the respondents Nos. 1 to 9 relied upon the cases reported as 1989 CLC 599, 1993 CLC 2380, 1993 MLD 219 and 1982 SCMR 8.
7. Where a tenant infringes any term and condition on which the premises is let out to him then section 15(2)(iii)(c) of the Sindh Premises Ordinance, 1979 entitles the landlord to seek eviction of his tenahl. Similarly here the tenant commits such acts that are likely to impair the material value or utility of the premises, then section 15(2)(iv) of the said Ordinance entitles the landlord to seek eviction. Under clause (2) of the terms of the settlement , on the basis of which the matter was compromised in the first round of litigation it was stipulated that the respondent shall not make any additions or alternations without the written permission of the applicant. What is meant by additions is to add a new structure to an existing structure that was originally rented out. The nature of any addition, whether temporary or permanent would be regarded as additions. Then what is meant by alternation is that a portion of the existing structure is so altered that it wholly or partially changes its original shape or utilization. The additions and alterations are only permissible if tenant obtains prior written permission from his landlord. However, where any repair and renovation work is carried out with the object of putting the rented premises to only a more comfortable or effective utilization and such repairs and renovations by no means add to or alter the original structure which was handed over at the time of creation of tenancy there is also no likelihood that repairs a renovations would impair the material value or utility of the rented premises then the landlord does not become entitled to seek eviction of his tenant on such account. This can be explained through following examples. Where a tenant has a shop on rent and he adds a mezzanine floor to it or where a tenant converts a kitchen into a dining room or 4.
Servants quarter into a kitchen or constructs a shed on an open space or convert one room into two or two into one without taking prior written permission of the landlord then he is making additions and alternation that would make him liable or eviction under section 15(2)(iii)(c) of the Sindh Rented Premises Ordinance as such changes would be an infringement of the terms and conditions on which the premises was let out. Similar will be the case where in a residential house there is an open space and the tenant constructs a new room in that space or constructs a room on the roof top without seeking prior written permission of the landlord, this would also amount to infringing the conditions on which the premises was let out. However, where there is a cement floor, which on account of its use over the years has been deteriorated and the same is repaired by the tenant in a way that a new mosaic or tiled floor is laid, then such an action would not amount to making additions or alterations. It would also not amount to infringement of the terms and conditions on which the premises was let out. This act of the tenant would fall within the ambit of repairs and renovations works only not liable or eviction. Unless while carrying out repairs and renovations, such acts are committed which are likely to diminish the material value or utility of the premises, eviction cannot be granted. Furthermore, any likelihood of impairment in the value and utility of the premises is to be established through evidence and burden to establish this solely rests with the landlord. The appellate Court having found no evidence with regard to impairment in the value and utility of the premises and no expert/ technical witness was examined by the petitioner, it rightly reversed the findings of the Rent Controller on such ground. Hence no addition or alteration has been established so as to warrant action of respondents on such a ground.
8. Learned counsel for the petitioner next contended that originally the business of the restaurant was being run by the father of the respondents Nos. 1 to 9 but subsequently a partnership firm in the name and style of "Sartaj Restaurant" was formed and respondents Nos. 1 to 9 were inducted as tenants and this by itself amounts to subletting and making them liable for eviction. In support of this argument learned counsel for the petitioner placed reliance on the cases reported as (1) PLD 1974 SC 351 Manek J. Mobed and another v. Shah Behram and others (2) 1994 SCMR 1507 Muhammad Subhan and another v. Mst. Bilquis Begum through Legal heirs and 3 others (3) 2000 CLC 997 Sultana Jafery v. Muhammad Ali Abidi through LRs, (4) PLD 1982 SC 79 Messrs.' Premier Mercantile Service and another v. S.M. Younus and 2 others (5) PLD 2005 Karachi 30 Muhammad Iqbal and another v. Mst. Saba and others and (6) PLD 1996 Karachi 109 Muhammad Shafi v. State Life Insurance Corporation of Pakistan. In response to this argument, learned counsel for the respondent argued that the firm was there since inception which was running its business of restaurant in the name and style of "Sartaj Restaurant" and this firm was comprised of the father, the original tenant and his sons and after the death of the father, his five sons continued to run the business in the name of the said firm. He submitted that there was no sole proprietorship which was converted into a firm but the firm was there since its inception and this is evident from the title cover of the eviction application that was filed by the father of the petitioner in the first round of litigation that started way back in 1966. On the title cover of earlier eviction application tenant is shown to be Messrs Sartaj Restaurant and is described as a firm running the business of hotel and restaurant. He further contended that after the death of the father, his sons, as successors-in- interest and partners of the firm, continued with the business of firm and no stranger at any stage was inducted in the partnership. Consideration the argument of the respondents Nos. 1 to 9, which are duly evinced from the title cover of the rent case filed in the year, 1966 it is evident that the business of the firm "Sartaj Restaurant" was being run by a firm wherein father and sons were partners and after the death of the father only his sons are continuing with the business of "Sartaj Restaurant". As it has not been established that any outsider has been inducted in the partnership business of "Sartaj Restaurant", it cannot be said that there was any act of subletting committed on such account. It cannot be regarded as subletting just because after the death of the father, his sons as his successors and co-partners continued with the business of the firm.
9. With regard to the other aspect of the plea of subletting i.e, renting out portions of the premises to strangers, learned counsel for the petitioner contended that in the earlier round of litigation which ended in a compromise it was clearly stated in paragraph (1) of the compromise application that apart from the restaurant there are only three shops i.e, one pan shop and two sweet meat shops that are being run by the tenant along with the business of restaurant and as a term of settlement the tenant had agreed not to construct any other shop or wall fixture but the respondents Nos. 1 to 9 in blatant disregard of such stipulation have set up three additional shops and sublet them to strangers, In this regard he also drew the attention of this Court to the cross- examination of the respondent No,1 where he has admitted that rent is being collected by the respondents from the persons who are running pan and sweet meat shops. After this admission, he submitted that eviction on the ground of subletting ought to have been granted by the Rent Controller. In reply, learned counsel for the respondents Nos. 1 to 9 contended that there were in fact, six shops as evident from paragraphs 2 and 3 of the eviction application which was filed in the first round of litigation and thereafter there was a compromise and three outlets mentioned in compromise were in fact established in six shops and the petitioner is confusing these three outlets with six shops in order to seek eviction on a baseless ground of subletting.
10. It has been admitted by respondent No,1 in his cross-examination that two occupants of shops are paying rent. He however did not specify the amount as according to him the rent was being collected by his brother. This clearly proves that strangers who are running business in part of the rented premises are paying rent which is clear admission of creation of sub-tenancies. If at all subletting existed prior to settlement of compromise in the first round an the petitioner's father at the time of reaching compromise intended to condone it, then this should have been stated so in the compromise. This is not so. The whole compromise proceeds on the assumption that the rented premises, in it's entirely would be exclusively under the use and occupation of the tenant. Tn right of any stranger or a sub-tenant was not recognized in the comprotaice. Thus by allowing strangers to occupy part of the rented premises against payment of rent, the respondents Nos. 1 to 9 have indulged in the act of subletting making them liable for eviction. This petition is therefore allowed only on the ground that part of the rented premises have been let out by the respondents Nos. 1 to 9 on rent, thereby committing the act of subletting, without seeking written permission of the petitioner. However, as the respondents Nos. 1 to 9 are carrying on commercial activity, they are allowed six months time to vacate the premises and hand over its vacant possession to respondent Nos. 1 to 9.