' SALMAN HAMID, J..---The facts of the case are that a Rent Application No,8 of 2008 was filed by the present respondents Nos.1 to 6 through their duly constituted attorney, Syed Qasim Hussain Zaidi before the respondent No,7 (Ist. Rent Controller, Khairpur) for eviction of the petitioners from Shops No,D-1090 and T-939, ground floor Ward B, Shahi Bazar Khairpur, (the Shop) on the grounds of default in payment of agreed monthly rent and for impairing the Shop.
2. Initially tenancy agreement for five years was executed in respect of the Shop as far back as on 19-5-1991. The rate of rent then was Rs,551 per month which on the date of filing of the Rent Case rose up to Rs,2,844 per month. After expiration of the above tenancy agreement of the Shop, as per the record, no further tenancy agreement was executed between the petitioners and the respondents Nos.1 to 6.
3. Case of the respondents Nos.1 to 6 was that they for the first time noticed in February, 2008 that the petitioners have illegally, unlawfully and without their consent have fashioned a door on the southern side of the Shop with the result that it (Shop) has been impaired. It was also alleged by the respondents Nos.1 to 6 that the petitioners were not regular in payment of the agreed monthly rent of the Shop and therefore they were categorized as defaulters. On these two grounds, in the first instance a notice dated 19-4-2008 was sent followed by the second one dated 28-8-2008.
Evection proceedings were initiated thereafter.
4. On the other hand the case of the petitioners was that the door had been created on the southern side of the Shop and with such creation no impairment was made to the Shop and even otherwise in view of Clause 3 of the tenancy agreement dated 19-5-1991 no permission was required. It was asserted that no default was ever made in payment of the agreed monthly rent of the Shop.
5. The respondent No,7 in terms of its detailed Order dated 1-9-2009 dismissed the Rent Application by holding that no impairment had been caused to the Shop and that no default in payment of the rent of the Shop was made by observing that the respondents Nos.1 to 6 had failed to give any details of the default in payment of monthly rent.
6. Order of the respondent No,7 was assailed by the respondents Nos.1 to 6 in Rent Appeal No,2 of 2009 before District and Sessions Judge, Khairpur, which upon transfer was decided by the respondent No,8 (IInd Additional District Judge, Khairpur). The respondent No,8 on its turn vide Judgment dated 17-10-2009 in a slipshod manner reversed the well founded reasoning of the respondent No,6 on impairment and ordered eviction of the petitioners from the Shop on such ground alone since by Rent Appeal only the finding of impairment had been challenged. Ground of default was given up by the respondents Nos.1 to 6.
7. In order to appreciate the contentions of the learned counsel on either end, regarding impairment to the Shop, in the first instance Clause (3) of the tenancy agreement Mated 19-5-1991 needs to be looked into, which reads as under:-- "3. That the LESSEE shall have full right to alter or erect any partition within the demised premises to renovate the same by changing its interior, exterior and frontage at any time at its own cost At the time of vacating the demised premises such partitions may be removed by the LESSEE at its own cost."
8. Bare perusal of the above reproduced Clause 3 of the tenancy agreement would disclose that the respondents Nos.1 to 6 had authorized the petitioners to alter or erect any partition within the Shop and to renovate the same by changing its interior, exterior and frontage at any time at its own costs and that at the time of. Evicting the Shop such partition may be removed by the petitioners at its own costs. Looking at this Clause it would be evident that the petitioners were authorized by the respondents Nos.1 to 6 to change the interior and exterior of the Shop without their (respondents Nos.1 to 6)'s consent or authorization and at the time of vacation thereof (Shop) the petitioners, in terms of the reproduced Clause 3 were to bring the Shop back to its original and/or real position which was in existence at the time of its letting out and that too at their (petitioners') own cost. Carving out a door in the wall of a Shop according to me would cover both the words, interior and exterior as the walls of the Shop would make it as such. Therefore when the door was made in the wall of the Shop, it was so created within the bounds of Clause 3 of the tenancy agreement. No permission was therefore required before carving out the door in the wall of the Shop.
9. The matter does not end here. It has no where come on record as to when the change in the Shop was brought about, whereby according to the respondent Nos.1 to 6 impairment was made.
Only it was mentioned that in February, 2008 it was noticed that unauthorized change has been made in the Shop. This was a time when tenancy agreement dated 19-5-1991 which was only for five years period came to an end in'1995 and 13 years period had gone by. The petitioners became statutory tenants after determination of five years period, as stipulated in tenancy agreement dated May, 1991. Since no date of change in the Shop (impairment) was mentioned and the respondents Nos.1 to 6 noticed such change (impairment) in February, 2008, it would be deemed that door in the southern side of the Shop was made if not on, around such time i,e, a date after determination of tenancy agreement dated May, 1991.
10. In above state of affairs the provisions of the Sindh Rented Premises Ordinance 1979 (1979 Ordinance) are required to be looked into. Impairment has not been defined in the 1979 Ordinance itself. However, section 15 of the 1979 Ordinance speaks about impairment by way of clause (iv) of subsection (2) of section 15. It reads:-- "(iv) the tenant has committed such acts as are likely to impair the material value or utility of the premises."
11. The above reproduced Clause of Section 15 stipulates that if the tenant has committed such acts as are likely to impair the material value or utility of the premises, eviction would be ordered. The burden, therefore heavily lies on the person alleging that by act of another person the utility and material value of the premises has impaired. No where by way of evidence it was brought on record to show that because of creation of a door in the Shop on the southern side, the Material value or utility of the Shop has been impaired. Had the respondents Nos.1 to 6 got examined expert witnesses in such regard who would have deposed that because of creation of a door, the material value or utility of the Shop has impaired, the things might have been different. Even otherwise it is difficult to conceive that just by creating a door in a wall, which can always be removed and covered by masonry blocks could impair the material value or utility of a given premises and/or in the present case such could be associated with the Shop.
12. From the above discussion what has come forth is that firstly the period of creation of the door on the southern side of the Shop during the continuation of tenancy agreement could not be established which was essential to attract the mischief of Clause 3 thereof as portrayed by the respondents Nos.1 to 6. If such Clause is taken out, then provisions of sub-clause (iv) of subsection
(2) of section 15 of 1979 Ordinance comes in to play. To over come the hurdle of the referred provision of law, again, the burden was on the respondents Nos.1 to 6 to have established that because of creation of the door in the Shop, its value has not just impaired but has materially impaired (as these are the exact words of Clause (iv) of subsection (2) of section 15 of 1979 Ordinance) whereby the value and utility of the Shop has affected. Dictionary meaning of impair is to damage or to weaken a thing. The respondents Nos.1 to 6 failed' to establish that by creation of a door in the wall, the Shop has G been damaged or weakened with the result that its value has come down.
13. Various precedents cited by the learned counsel for the respondents Nos.1 to 6 need not be discussed in view of the fact that in all such cited cases the impairment to the premises therein was either admitted or co-related with the tenancy agreements, which tenancy agreement were active and therefore the respective parties fell victim to the mischief thereof. The authorities cited on waiver had no bearing with the facts and circumstances of the case. It is already observed above that if the provisions of sub-clause (iv) of subsection (2) of section 15 of 1979 Ordinance is looked into, then it was the burden to be discharged by the respondents Nos.1 to 6 to show and establish that the Shop was materially impaired in its utility. This was not done.
14. For what has been observed hereinabove, this petition is allowed. Order dated 1-9-2009, passed by respondent No,7 is upheld and the judgment dated 17-10-2009, passed by the respondent No,8 is set aside. Petition is disposed of in terms thereof.