SYED MUHAMMAD FAROOQ SHAH, J.:- Through the captioned petition, the petitioners have assailed the impugned judgment dated 25.1.2012, passed by learned Vth Additional District Judge, Karachi- East/respondent No.3, in FRA No. 60 of 2010, filed against the order dated 11.2.2010, passed by 1st Rent Controller at Karachi-East/respondent No.2, whereby the ejectment of respondent No.1 sought on the basis of default in payment of rent and alternation in shop No.08, ground floor at plot No. S- 30 Korangi Township, Karachi, was declined and the ejectment application as well as FRA were dismissed. The petitioners have prayed to set aside the impugned orders/concurrent findings of the learned courts below on the facts and grounds as set forth in the memo of petition.
2. Succinct facts of the case in hand are that petitioners are co-owners in inheritance in property, inherited from their mother Mst. Sharifan Begum. The late mother of the petitioners leased out the case premises to the respondent No.1 in the year 1982 at the rate of 325/- per month and thereafter the rent was not increased inspite of repeated requests of the petitioners for enhancement of rent.
It is averred that the respondent No. 1 raised illegal construction in the demised premises and without permission made alteration by fixing an additional door towards the street. The petitioners sought ejectment of the respondent No.1 on default in payment of rent and on the ground of alteration in the demised premises.
3. Learned counsel for the petitioners at the outset contended that both learned subordinate courts have been seriously erred to pass the impugned judgments, not sustainable in law as the learned Rent Controller in his order dated 11.10.2010 in Rent Case No. 150 of 2007, while dilating upon the issue of illegal construction in the demised premises on point No. 2, observed that in cross- examination the respondent No.1 has admitted that he raised shade in front of the shop in question and fixed the door in 1984 or 1982. The learned Rent Controller has also observed that the respondent No.1 also failed to produce any permission or any other document showing that mother of the petitioners had given permission to make such alteration. Learned Rent Controller next observed that "it is very interested to point out that applicants admitted in their cross-examination that "it is fact that we had encroached upon the street of Kachra, adjacent to shop in question."
While concluding his findings on point No; 2, learned Rent Controller held that "the shade of the opponent/tenant is without permission so it is encroachment."
4. Learned counsel for petitioners submitted that point No.2 pertaining to the issue of illegal construction in the demised premises has been decided in favour of the landlord/petitioner by the learned Rent Controller against the tenant/respondent No.1 but erroneously the trial court dismissed the eviction application. It is argued that learned appellate court has also failed to dilate upon the issue of illegal construction in the demised premises and while deciding the only issue relating to default in payment of rent in favour of the respondent No. 1, dismissed the FRA, which is result of non-reading/misreading of judgment passed by learned Rent Controller. It is further argued that both learned subordinate courts failed to consider that under the law it is not necessary or incumbent upon the landlord to establish all grounds of ejectment; even one ground, if proved against the tenant/opponent, the ejectment application should have been allowed rather to reject it.
5. Respondent No.1 is unrepresented as none has appeared on his behalf.
6. To consider the legal point that as to whether if the landlord establish one of the ground of eviction under section 15 of Sindh Rented Premises Ordinance, 1979, is entitled to obtain the physical possession of the premises or that he has to prove all grounds of eviction raised in the application, the learned counsel submitted that while passing the impugned judgment, learned appellate court was very much stressed on the point of default and even a very little findings had not been given on the issue of alteration made by respondent No.1 relating to impair the material value and utility of the premises, which was the most important ground but it was not touched by the learned appellate court, hence resulted in miscarriage of justice. According to learned counsel for the petitioners, the ground of alteration of premises was virtually decided against the tenant/respondent No.1 and by deciding point No.2 both learned courts erred in law by overlooking the evidence, therefore, keeping in view the observation of the learned Rent Controller in respect of admission of alteration, the tenant/respondent No.1 is liable to be evicted from case premises.
7. For the sake of just decision of legal point raised by the petitioner, it will be not out of context to reproduce section 15(1)(2)(iv) of Sindh Rented Premises Ordinance, 1979 as follows:- "15. Application to Controller. (1) Where a landlord seeks to evict the tenant otherwise than in accordance with section 14, he shall make such application to the Controller.
(2) The Controller shall, make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that
(i) . . . . . . . . . . . . . .
(ii) . . . . . . . . . . . . . .
(iii) . . . . . . . . . . . . . .
(iv) the tenant has committed such acts as are likely to impair the material value or utility of the premises;"
8. The admitted position as reflects from the record is that the tenant/respondent No.1 raised construction in the demised premises without permission of petitioners or their late mother and made alteration in the demised premises by taking out additional door towards the street of the area. The learned trial court decided the point No.2 with regard to illegal construction in the demised premises in favour of the petitioners but astonishingly dismissed the ejectment application. The said point was also re-agitated before the learned appellate court and the learned appellate court did not dilate upon it. It needs not to iterate that even one ground of eviction, if proved, is sufficient for ejectment of the tenant. In the instant case structural changes in the case premises without any permission from the petitioners or their mother is admitted by the tenant/respondent No. 1 and learned Rent Controller has discussed this point in detail but did not pass the ejectment order. It need not to re-emphasize that bare reading of the aforementioned provision relating to eviction of the tenants provides that the Controller shall make an order directing the tenant to put the landlord in possession of the premises if he is satisfied that the tenant has committed such acts as are likely to impair the material value or utility of the premises.
Since the judgment passed by subordinate courts are not sustainable being oppose to law and against the settled principle of administration of justice, therefore, this is a fit case for exercise of constitutional jurisdiction, as under the provisions of section 15 of Sindh Rented Premises Ordinance, 1979, it is not necessary to establish all the grounds of eviction by the landlord, even one ground of ejectment, if establish by the landlord, would be sufficient for eviction of the tenant.
9. Apparent illegality in impugned order has rightly been indicated by the learned counsel for the petitioners as the Rent Controller though decided the ground of eviction with regard to impair the material value or utility of the premises in favour of the petitioner but did not pass the order of ejectment and learned appellate court while passing the impugned order also did not even consider this aspect of the case, which is an instance of misreading or non-appraisal of evidence, though landlord had succeeded in proving the point No. 2 relating to alteration which impaired the material value and utility of the premises.
10. For the foregoing it would be suffice to say that both judgments of lower courts suffers from infirmity and illegality and cannot be sustained. Resultantly, the petition is allowed, impugned judgment is set aside. The respondent No. 1 is given sixty (60) days' time to vacate the premises. In case of default, writ of ejectment/possession be issued without any further notice. However, there shall be no order as to costs.