This appeal is directed against the judgment dated 14-5-1979 passed by the learned VIIth Additional District Judge, Karachi in Rent Appeal No. 341/78 setting aside the order of the Rent Controller dated 7-5-1978 in Rent Case No. 2316/75 and dismissing the respondent's application for ejectment on the ground of causing damage to the property (i.e. The shop) in question.
The brief facts leading to the filing of the above appeal are that the respondent filed the aforesaid Rent Case No. 2316/75 on the ground that the respondent had damaged the building of the shop by altering, adding and changing the original structure illegally without his permission. The above application was resisted by the respondent. The appellant in support of the above application examined himself and also 5 other witnesses namely, P. W. 2 Tasavar Ali, P. W. 3 Ghulam Murtaza P.
W. 4 Swaleh Muhammad, P. W. 5 Ansar Ahmad and P. W. 6 M.
1. D. Changezi, whereas the respondent examined himself in defence. The learned Rent Controller by his aforesaid order dated 7-5-1978 allowed the above application of the appellant. The respondent being aggrieved by the above order had filed the aforesaid Rent Appeal No. 341/78, which was allowed by the learned VIIth Additional District Judge, at Kara;hi by his aforesaid Rent Appeal No. 341/78, which was allowed by the learned VI1th Additional District Judge, at Karachi by his aforesaid judgment dated 14-5-1979.
The appellant being aggrieved by the aforesaid order of the learned first appellate Court has filed the resent second appeal.
2. (a) In support of the above appeal Mr. M. M. K. A. Zai has made the following submissions
(i) That the first Appellate Court has relied upon the facts not proved.
(ii) That the First Appellate Court had set up a new case for respondent.
Whereas it has been urged by Mr. Humayun, learned counsel for the respondent that the finding of the learned First Appellate Court that the appellant's application for ejectment was mala fide is supported by the evidence on the record and the conclusion arrived by it, is in accord with the evidence on the record.
(b) Reverting to the above contentions of Mr. M. M. K. A. Zai, it may be pertinent to state that the appellant had filed Rent Application No. 33/1966 on 4 grounds, namely, default, sub-letting, change of use, and personal requirement. The above application was dismissed by the Rent Controller by an order dated 19-I1-1966 and all the above grounds were found not proved. The appellant being aggrieved by the above order had filed First Rent Appeal No. 4/67, which was dismissed on 3-12- 1968. The appellant being aggrieved by the above two orders had filed II A. No. 105/69, which was dismissed in default on 26-7-1974. The application for restoration of the above appeal was filed after the expiry of about two months, which was also dismissed on 9-3-1975. Upon the dismissal of the aforesaid appellant's restoration application, the respondent addressed a letter dated 31-3- 1975 to the learned counsel for the appellant Mr. M. M. K. A. Zai, Advocate Exh. 3, stating therein that the aforesaid Second Appeal No. 105/69 stood disposed of and that he had been depositing rent regularly in the Court, but-he-would have no objection in making payment directly to the appellant. The appellant was also requested to give correct address, at which the rent could be remitted. It seems that the above letter was not replied to by the appellant as no copy of the same has been filed by the appellant before the trial Court. However, it seems that the appellant started second round of the litigation by filing of the aforesaid Rent Application No. 2316/75 on 18th July, 1975 on the aforesaid ground, namely, causing damage to the structure of the shop referred to hereinabove in para. I.
(c) As observed hereinabove in support of the above application the appellant examined himself as P. W. 1 and also 5 other witnesses. The appellant in his deposition has stated that the respondent had changed the property in question on 22nd May, 197.5 by making, a Balkoni after breaking the parapet wall of the shop of the front side, and that he had also broken the door of the shop with wooden planks. It was also stated by him that the opponent had constructed a cabin measuring of 4 x 10 ft. By breaking the wall. In his cross-examination, he admitted the factum of filing of the rent application its dismissal, followed by the dismissal of the first and second rent appeal. He also admitted the fact that he did not serve any notice upon the respondent for allegedly causing damage to the shop nor he reported the matter to the Police or to the K. M. C.
P. W. 2 Taswa r Ali did not make any statement in support of the appellant's present application as he had merely deposed that the appellant had told him that he had filed a rent case against, the-- -, respondent as he wanted his shop for his own use.
P. W. 3 Ghulam Murtaza has deposed that while he was going to work about 5 or 6 months ago at about 10-11 a.m. One labourer and one iron smith were working at the premises. He then stated that two labourers, one mason and one iron smith were working. However, in the cross---examination he had stated that he did not know the number of the shop and that he used to go on his duty at 8-30 a.m. Daily. The evidence of the above witness does not inspire any confidence inasmuch as he has not given any explanation as to why on the date in question instead of going at about 8-30 a.m. He was going on his duty at 10-11 a.m.
P. W. 4 Swaleh Muhammad has deposed that the appellant in his presence bad asked the respondent as to why he had removed the door and damaged the building while he was buying certain articles from the respondent's shop. In the cross-examination he had stated that he could not say as to whether any other person was present or not at that time at the shop. He also admitted that the appellant had not asked about his parentage at that time. He had further stated that he knew the appellant as he offered Traveeh prayer led by the appellant in one of the mosques. The statement of the above witness was also highly improbable inasmuch as it is unbelievable that aforesaid witness was purchasing the goods from the respondent's shop and that the appellant happened to come there and to enquire as to why he had removed the door and damaged the building. Even otherwise, he is not an eye-witness of the alleged removal of the door and causing damage to the structure of the shop.
P. W. 5 Ansar Ahmad has deposed that be had seen the shop about 2 years ago and also 8-10 days back and that the shop was changed when he saw last. The evidence of the above witness also does not prove the factum that the respondent had removed the door or caused any damage to the shop on 22-5-1975.
The last witness P. W. 6 M. I. D. Changezi described the shop as then existed. In his cross- examination he admitted the factum that he did not inspect the shop from inside nor he gave any notice to the respondent before inspecting the shop.
There is also a site inspection note recorded by the learned Rent Controller upon his personal inspection of the shop. According to aforesaid site inspection note, it seems that the shop has tin- sheets roof and that certain Chajja was installed by making holes in the wall of the shop. In the cross-examination of the respondent, it was suggested to him by the learned counsel for the appellant that he (i.e. The respondent) had made 4 holes in the wall in order to erect the tin chajja.
3. From the above evidence it has not been proved that the responder had made the alleged alterations on 25th May, 1975 or on any other date or that the respondent had committed acts/omissions which were likely to impair materially the value or the utility of the building in terms of section 13(2) (i.e of the repealed W. P. U. R. R. Ordinance, 1959. , It may be observed that it is unbelievable that the appellant after noticing on 22nd May; 1975 of coming to know about it thereafter that the respondent was carrying out material alterations or causing damage to the appellant's shop would not have served any notice upon the respondent or that he would not have reported the matter-to the Police and/or to the K. M. C. Keeping in view the background of the previous litigation initiated by the appellant for ejectment on 4 grounds in 1966 which proved to be futile culminating in the dismissal of the aforesaid second appeal in March, 1975, the appellant apparently in order to re-initiate a fresh round of litigation had come out with a fresh ground after about 4 months from the dismissal of his aforesaid a second appeal and filed the aforesaid Rent Case No. 1316/75. In my view the finding arrived at by the learned First Appellate Court is in accord wit the evidence on the record. The learned first Appellate Court has neither relied upon unproved facts nor has set up a new case for the respondent.
4. In view of the above discussion, the appeal is dismissed with no order as to costs.