1. ZAFFAR HUSSAIN MIRZA,J.-This appeal by special leave arises out of the judgment and order, dated 9-12-1979, passed by a learned Single Judge of the Lahore High Court, whereby the Second Appeal filed by the respondents under section 15 of the Urban Rent Restriction Ordinance, 1959 thereinafter referred to as the Ordinance), was accepted and the appellants herein were ordered to be ejected from the premises in dispute. These premises comprised a tenement consisting of Flat No. 117/7 in Exchange Building, situate on the Mall, Murree, and were let out in 1959 to one Haji Fazal Elahi, who is dead, and is now represented by the appellants, on seasonal basis at a rental of Rs. 2,050 per season. It is common ground that the premises were being used, right from the inception of the tenancy as a hotel under the name and style of "Rehn Basera". The landlord filed an ejectment application against the tenant on the ground of personal requirement of the premises on 16-12-1965, but he withdrew the application and soon thereafter on 27-9-1966, he filed a fresh application for ejectment on several grounds, inter alia, on the allegation that the tenant had impaired the value and utility of the building by converting it into a commercial unit, although it was let out for residential purposes and by constructing twelve cabins, several bath rooms and latrines, which has resulted in leakage of water causing damage to the property. The Rent Controller, by his order dated 24-9-1969, dismissed the application and his order was maintained by the Additional District Judge, Rawalpindi, who dismissed the appeal of the respondents by his order, dated 21-3-1972.
2. Being dissatisfied by the decision of the learned Additional District Judge, Rawalpindi, the respondents went up in Second Appeal before the Lahore High Court and a learned Single Judge of that Court by the impugned judgment accepted the appeal and ordered the ejectment of the appellants on the ground that the construction of the cabins had materially impaired the value and utility of the building, as well as that the construction of bath rooms and latrines on the wooden roof had caused damage to the building.
3. By order, dated 24-3-1980, this Court granted leave to appeal in order to examine the question, whether "the High Court had erred in giving weight to the evidence led on behalf of the respondents without assigning any reason as to why it should have been preferred to that of the petitioners (appellants) which equally showed that no damage was caused to the building".
4. Additionally, the further question that required consideration was whether a concurrent finding of fact could have been altered by the High Court under section 100 of the Code of Civil Procedure, in absence of any substantial error or defect in the decision of the case upon the merits. The last point for consideration was whether the High Court had fallen into an error in granting the prayer on the ground stated above when no exception was taken to the conversion of the premises into a hotel.
5. Now the case of the landlord set up in the application for ejectment was that the Flat in question had been let out for residential purposes, and that the appellants after taking the possession thereof, had converted it into commercial premises by establishing a residential hotel in it without the consent of the landlord. It was alleged that the appellants had carried out structural changes in the premises, by constructing as many as twelve cabins along-with latrines. It was further alleged that as a result of the aforesaid changes, the value and utility of the building were materially impaired, as water was profusely leaking from the bathrooms damaging the property. These allegations were repudiated by the appellants, who pleaded that the premises were let out specifically for the purpose of being used as a hotel and immediately after the commencement of the tenancy, the appellants had made improvements with the concurrence of the landlord at a cost of Rs. 20,000. According to them, the premises were registered under the Sarais Act and were used a Sarai from the very beginning. It was alleged by the appellants, that the real purpose behind the move for ejectment of the appellants was to enhance the rent for which the landlord had made attempts in vain.
6. On the evidence of the parties, the learned Rent Controller rejected the allegation of the landlord that the premises were let out for residential pur--poses and had been unauthorizedly converted into commercial use. In reaching this finding, the learned Rent Controller summed up his reasons in the following observation :- "That the premises are being used as hotel since 1959-60 is not denied.
7. The hotel is run by name of Rehn-Basera. It is in evidence that there is a board outside the premises of that name. That the converting of the premises into a hotel involved major structural changes which were brought about as long ago as 1959-60 is also not seriously disputed. The petitioner admits that he spends most of the time of the year at Murree. During summer season at least he '; is always in Murree. In these circumstances, it is extremely difficult to believe the petitioner, without straining one's credulity to a breaking point, when he says that the structural changes were brought about without his knowledge. In fact as he admits he lives in the part of the building of which the premises in question forms another part. The structural changes as stated by Fazal Ellahi and Ashiq Hussain took sometime to be completed. The petitioner has been seeing the hotel being run after the structural changes had been carried out, but he does not appear to have raised even his little finger as a protest against the said changes. If the premises had in fact not been let out for the purpose of a hotel the petitioner could take immediate steps to stop the respondents from proceedings with the changes. The petitioner has no plausible explanation to offer as to why he kept silent all these years. I am therefore inclined to the view that the premises in question were let out expressly for the purpose of running a hotel. I am strengthened in this conclusion by the fact that in the previous petition for ejectment the petitioner did not at all take the plea that he structural changes had been brought about and that the same detrimental to the building."
8. In appeal, as already observed, the learned Additional District Judge, Rawalpindi, upheld the finding of the Rent Controller, agreeing with the reasons adopted in support thereof, holding that the premises were let out to the appellants for the purpose of running a hotel. In view of this finding, the learned Additional District Judge reached the conclusion, that since the lease was obtained for the aforesaid purpose, the landlord could not raise objection to the conversion of the building for commercial purpose and plead that by so doing the value and utility of property were adversely affected. On the question of the alleged damaged caused to the building by percolating water from the latrines and bath rooms the learned Additional District Judge held that it was the duty of the landlord to effect repairs, specially when such plea was raised in 1962 before the Chairman of the Municipal Committee in the proceedings for enhancement of rent. He, therefore, repelled the contention of the landlord that this furnished a ground for ejectment.
9. The learned Single Judge of the High Court, in the impugned judgment, agreed with the finding of the two Courts below that the premise were being used for the purpose of a hotel from the very beginning. And that,, this fact was within the knowledge of the landlord. The finding on this issue, therefore, stands concluded and has attained finality. The learned Judge, however, has taken the view that the Additional District Judge did not consider the evidence of the parties to arrive at a proper conclusion in relation to the issue pertaining to the allegation regarding the impairing of the value and utility of the premises. In this view of the matter, the learned Judge proceeded to enter into the appraisal and assessm ent of the evidence on record. After reproducing the substance of the evidence of witnesses examined by the parties, he made the following remarks: "The learned Additional District Judge, appears to be conscious of the fact that the property had deteriorated materially, that is why he had categorically not held that the water from the latrines and the bath rooms was not damaging the roofs as well as the building. All that was remarked by him was that it was due to the fact that the landlord had failed to get the repairs done whereas, in view of the bad condition of the building, he was bound to repair it adequately. I do not agree with this view because it was not the duty of the landlord to always keep ready to repair the rented building as soon as the tenants caused any damage."
10. The final conclusion was stated by the learned Judge in the following words:- "In view of the factual position, the construction of the cabins in the halls had materially impaired the value and utility of the building, as during their existence it would not be possible to use its halls as such. The construction of the bath rooms and the latrines on the wooden roof has already caused much damage to the building and the appellants' witnesses were unanimous on this point."
11. We have been taken through the evidence of the parties recorded in the Court of the Rent Controller. For the present purposes, it may be stated, that the landlord, inter alia, sought the ejectment of the appellants on two grounds, namely, that the tenants had used the building for purposes other than the one for which it was leased (a ground for ejectment furnished by subsection (2)(li)(b) of section 13 of the Ordinance; and that the appellants had committed such acts as were likely to impair materially the value or utility of the building (a ground for ejectment furnished by subsection (2)(iii) of section 13 of the Ordinance). The High Court upheld the findings of the Courts below as regards the first-mentioned ground, but upset the finding so far as the second ground is concerned.
12. It may, at once be said, that from the finding that the premises was converted from residential to commercial use; indeed that the very purpose for which tenancy was created being for use as a residential hotel, it follow that suitable changes in conformity with its intended use, were implicit in such agreement between the parties. It could not, therefore, be held that the making of these changes ipso facto impaired the utility of the building. However, this is precisely what the High Court held, as shown above. The real question, for consideration, that emerged, from the aforesaid finding was, whether the tenants had sued the premises in such a way as to impair its value or utility.
13. Landlord's witness Ashfaq Hussain, has remained as Overseer of Municipal Committee, Murree. He deposed that there are in all ten latrines in the portion of the building in question, nine on the third floor and one on the ground floor. He admits that he did not see the wooden roof under the third floor, nor did lie observe the building with a view to determine whether the bath rooms and latrines were causing damage by leaking water. His evidence is, therefore, of no value to the landlord. The next witness of the landlord, Sheikh Rehmatullah only stated that the wooden planks of the roof under the bath rooms and latrines, had been damaged. This witness is certainly not an expert and his evidence, consists of opinion evidence. He has admitted that his son is a tenant of the landlord at Rawalpindi. The third witness of the landlord, Atta Muhammad, has on the other hand, stated that, the construction of latrines has damaged the floor. But, he has also stated that he saw the roof underneath which was not damaged. Lastly, is the evidence of the landlord himself.
14. As against the above evidence, the tenant's evidence in rebuttal, consists of the testimony of his witnesses, Abdur Rahim, Muhammad Iqbal, Muhammad Ashiq, and the tenant Fazal IIlahi himself.
15. Witness Abdur Rahim is a Medical Practitioner at Mall Road, Murree, and is a tenant of a tenement in the very same building viz. Exchange Building on the first floor. He has categorically stated that he has seen the tenant's hotel "Rehn Basera" and its condition was good. He found the beams of the roof in good condition and denied that water was leaking. Witness Muhammad Iqbal stated that his father was a tenant in a part of the building since before the premises in dispute were let out to the appellant's predecessor. He has also testified to the tenantable condition of the premises which according to the witness are in good repair, nay, indeed its present condition is much better than before. He also categorically denied that the roof of the building leaks. Witness Ashiq is a Contractor Residing at Tehsil Road, Murree, and had executed the work of repairing the same building. In his cross-examination, he has stated. That he had also repaired the bath rooms including their flooring. He has also categorically denied that water leaks from the floors of bathrooms to the lower part of the building.
16. From the above discussion of the evidence, it clearly appears that the landlord had miserably failed in discharging the onus of proof that landlord had miserably failed in discharging the onus of proof that lay upon his shoulders, to establish the allegation that the tenant had caused damage to the property by using the bath rooms and latrines in such a way that water leaked towards the lower, floors. Even if the evidence of the two sides is kept in juxtaposition, the appellant's evidence is on a much higher level and of a far better value than the vague allegations made by the landlord's witnesses. We, therefore, agree with the submission that the High Court failed to properly assess and take notice of the appellant's evidence to reach the conclusion that the condition of the building had deteriorated materially after the tenancy was created in favour of the appellants. We regret our inability also to agree, with the view of the High Court, that the question could be disposed of on the ground that it was not the duty of the landlord to be ready always to repair the building as soon as the tenants caused any damage. The question was whether the tenants did actually cause damage as alleged and we find no positive finding in this behalf, in the judgment of the High Court. In the context of the facts of the present case, it appears to us, that the case of Shujahuddin Qureshi v. Hussan Ara Begum (PLD 1964 Lah. 292), provided no assistance in deciding the issue between the parties in this case. The decision in the reported case turned on the peculiar facts of that case, as the finding of the Court therein was, that the tenant had unauthorizedly, without the landlord's permission, erected ply-wood cabins, in the Main Dancing Hall for residential purposes, and had also interfered with the electric service lines to carry electricity to these cabins by means of loose electric wires without the permission of the Electricity Department. It will be appreciated that the reported case was of a tenant of an already established hotel premises containing a Dancing Hall which was converted for residential purposes by erecting cabins therein.
17. On the other hand, in the present case the concurrent finding of the Courts below, which was also affirmed by the High Court, was that the premises in dispute were residential premises which were let out for the purpose of establishing a residential hotel.
18. As already pointed out, the High Court itself came to the conclusion, that the premises were being used for the purposes of a hotel from the very beginning and that this fact was within the knowledge of the landlord, who took no exception to it. The finding that the premises were let out for purposes of hotel, was therefore, affirmed by the High Court. It, therefore, necessarily follows that the bathrooms and latrines were constructed with the knowledge and consent of the landlord.
19. It could not, therefore, be held that such changes had materially impaired the utility of the building.
20. We are, therefore, with all due respect to the learned Single Judge unable to agree with his conclusion that this fact established the ground on which ejectment was sought by the landlord. In this view of the matter, interference at the stage of Second Appeal was not called for in terms of section 100 of the Code of Civil Procedure.
21. For the foregoing reasons, this appeal is allowed and the order of the High Court, dated 9-12-1979 is hereby set aside. The parties are, however, left to bear their own costs in the circumstances of this case.