1. ' This second appeal has been filed under section 15, subsection (4) of the West Pakistan Rent Restriction Ordinance, 1959, against the judgment dated 26-8-1978 of the District Judge, Karachi in First Rent Appeal No, 396 of 1977.
2. ' The facts of the case are as under : - ' The appellant is tenant in respect of ground floor premises of building on plot No, SR 9/11 situated on the junction of Frere Road and Hassanali Effendi Road, Karachi since about 27 years. The premises in dispute and the adjacent building on the same plot were owned by joint owners. The property was divided in two parts namely S R 9/11/1 and S R 9/11/2 in year 1942-43 when the common passage between the two portions was closed. S R9/11/1 belongs to the respondent and S R 9/11/2 is owned by one Yousuf Hakimuddin Sadiq.
3. ' The appellant runs a business of printing and his Printing Press and Office are partly situated on the sub-divided plot belonging to the respondent and partly on the plot belonging to Yousuf Hakimuddin Sadiq. He pays R. 44 per month to the respondent and Rs, 20 per month to Yousuf Hakimuddin Sadiq as rent.
4. ' On 23-12-1969 the respondent filed an application under section 13(2) of the West Pakistan Urban Rent Restriction Ordinance, 1959, before the Second Rent Controller Karachi, for ejectment of the appellant on the ground that without any permission from him the appellant had carried out extensive additions and alterations in the tenement and despite notice dated 9-12-1969 sent to him by registered post acknowledgment due, he neither stopped such acts nor restored the premises to their original condition.
5. ' It was his case that the said additions and alterations are detrimental to the premises and have also, materially affected their shape, value and utility.
6. ' The appellant in his written statement admitted the tenancy and the rate of rent but he denied that he had made any additions or alterations to the premises in question which he was using as Office of his Printing Press. It was his case that the premises were neglected by the landlord as necessary repairs had not been carried out for a long time. It was further his case that at his request the respondent had permitted him to carry out the necessary repairs for which he had given contract to one Abdur Rehman, who had carried out the repairs at a total cost of Rs, 2,000 which is payable by the respondent to the appellant. The appellant in his written statement asserted that the dispute between the parties arose only after, he demanded Rs, 2,000 from the respondent, who in order to avoid the payment, served notice dated 9-12-1968 on him, to which he had made immediate reply and had claimed Rs, 2,000 from the respondent. The appellant further stated that the allegation about additions and alterations was false and. Asserted that by carrying out the repairs the condition of the building had materially improved and its utility has increased.
7. ' On the pleadings of the parties the Rent Controller settled the following issues :-
(1) Whether the opponent had made additions, alterations in the demised premises without permission of the applicant?
(2) Whether the said alterations have been detrimental to the premises and have materially affected their value, use and utility?
(3) Whether the opponent has thereby rendered himself liable to be ejected from the demised premises?
(4) What should the decree be?
8. ' In support of his application respondent himself gave evidence and produced the registered letter, its reply and further correspondence on the subject. He also produced the notice issued to the appellant by the Karachi Municipal Corporation, the copy of complaint by the Municipal Authorities and of the order thereon of the Additional City Magistrate and fining him Rs,
20. He also examined witness Fazal Abbas, the Rent Collector of Yousuf Hakimuddin, the landlord of the adjacent premises. On the other hand the appellant/tenant gave evidence on his own behalf.
9. ' The learned 2nd Rent Controller, Karachi, gave findings on all the issues in favour of the respondent-landlord and allowed the application for ejectment by his order dated 20-10-1977.
10. ' The appellant filed Rent Appeal No, 396 of 1977 before the District Judge, Karachi against the aforesaid order of the Rent Controller. The appeal was incidentally heard by the 3rd Additional District Judge, Karachi who by his judgment dated 26-8-1978 dismissed the same with costs and directed the appellant to hand over vacant possession of the premises to the landlord within 45 days of the orders and hence the instant 2nd appeal.
11. ' The only issue involved in this case is whether on the evidence on record, the tenant (appellant herein) had committed such acts as were likely to impair materially the value or utility of the building, within the meaning of section 13(2)(M) of the Sind Urban Rent Restriction Ordinance, 1958.
12. Ordinarily, the concurrent findings of the Rent Controller and the 1st appellate authority on the point which is one mainly of facts is not to be interfered with at the stage of 2nd appeal. However since under exceptional circumstances the scrutiny of such findings is permissible under the law and the contention on behalf of the appellant is that the aforesaid findings are perverse and based on misconception of the law on the point, the evidence on record has been thoroughly scrutinised and the arguments of the learned counsel for the parties have been fully heard. It is considered fit and proper therefore to evaluate and appreciate the evidence on record appreciation of which alone may indicate whether there is justification for interference by this Court at the stage of 2nd appeal.
13. The legal point as to whether such interference could appropriately be made will be dealt with later.
14. ' A perusal of the application for ejectment dated 23rd December, 1969 would show that although there is assertion about the respondent carrying out extensive additions and alterations in the tenement, the specific mention of the same was not made. The allegation in this respect is vague as although the additions and alterations have been stated to be detrimental and also materially affecting the shape, value and utility of the premises no specific changes and alterations have been mentioned. However, there is mention of registered legal notice dated 9-12-1969 in respect of the additions and alterations and the aforesaid notice was produced and is Exh. 6 on the record of the Rent Controller. A perusal of the same would show that although there was allegation that the appellant was executing extensive additions and alterations in the tenant, no specific mention of the same was made. For the first time in his evidence which was recorded on 15-11-1976, the respondent gave the details of the alterations and additions as under :- "The opponent has broken the front door and removed the front window, the opponent has also broken the wall of the premises from inside, the opponent has raised construction on the roof of disputed premises. It appears a room from the outside but do not know what it is as I have not visited it inside."
15. ' Elsewhere in his deposition, the respondent stated that the appellant in spite of receipt of notices had not removed the unauthorised construction and he has further elaborated that the appellant had made his building open to the other buildings as he had broken the common wall. Before the evidence of the respondent is considered further, it may as well as stated that his witness Fazal Abbas who is the employee of Yousuf Hakimuddin, the landlord of adjacent premises and who according to his statement is the rent collector of his landlord for the last 30 or 35 years, states that the building of Yousuf Hakimuddin and that of the respondent were only divided by a wall.
16. According to him there was no passage through the dividing wall which had been demolished by the appellant. In his cross-examination he was not able to say whether there is a door in the aforesaid wall at present. He has further stated that his employer had filed a case against the appellant which was decreed by the lower Court, but was dismissed by the 1st appellate Court and no 2nd appeal could be filed as such appeal would have been barred by limitation.
17. ' In respect of the aforesaid wall, the respondent in his cross-examination has admitted that it is correct that before the sub-division of the property, the disputed premises and adjacent building were owned by joint owners. He has further admitted that the passage was actually closed at the time of sub-division and now it has again been opened by the appellant. It was the case of the respondent that in respect of the alterations and additions the respondent had been served notice by the Municipality for unauthorised erection and re-erection. He has produced the same which is on record. The notice however, only mentions that the respondent has erected/re-erected structures on the plot mentioned in contravention of sanctioned building plan. The description of the so-called additions and alterations however, is given in detail in the complaint filed by the Karachi Municipal Corporation a copy of which has also been brought on the record. The details read as under :-
(1) Widening of door and providing lintel and removal of stone masonery wall and window and door.
(2) Open area covered with wooden roof.
18. ' Admittedly it is the case of the appellant that since no repairs had been made for a long time, he had carried out the same initially at his own expense. His contention is that repairs were done with the landlord's permission, whereas this is denied by the landlord. It has been argued by Mr. Liaquat Merchant the learned counsel for the appellant, that the old door was no doubt replaced by a new one which should not be considered as alteration or addition. The putting of lintel which is horizontal timber, or stone over door is only to make it strong and stable and was a must for replacing the old door. With regard to the open area (the area covered with wooden roof) reading the evidence of the respondent together with the notice issued by the Municipality, it means merely that some temporary structure was put as a covering of open space which the appellant denies exact acknowledge of because according to him it is on the roof and he had no access to it.
19. ' There is no other evidence on the record about the extensive alterations and additions alleged to have been done by the appellant. On the other hand, the appellant in his evidence has totally denied that he has in any way altered the premises. He has explained that he has been a tenant of the premises for a very long time and the respondent had not been carried out repairs from the very start. He had approached the son of the appellant to carry out necessary repairs but the latter had also failed to get the repairs done. He was therefore asked to make the necessary repairs and the landlord would pay the charges. He has totally denied having caused any damage to the premises or having made any alterations which could impair the value and utility of the premises.
20. It may here be observed that the learned Rent Controller in his judgment has not discussed the evidence in detail as to the so-called additions and alterations and has placed reliance on the notice served by the K. M. C. And the orders of conviction under which respondent was fined Rs, O. It is also apparent from perusal of the judgment that the question whether the so-called additions and alterations had impaired the value and utility of the building has not been considered or discussed.
21. ' By removal of an old door and replacing it with a new door and lintel above it, no impairing of the value and utility of the building could ever be conceived.
22. ' The word "impair" has been defined in the Balletine's Law Dictionary (3rd Edn. 584) as under :- "To make worse, to diminish in quality, value, excellence or strength to deteriorate."
23. ' The provision in section 13 of the Urban Rent Restriction Ordinance, 1959 in clause (iii) of subsection
(2) thereof refers to acts likely to impair materially the value or utility of the building. It is, therefore, quite clear that only alteration or addition could not be considered such an act which makes the tenant liable to be ejected unless the same impairs 'materially' the value or utility of the building.
24. The learned 3rd Additional District Judge in his impugned judgment also has not discussed the matter as to the material impairment of the value, B or utility of the building and has considered the aspect of the breakage rather than the repaired position of the building and has held that the value and utility of the premises were impaired as "the appellant had broken the front door and front window and also broken the wall of the premises from inside and had horizontally bifurcated the premises in dispute."
25. ' For the purpose of coming to decision whether the value and utility has been impaired the entire aspect of the so-called changes had to be minutely C considered. The horizontal bifurcation by putting lintel -is-as already explained, the usual thing while fixing a door or window, when horizontal timber or stone over it is put. The learned A. D. J. Has also referred to the raising of construction on the roof of the premises without going into detail to see what construction it actually was. Since the Legislature has qualified the acts which render liable the tenant to be ejected as these impairing materially the value or utility, the mere statement about alleged addition or alterations cannot be considered to be sufficient for making the tenant liable to eviction, it is very apparent from a reading of the two judgments of the lower Courts that this important legal aspect was not considered E while arriving at the concurrent findings that the tenant had rendered himself liable to be ejected from the premises.
26. ' Mr. Liaquat Merchant the learned counsel for the appellant while further elaborating as to what is considered as an act likely to impair materially the value or utility of a building, referred to the Indian decision in AIR 1956 Nag. 60 where the aforesaid question was considered. In that case the tenant had raised temporary shade which did not alter or demolish any part of the house except a portion of the front wall in so far as the erection of the temporary shade was concerned and it was held that it cannot be held as an act of waste in the sense that it is understood in law.
27. ' Coming to the contention that in view of the concurrent findings of the lower Court on a point of fact this Court has not jurisdiction to interfere with the same it may be stated that ordinarily the High Court in 2nd appeal does not interfere with concurrent findings on points of facts. Mr. Mirza Saeed Baig, the learned counsel for the respondent landlord has referred to several decisions of the various High Courts on the point which I need not discuss as I am in full agreement that ordinarily such findings of facts are not to be interfered with. However, the aforesaid rule has exceptions. In Muhammad Alam v. Noor Muhammad (1) (a decision of the Supreme Court leave to appeal was granted to consider whether High Court could interfere with the concurrent findings of the District Judge and the Rent Controller that there was no default in payment of rent. It was held that since the matter was a mixed question of law and fact, the High Court could displace the concurrent findings of the lower Court. Similarly where the concurrent findings are based on misinterpretation of documents, misreading of evidence, misstatement of facts and mis- conception of law their force is lost and the High Court can at the stag of 2nd appeal, interfere with the same. Reliance in this respect was placed on S. Mohammad Matin Mirza v. Jehangir Rustomji
(2) and Messrs Friends Cloth Store and others v. Syeda Amtul Aziz (3).
28. ' In Mst. Bib! Jan v. Habib Khan and another (4), the Supreme Court of Pakistan laid down as under :- "No doubt, it has been consistently held in a chain of authorities starting from Durga Chowdhrani v.
29. Jewahir Singh Chowdhri I L R 18 Cal. 23 (PC) up to Bharpura v. Diwan Chand A! R 1940 Lab. 329 unexceptionally followed by the superior Courts of India and Pakistan that the High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact howsoever gross or inexecusable the error may be, yet there is ample authority for the
(1) 1973 SCM R 606 (2) 1971 SCM R 575
(3) PLD 1971 Kar. 738 (4) P D 1975 S 295 preposition that no sanctity attaches even to a concurrent finding of fact based on misreading or misrepresentation of evidence as this would clearly bring the case within the scope of clause (c) of section 100, C. P. C."
30. ' In Mohammad Irshad and 4 others v. Sardar Khan (1) a decision of Lahore High Court, reliance was placed on the aforementioned decision of the Supreme Court in Mst. Bibi Jan v. Habib Khan and another and it was held that if the conclusion arrived at by the lower appellate Court on a finding of fact is found to be arbitrary, without basis and illegal, such finding of fact can be disturbed in 2nd appeal. Similarly, in a recent decision of this Court in Mohammad Saeed v. Muhammad Sharif
(2) it was held that exercise or non-exercise of discretion by Courts below can only be interfered with in 2nd appeal if Courts below acted perversely or against settled principles of law.
31. ' In another recent decision of this Court in Hafiz Haseen Ahmed v. Choudhry Fazlur Rehman (3) where alleged alterations by tenant/respondents or acts likely to impair value or utility of building were not likely to be proved by evidence on record and the finding arrived at by the 1st appellate Court was in accord with the evidence on record, the aforesaid finding of the 1st appellate Court was upheld and appeal against it was dismissed.
32. In view of the circumstances stated above it is apparent that the con- current findings of the learned Rent Controller and the learned District Judge are due to misconception of law inasmuch as it was their duty to make a thorough scrutiny of the evidence on record to find out whether it could be said that the alterations and additions if any had in fact resulted in material impairment of the value and utility of the building. The aforesaid findings are therefore, not legal and proper.
33. The appeal is accordingly allowed and the aforesaid impugned orders set aside, with result that the application for ejectment of the appellant is dismissed.
(1) 1981 CLC 124 (2) 1981 CLC 254
(3) 1982 CLC 135