1. ' All Muhammad filed an application for ejectment on the ground that the premises is required for bona fide use and occupation of his son and that Ghulam Ali the tenant at the relevant time, has made alterations and additions which has materially diminished the value and utility of the building. The claim was denied by Ghulam Ali and the Controller by the impugned order dismissed the application. All Muhammad and Ghulam All died during the pendency of this appeal and their legal heirs have been brought on record as the appellants and respondents. On issue relating to raising unauthorised construction, the appellant has alleged that in the month of February, 1973 the respondent without the consent and permission of the landlord removed the boundary wall and railing lath' of the roof surrounding the small pillar and made certain additions and alterations and thus impaired the utility of the premises. It was further alleged that it was in violation of K.M.C. Rules, and was demolished on 14-4-73. The respondent denied these facts and stated that the railings was very old and damaged and was month eaten. In spite of the fact that the terrace and the gallary and wall required repairs the appellant did not carry out repairs, however on pursuation and pressure brought on him, it was partly repaired. He further pleaded that the notice issued by K.M.C. was a maneavoured one. In the support the appellants examined Hussain and Murtaza, the sons of the landlord All Muhammad. Hussain stated that the respondent had constructed unauthorised construction over the roof in February, 1973 which was demolished by K.M.C. Murtaza stated that the respondent had constructed an unauthorised room on the terrace and at appellant's instance K.M.C. demolished it. The respondent again wanted to construct the same when the appellant filed suit and obtained an order of injunction against him.
2. ' The building consists of ground floor, first floor and second floor. The second floor has been rented out to the respondent. The stair case leading to the terrace passes through the first and second fl cr. The objection of the appellants seems to be that on the terrace the respondent has raised walls by removing the railings and thereby converted it into a room. Although the allegations have not been made in such specific terms, if the evidence of Hussain and Murtaza is read together one gets the same impression. The terrace is above the second floor and it is not the case of the respondents' that it is included in their tenancy. The construction made by the respondents was unautho rised and for that reason K.M.C. served a notice on the respondents describing the unauthorised construction as follows:- 'Erection of walls with cement blocks, after removal of old "jali" under stair case tower on terrace of the building.'
3. ' This shows that the removal of railing (jali) and erection of wall converted the space under the stair-case tower on the terrace into a room. This was demolished by K.M.C. In a letter (Exh.6) written by the respondent to K.M.C. it was complained that as the terrace was in a deteriorated condition and wall was in a bad shape the landlord was asked to carry out necessary repairs and replacement, but he repaired the covering over the roof and plastered it with cement-Only 2 out of wooden railings were replaced, and he had refused to replace the other two and stopped the repair work. From this letter it is clear that the appellant had not constructed the walls, because he had only replaced two railings and left the .work incomplete. Therefore, the construction of the wall would have been the act of the respondents for the purpose of converting the terrace into a room.
4. It is unthinkable that the appellant would make such a construction and then complain to K.M.C. for its demolition. I am therefore convinced that the respondentlA had made unauthorised construction and alteration.
5. ' The question is whether it has materially altered the value and utility of the building. Before dealing with this aspect of the case it would be proper to dispose of the objection of Mr.Syed Inayat Ali the learned counsel for the respondents who has contended that as no unauthorised construction was made in the premises let out to the respondent, the provision of section 13(2) (iii) of Sind Urban Rent Restriction Ordinance 1959 cannot be pressed in service. According to the learned counsel unless some act has been committed within the demised premises which impairs its value and utility, the landlord cannot file an action for ejectment. The relevant part of section 13(2) (iii) reads as follows:- '(iii) The tenant has committed such act as are likely to impair materially the value or utility of the building or rented land.'
6. 'A close scrutiny of this provision makes it clear that it contemplates such act on the part of the tenant which is likely to impair materially the value or utility of the building. It does not contemplate that the complained act should have been committed within the building or rented land. It is' only the effect of such act on the building which is relevant B for consideration. If the act of the tenant wherever it may have been committed materially impairs the value and utility of the building the landlord will be entitled to seek ejectment. lf without reasonable excuse a tenant erects a wall in the adjacent vacant land in such a manner that it closes the doors and windows of the building then even though such wall has been erected outside the building on a land not rented out to the tenant it will materially diminish the value and utility of the building, and will thus actionable under this provision. In the present case, the unauthorised construction was made on the terrace, which is a part of the entire building though not let out to the respondent. Converting a terrace into a room was completely unauthorised and would have put the appellant to penal action by the Municipal Authority. Mr. Daudpota the learned counsel for the appellant has also contended that the terrace was used for keeping Alam and prayers during Moharram as the building is adjacent to Kharadar Imam Bargah. Therefore, the unauthorised construction has materially impaired the utility of the building. The learned Controller has observed that as the walls and unauthorised construction has been demolished, the cause of grievance has been removed and no action can be taken against the respondents. The provision of law does not contemplate that at the time when ejectment case has been filed the wrong should be a continuing one. If an unauthorised construction has been made which materially impairs the value or utility of the building then even if it has been subsequently removed by the tenant, it does not obsolve him from an action under this provision of law.
7. ' The next ground for ejectment is that the premises is bona fide and in good faith required by the appellants. Hussain has stated that he is living in a rented house. According to him there are 17 members of his family including himself, his father, mother, three sisters, three wives of his brothers and 5 children, who are residing in a rented house. At the time when his statement was recorded his father All Muhammad was a heart patient but during the pendency of the appeal he has expired. In the ground floor of the disputed building'one son of All Muhammad namely Murtaza is residing in a single room. Murtaza has testified that he has two children out of whom one daughter has blood cancer and he is residing with his family in one room on the ground floor. In the cross- examination Hussain admitted that his eldest brother is in Kuwait with his family and that they own several buildings in Bombay Bazar and*Soldier Bazar. From the evidence on record, it is clear that Murtaza is residing in one room on the ground floor which is not sufficient for his family members.
8. Hussain is residing with his mother and three sisters in a rented house and they require the second floor for their residence. The learned Controller was impressed by the fact that All Muhammad father of the appellants was a heart, patient and could not climb upstair, and therefore, could not live on the second floor. This disability was only in respect of Ali Muhammad who could have been accommodated by Murtaza on the ground floor and he could have shifted himself to the second floor. In my event although All Muhammad has died, the appellants have made out a case for their bona fide use and occupation.
9. ' Mr. Syed Inayat All stated that according to Hussain the appellants possess another building in Bombay Bazar which is 2 or 3 furlongs away from the building in their occupation. There are three floors in it with 7 residential tenaments and two shops. The learned counsel contended that as the appellants possess this building they do not require the disputed house. If Hussain's statements is read with reference to the context he never meant that he is in occupation of that building. He only meant that appellants own that building. The word possess as recorded by the Controller has been used in the sense of ownership as he has further stated that 'this is 2 or 3 furlong away from the building in our occupation.' The contention of the learned counsel for the respondent is not well- founded. The appeal is allowed and the impugned order of the learned Controller is set aside. The respondents are directed to vacate the disputed premises on or before 31-12-1984.