1. ' This appeal is directed against the order, dated 7-12-1981 whereby the ejectment application No. 3452 of 1976 was allowed and the appellant was directed to hand over the vacant possession of the disputed premises to the respondent within 60 days from the date of the order.
2. ' The facts which give rise to this appeal are that under lease agreement, dated 31-7-1973, the appellant is the tenant of respondent with respect to a double-storied building on plot No. B/11, measuring 1400 sq. yards situated in K.D.A. Scheme No. 1, Karachi at a monthly rent of Rs.1,750 plus a sum of Rs.50 towards water charges. The respondent filed ejectment application on the ground of
(a) conversion of residential premises into running a School in the name and style of "Spring Field School", (b) on the ground of damaging the building and thus impaired the value and utility thereof
(c) the appellant unauthorisedly and without prior written consent and approval of the respondent assigned the tenancy. The appellant resisted the application and denied the allegations of conversion, assignment, damage to property and impairing the value and utility.
3. ' On the basis of the pleadings of the above parties, the learned Rent Controller framed the following issues:--
(1) Whether the opponent has violated the terms of tenancy and has converted residential premises into a commercial one?
(2) Whether the opponent has caused such acts which has impaired materially the value and utility of the premises?
(3) Whether the opponent has caused nuisance for residents of the locality?
(4) What should the order be?
4. ' The learned Rent Controller on the basis of evidence produced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties, decided issues 1 and 2 in the affirmative and issue No. 3, as not proved and allowed the rent application, dated 7- 12-1981 on the ground of violating terms of tenancy and conversion of residential premises into a commercial one and causing such acts which impaired materially the value and utility of the premises vide his order, dated 7-12-1981.
5. ' The appellant being aggrieved by the order, dated 7-12-1981 of the XII Senior Civil Judge and Rent Controller, Karachi, has preferred this First Appeal on the grounds mentioned in the memo. of Appeal.
6. ' Mr. Zafar Hadi Shah, the learned counsel for the appellant has raised the following contentions:--
(a) Whether the respondent has used the disputed premises for purposes other than that for which it was leased out.
(b) The Court below has dismissed the plea of the appellant that the respondent by his conduct has impliedly waived her right to object assignment.
(c) The Court below has mis-read evidence about impairing the value and utility of the premises.
7. ' On the other hand Mr. Khalilur Rehman learned counsel for the respondent has contended that the appellant assigned the tenancy without her consent. He has further submitted that there was evidence on record to prove that the appellant not only assigned the tenancy but damaged the property.
8. ' I have considered the submission of the learned counsel and perused the evidence adduced by the party.
9. ' Adverting to first contention of the appellant that from the inception of the tenancy, the premises in question is being used for "Spring Field School". The respondent in her application stated that the appellant obtained the lease of the disputed premises for residential purposes in her own name but has unauthorisedly and without prior written-consent converted the user of the disputed premises and started running a school therein under the name and style of "Spring Field School".
10. The appellant filed her written statement and denied the allegations. The respondent's husband and attorney stated in his deposition that the disputed premises was let out to the appellant for residential purposes. The appellant converted the premises and is running school in the name and style of "Spring Field School". The appellant converted the premises and running school without her consent. It is pertinent to produce the relevant portion hereunder:-- "I had objected on which the opponent had told me that she is running the school temporary as the premises are not suitable for that purpose and as soon as she gets suitable premises she would vacate the disputed building. In year 1969 the opponent had told me that she had applied to K.D.A. for allotment of plot No. S.L.5 an aminity plot for school in the same locality. The area of the plot is about 10,000 square yards. In 1970 the opponent informed me that she has been alloted the above plot and she is going to get school constructed over it and would have as soon as the building is complete. The opponent got the plot constructed but did not use the building for school purpose, therefore, K.D.A. sent show-cause notice to her and copy to the applicant."
11. ' The husband of the respondent denied the suggestion that the appellant sought permission from him for running the school. The appellant in her deposition before the Court said that she had taken disputed premises on rent from the respondent. She in her deposition stated that she did not take the house for her residential purposes but for running a school as she was already residing in her house. Quite apart this position, I have examined the original rent deed Exh. A/2. The learned counsel for the appellant does not dispute the position that residential building cannot be changed into a non-residential building or a school without the permission in writing of the Rent Controller. The learned counsel for the respondent has invited my attention to provisions of section 11 of the repealed Ordinance 1959. Section 11 provides that no person shall convert a residential building into a non-residential building except with the permission in writing of the Controller. It means that irrespective of any change having been effected therein by the landlord or tenant the same would continue to be residential in character as it used to be before its conversion. Mr. Khalilur Rehman the learned counsel for the respondent has also cited the case of Raja Qurban Khan v. Begum M.M. Sharif and others 1980 SCMR 590 a decision of Supreme Court wherein the Hon'ble Supreme Court repelling the contention of learned counsel for the tenant observed as follows:-- "We are, therefore, in agreement with the concurrent view taken by the two Courts below, as well as the High Court, that in the absence of any permission having been obtained from the Controller under section 11 of the Ordinance in this case, the suit house would continue to retain its character as a house notwithstanding the fact that it was actually being used as an hotel. After all if the pre- emptory mandate of section 11 of the Ordinance is found to have been violated by a landlord or tenant, with the result that a residential building is put to commercial use, how can the Controller be expected to take notice of the said change except for the purpose of section 19 of the Ordinance to proceed against a person for having contravened the provision of section 11 thereof."
12. ' Mr. Khalilur Rehman has also cited case of PLD 1981 SC 578. The Hon'ble Supreme Court held at page 581.
13. "The lease deed is silent on the question as to use to which the bungalow was to be put, but it is admitted that shortly after it was given on rent the petitioner installed a printing press in it. All the Courts have given a concurrent finding that the bungalow was required by the landlady for her personal use. The fact that it is a residential bungalow is evident from the fact that it is situated in a purely residential area of Gulberg (Lahore) and the fact that respondent No. 2 actually resides in the first floor of that bungalow". "As for the legal contentions, on which the leave was granted, the matter has been set at rest by the judgment of this Court in Raja Qurban Khan v. M.M. Sharif."
14. ' The dictum laid down in the above cases by the Hon'ble Supreme Court are applicable to the facts of this case.
15. ' The provisions as contained in section 13(2)(b) of the repealed Ordinance and section 15(2)(iii)(b) of the 1979 Ordinance also support the view taken above.
16. ' Adverting to the second contention of the learned counsel for the appellant that the Court below has dismissed the plea of the appellant that the respondent by her conduct has impleadly waived her right to object assignment. The respondent in her Rent application stated that the appellant had obtained the lease of the disputed premises for residen tial purposes in her own name but has unauthorisedly and without prior written permission assigned the tenancy in favour of the school run under the name and style of "Spring Field School". The appellant in her written statement denied the same and stated that from the inception of the tenancy, the premises in question is being used for the 'Spring Field School'. Lease agreement Exh. A/2 on the record shows that the disputed premises were let out to the appellant in her individual capacity. Clause (2)(e) of the agreement clearly provides that the appellant will not assign, sublet or otherwise part with the demised premises or any part thereof without the written consent of the lessor. The respondent stated in her rent application and as well as in her deposition stated that the disputed premises have been assigned by the appellant without permission in writing of her as stipulated in the lease agreement. In para. 4 of the written statement it is claimed that from inception of the tenancy, the premises in question is being used for the 'Spring Field School'. The appellant to a question in cross- examination stated that the tenancy agreement is in her name Al-Akhtar Educational Society is running the 'Spring Field School' of which she is the principal in the disputed premises. She further stated that she did not take any permission in writing from the landlady Mst. Khalilur Rehman, the learned counsel for the respondent has placed reliance on the case of Manek J. Mohed and another v. Shah Belram and others PLD 1974 SC 351 wherein it was held that in case that a person holding lease hold rights in his own name and subsequently assigns them to a firm or a private limited company consisting of his own family members, it cannot be said that no change had taken place in the status of tenant and the case could be one of subletting or assignment of leasehold rights.
17. ' In the case of Messrs Premier Mercantile Service and another v. S.M. Younus and 2 others PLD 1982 SC 75. The Hon'ble Supreme Court while repelling the plea observed:-- "A distinct legal entity different from the firm had come into existence. It was so whether the veil of incorporation was lifted or not. Such a legal entity had altogether different rights and liabilities with respect to third parties including the landlords. Such a change could not be unilaterally brought about by the tenant so as to transform their very legal existence in a manner to affect their liability.
18. The landlords could object. They could make it a ground for proceedings under the Rent Laws. Such a tenant as had permitted itself to be dissolved and then effected and substituted by a different legal entity could be ejected for his act alone, having not taken the landlord into confidence."
19. ' The dictums laid down in the above cases are applicable to facts of this case.
20. ' Adverting to the last contention of the learned counsel for the appellant that the respondent has not proved that the appellant caused damage to the disputed property. The respondent stated in para. 5 of the Rent Application that the appellant had also very badly damaged the disputed premises and thus impaired the value and utility thereof. The electrical fixtures, bath room fixtures, doors, window shutters, grills, compound galls, passage grills and kitchen and painting have been completely damaged. The servant quarter has been converted into kitchen and its utility as a living room has totally vanished being badly damaged.
21. ' The appellant denied contents of para. 5 of the Application and stated the appellant has not damaged any thing. The attorney of the respondent in his deposition stated that the appellant caused damage to the disputed property and thereby has impaired its value and utility. He further deposed that he got the premises surveyed by a licenced Architect and produced survey report as Exh. A/4. To a suggestion the attorney stated that it is not a fact that no damage has been carried by the appellant. To a further suggestion he stated that it is also not a fact that the value and utility of the premises have not been materially impaired by the appellant. The respondent also examined Abdul Ghafoor an employ of licensed Architect Ali Muhammad Memon. The witness stated that the architect died and he is aware of his handwriting and after seeing report Exh. 4/4 stated that it bears the signature of the architect.
22. ' The learned counsel for the appellant has argued that in the present case Mr. All Muhammad Memon, who had prepared survey report was dead and was not available for evidence as such the survey report Exh. A/4 stands unproved and cannot be relied upon as substantive piece of evidence. The argument, though attractive, is not acceptable in law for more than one reason.
23. Firstly the report was exhibited without any objection. Secondly section 32 of the Evidence Act provides that statement, written or verbal, of relevant facts made by a person who is dead, or cannot be found, or who has become incapable of giving evidence are themselves relevant facts.
24. Subsection (2) provides that when the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, in the discharge of professional duty; written or signed by him.
25. ' Thus, the survey report prepared by him who has since died; in the ordinary course of business and in the discharge of his professional duty are relevant facts and are admissible in evidence.
26. ' Thus in the present case Abdul Ghafoor (A.W.2) has proved the survey report to be signed by late All Muhammad Memon. The survey report thus proved as substantive evidence in proof of the nature of damages to the disputed premises. Apart from this by consent of the parties I appointed Mr. Muhammad Kamal Khan, Advocate, as Commissioner in the case. The Commissioner after inspecting the disputed premises, submitted his report which is brought on record by consent of the parties.
27. ' According to the aforesaid report, it seems that the appellant has badly damaged the premises.
28. From the above evidence, it has been proved that the appellant has damaged the disputed premises which are likely to impair materially the value or the utility of the premises in terms of section 13(2)(iii) of the repealed Ordinance or in terms of section 15(2)(iii) C(iv) of the Sind Rented Premises Ordinance, 1979.
29. ' In my view the finding arrived at by the learned Rent Controller is in accord with the evidence on the record.
30. ' In view of the above discussion, the appeal is dismissed with no order as to costs. However, I grant three months time to the appellant to hand over the vacant possession of the disputed premises on the condition that she shall continue to deposit monthly rent in accordance with the Rent Controller's order. In case the appellant will commit any default in respect of the above condition the respondent shall be at liberty to file an execution application immediately on commission of such default.