' This appeal is directed against the order passed by VIllth Senior Civil Judge/Rent Controller Karachi, dated 19-10-1980 whereby the application for ejectment filed by the appellant against the respondent was dismissed.
2. The appellant has alleged that there has been wrongful conversion of the use of the premises from residential to commercial and that unauthorised construction had been made by the respondent in the structure of the premises and that a Bhatti (furnace) had also been made in the premises. The respondent had denied the allegation of conversion of use and stated that from the very beginning he was using the premises for Dawakhana as a Hakim since 1947 and that he made two rooms in the open space with permission of the appellant and that no Bhatti had been constructed but only Sui gas connection had been taken with the permission of the appellant for the preparation of medicines.
3. On behalf of the appellant, her husband, Haji Abdullah examined himself and stated that premises had been rented out since 1974 for residential purposes but opponent had converted the same into Dawakhana and is preparing medicines. He stated that previous opponent used to live with his family when the premises were let out. He denied that Dawakhana existed since beginning.
He asserted that it was done without his consent. Further stated that the opponent had shifted his family to North Nazimabad. He asserted that opponent had constructed two rooms in open space without his consent and a Bhatti and that it has materially impaired the value of the premises and that he has sent notice to opponent in 1970. He stated that opponent started Dawakhana in 1969 and not in 1947 and denied that he did not object to the same. He admitted that he had filed the ejectment case after suit was filed by the opponent. He admitted that he had not personally visited the disputed premises. He further admitted that no action had been taken by the City Deputy Collector or K.M.C. in respect of the unauthorised construc tion. He denied that he had filed the case to increase the rent. He explained that he had seen the rooms constructed by the opponent from outside. He denied that the opponent had come to obtain permission for Sui gas. The notice sent by.appellant on 18-8-1970 had stated that for some time past the opponent had started converting premises for commercial purposes and installed Sui gas burner and Bhatti in the open space for medicines and constructed two rooms in open space and that such construction was illegal to result in forfeiture of the appellant's plot by City Deputy Collector on account of contravention of terms and conditions of lease. Haji Abdullah had filed copies of plaint, writtten statement and orders in Suit No. 173/70 filed by respondent For declaration and permanent injunction on 27-1-1970 where it was alleged that the respondent had constructed two rooms with consent of the appellant in open space and one room in the front balcony and covered with iron sheet and same was in existence for 20 years.
' The respondent in his statement stated that he was running Dawakhana in the premises since from beginning and he produced income-tax documents of 1950, 1951, 1952, and 1954 for the said purpose. He also produced K.E.S.C. bills in his name and bearing the name of Nizami Dawakhana in respect of the same premises for June, 1956. And also record of telephone bill for 1954 showing that Nizami Dawakhana had a telephone in Khadija Manzil. He stated that there was no furnace in the premises and he had got Sui gas installed for preparing medicines with permission of the appellant. He further stated that he had not made any addition or alteration in the premises in question but there is wooden structure which could be removed at any time. He stated that the authorities had not served any notice upon him. In cross he admitted that in 1948 he was living with his family in the disputed premises but now he has shifted. He admitted that he had not taken any written permission from the appellant in respect of construction.
4. On the basis of this evidence the Rent Controller came to the conclusion that the existence of furnace in the premises was not proved as the appellant had not produced any positive evidence in that respect. Appellant's counsel has not been able to point out any evidence which could prove the existence of furnace in the premises. He simply stated that taking of Sui gas connection was admitted by the respondent and therefore, I should presume that the floor had been dug out for the purpose of preparing medicines. However, I cannot make such a presumption and it was for appellant to prove the same. The appellant's witness had not even visited the premises and therefore, the finding of the Rent Controller in respect of the non-existence of furnace has to be maintained.
' In respect of the conversion of the premises for which no issue was framed but evidence was recorded from both sides the Rent Controller has come to the conclusion that at least from 1950 the respondent was having Nizami Dawakhana in the said premises. He has relied in this respect upon the documents produced by the respondent which I have referred to earlier.
5. Since the appellant witness had stated that Dawakhana was started in 1969 while the respondent had stated that he had been running that Dawakhana from the very beginning, therefore, there was word against word to this extent. But the word of the respondent was fully corroborated from the documents produced by him as Exhs.3-A/1,2 and 6-E/2 which conclusively show that the respondent has been having a Dawakhana in the same premises since 1950 onward.
These documents are starting from 12-4-1950 and go upto 1963. Since these are official documents, therefore, the word of the respondent has got more weight and consequently it is proved beyond doubt that the respondent had his Dawakhana in the premises from 1950 and thus the case set up by the appellant in respect of the conversion of residence into commercial premises in 1969 is completely untrue.
6. That the appellant has neither produced any lease deed to show that there was any agreement between the parties that the premises in question will not be used for any purpose other than residence. Mr.Fazal Bhoy had merely relied upon the allegation of appellant made in ejectment application that the entire building was residential and that it was not squarely denied by respondent in written statement. The respondent had of course denied the same by alleging that from the very beginning he was running his Dawakhana in the premises. The version of the respondent seems to be more correct in this respect. There was not even any suggestion made by the appellant to the respondent in cross-examination that he had no right to run a Dawakhana in the premises. Moreover no conditions of tenure had been produced in the case by the appellant to show that running of Dawakhana by the respondent was against the conditions of the case which had been granted to the appellant by the authorities. Consequently, I am of the view that the B appellant has failed to establish that there has been any unauthorised conversion by the respondent in the use of the premises.
7. The Rent Controller has come to the conclusion that the alleged unauthorised structure has been in existence for 20 years or so before the application was filed by the appellant. In this respect I may point out that nowhere in the evidence the witness Abdullah had stated as to when the premises were constructed by the respondent. However, Mr.Fazal Bhoy submitted that the burden was upon the respondent to show that he had constructed the premises in 1950 and that he had taken due permission from the landlord. In this respect the Rent Controller has relied upon the statement of the respondent and there is no particular reason as to why the said statement should not have been believed in view of the fact that the appellant had made a clear statement when he stated that the conversion in use of premises had taken place in 1969 while the Government records show that Nizami Dawakhana was in existence in the same premises since 1950.
Appellant's counsel contended that the raising of structure in 1950, had not been supported by any supporting evidence. This is correct. But the same is true of the evidence of the appellant's side who had not given any fixed date of the said construction, and therefore, it was open to the Rent Controller to believe the respondent in this respect particularly when the statement of respondent in respect of commercial use of the premises has been found to be correct. It may be that the respondent needed the wooden structures in the open space from the time when he had started the Dawakhana and therefore, it is not wrong to believe that the structures could have existed from very near the beginning of tenancy. And in this view of the matter the raising of protest by the appellant in 1970 about a structure which has existed more than 20 years earlier would show that the objection was not bona fide and that when the structure was raised the same must have been done with the implied consent of the appellant otherwise she or her husband would ;have certainly raised objection to the same.
8. Counsel for the appellant contended that raising of the structure of two rooms in the open space and one room in front balcony has been admitted by the respondent and, therefore, the same should be treated as having impaired the value of the premises. In this respect the learned counsel relied upon PLD 1978 Lah. 347 (351) where a learned Judge of the High Court, as he then was took notice of material changes in the structure of the building carried out by the tenant and held that the same had materially impaired the utility of the building. But in that case permanent structures have been raised by the appellant including the construction of walls, foundations for X-Ray machines and R.C.C. structure of a laterine at an odd place and therefore, the High Court came to that conclusion after considering the evidence produced in the case. But in the present case before me it was temporary structure and except for the solitary sentence used by the witness of the appellant that value of the premises had been impaired there is no other reason: expressed for the conclusion reached by the appellant. After. all it is not an arbitrary statement of a landlord which could be taken as absolute truth. The fact that the value of premises has been impaired by a particular structure has to be proved on record by witnesses who have to state clearly as to in what manner the value has been diminished. In this case there is no such evidence. In fact the first basis of the appellant in August, 1970 was that the structure would result in the forfeiture of his lease which has not been proved at all. He had never stated in the said notice that basically the said structure had impaired the value of the premises and, therefore, the statement in Court by the appellant that the value of the premises had been impaired will be looked at in the background of the allegations contained in the notice of 18-8-1970. And I must say that the lease of the appellant was never sought to be cancelled by any authority on this ground, therefore there was hardly any basis laid by the appellant's counsel which could show that there had been any impairing in the value.
9. Moreover the respondent had stated in his statement that it was only a wooden structure that he had raised, of course covered by iron sheets, and therefore it was not a permanent structure and could have been removed at any time. During the course of the arguments I was of the view that the respondent should have removed the said wooden structure when the appellant had taken serious objections to the same in 1970 but the question is whether there was an initial justification of the said structure or not. And it appears to me that in the circumstances of the case there was an initial justification for the structure inasmuch as they were probably made about 20 years before the ejectment application and were never objected to by the appellant earlier.
10. In 1982 SCMR 8 where the premises had been used for nurpose of a hotel from very beginning and such fact was within the knowledge of the landlord and no exception had been taken to it by him and thereafter certain bathrooms had. been constructed by the tenant in the premises it was held by the Supreme Court that such structures could be regarded as suitable changes in conformity with it's intended use and that it could not be regarded as ipso facto having impaired the value of the premises. It was further held that use of hotel was from very beginning and such use was within knowledge of landlord and no exception to it had been taken by him, therefore, the bathrooms and 'latrines, as such were necessarily constructed with knowledge and consent of landlord and could not be said to have materially impaired utility of building. The observations of the Supreme Court in the cited case are attracted to the facts of this.case and with respect I follow the same and hold that the Dawakhana in question having been in existence since 1950 within knowledge of appellant and without any objection from him, the temporary structure was made by respondent with knowledge of appellant and in conformity with the use of the premises as Dawakhana and it had not as such materially impaired the utility or value of the premises.
11. Moreover actual impairing of the value of utility of the premise has not been proved in any manner by the witness of the appellant who did not even visit the premises from inside and did not give any statement that he had seen any digging of the floor or ground floor or that there was any diminishing in the light or air of the premises on account of the said structure.
12. I am, therefore, of the view that the appellant has failed to prove its case and, therefore, the order of the Rent Controller is found to be in order. This appeal was dismissed with costs by short order dated 20-1-1985. These are the reasons for the same.