1. ' This appeal has arisen from the order of IXth Senior Civil Judge and Rent Controller Karachi, dated 31-8-1981 whereby the ejectment application filed by respondent/landlady, Mst. Akhtari Begum was allowed with direction to the appellant/tenant, Muhammad Qasim to hand over vacant and peaceful possession of the premises in dispute to the respondent within 90 days of the order.
2. ' The facts of the case in brief are that the respondent Mst. Akhtari Begum filed an ejectment application on 10-1-1980 seeking ejectment of the appellant Muhammad Qasim from the disputed shop bearing Nos. 1 and 2/230, Commercial area, Latifabad, Karachi on two grounds: namely, first, default in payment of rent for the months of September and October, 1978 and second, making of unauthorized additions and alterations in the premises, impairing the value and utility of the disputed shop.
3. ' The application was resisted by the appellant who denied both the above allegations. He, however, added that with a view to beautify the shop he had laid mosaic flooring in place of original flooring.
4. ' The learned Rent Controller after considering the evidence led by both the parties decided the issue relating to default in payment of rent in the negative. However, he allowed the ejectment application on the ground that the appellant had carried out major alterations and additions without permission of the landlady which had the effect of diminishing the value and utility of the shop. It is against the said order of the Rent Controller that this appeal has been filed. After hearing the learned counsel for the parties the appeal was allowed by short order dated 2-12-1984 for reasons to follow. Following are the reasons in support of the short order.
5. ' The arguments addressed at the bar were confined only to solitary point whether the appellant had carried out alterations and additions in the disputed shop and if so whether the same had impaired the value and utility of the shop. The burden of proving this point was obviously cast on the respondent. His plea in the ejectment application as regards alterations and additions is couched in the following words:- "That the opponent has carried out additions and alterations without the consent and permission of the applicant landlady, most objectionable alteration is that the opponent has raised construction of a small platform (Chabootra) in front of the shop measuring 21' x 9'.
6. ' That the opponent has also impaired the utility of the tenament by breaking the floor of shop 8" deep and that too, without any written permission and consent of the landlady.
7. ' That on 21 September, 1978 the opponent took away the overhead shutter cover of the shop and after breaking the walls further raised construction of a terrace without the knowledge of the applicant."
8. ' In support of the above pleadings the only witness produced on behalf of the landlady is Abdul Aziz, her husband and attorney. In his affidavit in evidence Abdul Aziz has more or less repeated the allegations made in the ejectment application as follows:- "That the opponent furthermore raised construction on a small platform (Chabootra) in front of the shop measuring 2' x 9' without consent and permission of the landlady. I shall produce the copy of photograph at the time of cross-examination. The opponent did not further impair the utility of the tenament by breaking the floor and setting up terrace and shutter without consent of the applicant. These additions and alterations were carried out on 21-9-1978. Hence the opponent is liable to ejectment".
9. ' On the other hand the appellant Muhammad Qasim apart from himself has examined Abdul Razzaq. According to appellant the allegations of the alterations and additions attributed to him are not correct. However it is admitted by him that he has replaced the original flooring by mosaic flooring, and for this change he had the blessing of the respondent.
10. ' As stated above the respondent/landlady's plea as regards additions end alterations as contained in her ejectment application was; firstly that the appellant had constructed a small platform (Chabootra) in front of the shop; secondly that the appellant had broken the floor of the shop 8" deep; and thirdly that he had removed overhead shutter cover of the shop and after breaking the walls had constructed terrace. She has sought to prove these allegations by the evidence of Abdul Aziz, her husband and attorney. However, the appellant has denied that he has made any such alterations and additions excepting the change of flooring of the shop, which he has done to beautify the shop. His evidence finds support from his witness Abdul Razzaq who has stated in his evidence that although he has been seeing the appellant in occupation of the shop for more than 10 years, he has not witnessed any change in the shop excepting the replacement of the original flooring with mosaic flooring. Thus, as for construction of Chabootra and terrace there is only word against word. It is, therefore, difficult to hold that the appellant has raised these constructions. The learned counsel for the respondent submitted that since no question was put to Abdul Aziz the respondent's witness in cross-examination, his evidence with regard to the said two constructions has gone unchallenged and therefore it is proved from his evidence that both Chabootra and terrace were got constructed by the appellant. I am afraid I cannot endorse such thinking. The appellant has not only denied the allegations of raising these constructions in his written statement but has also repeated his denial in his affidavit-in-evidence. Furthermore, he also finds support from his witness Abdul Razzaq who is his neighbouring businessman and .is obviously free from any bias. In the face of such evidence, merely because no question was put to the husband and attorney of the landlady in cross-examination touching on the constructions, that would not mean that the case of the respondent stood proved in relation to the said constructions.
11. I am of the considered view that the respondent has failed to prove that the appellant was responsible for construction of Chabootra and terrace.
12. ' Coming to the change brought about in the flooring of the shop the appellant has no doubt admitted having replaced the original flooring by mosaic flooring. His explanation for such replacement was that it was done in order to beautify shop. Although he has also added that the change in the flooring was made with consent of the respondent yet there is nothing to indicate that the respondent had given his consent for the replacement of the flooring. The question arises if unauthorised alterations made in the flooring would render the appellant liable for eviction from the shop. To answer this question it will be advantageous to reproduce the relevant provision of Sind Rented Premises Ordinance 1979 (hereinafter referred to the said Ordinance). It reads as under:- " 15(2) The Controller shall make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that-- (i)
13. (ii)
(iv) The tenant has committed such acts as are likely to impair the material value or utility of the premises; (v (vi)
14. (vii)
15. ' It would appear from the above provisions that unauthorised alterations and additions by themselves provide no ground to the landlord for seeking ejectment of his tenant. It is essential to show that any such additions and alterations are likely to impair the material value or utility of the premises and then alone the ejectment can be sought on the ground of such additions and alterations. In the instant case the only act which has raised controversy between the parties is replacement of the flooring. It has been admitted by the tenant that he has replaced the original flooring of the shop by mosaic flooring. The question arises if the said replacement of the flooring has in any way impaired the value or utility of the shop. It was urged by learned counsel for the appellant that on the contrary the said change has the effect of elevating the status of the shop, as it will not only look beautiful but the new flooring will guarantee its added strength and durability.
16. ' Reverting to the affidavit of Abdul Aziz the husband and attorney of the landlady, there is nothing in it to show that the said change in the flooring has impaired the value or utility of the tenament. It appears from his affidavit that this witness has only referred to breaking of floor but has deliberately omitted to say that breaking was done for replacing the existing flooring by mosaic flooring. It is also not challenged that mosaic flooring in comparison to other flooring has a better look and is more durable. This being so, even if the appellant is charged with carrying out the alterations in the flooring, the said alterations cannot be held to have impaired the value and utility of the shop. Consequently it cannot be used as a ground for eviction of the appellant.
17. ' The learned counsel for the appellant has placed reliance on Muhammad Mirza v. Muhammad Hussain Gani PLD 1983 Kar. page 162 wherein the learned Single Judge of this Court held: "By removal of an old door and replacing it with a Lew door and lintel above it, no impairing of the value and utility of the building could ever be conceived.
18. ' The word "impair" has been defined in the Ballentine's Law Disctionary (3rd Edn. 584) as under:- 'To make worse, to diminish in quality, value, excellence or strength; to deteriorate'
19. ' 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."
20. ' The other authority cited by the learned counsel for the appellant to re-enforce his arguments on the same point is reported as Haji Sh. Fazal Elahi v. Sh. Muhammad Ayub and others 1982 SCMR 8.
21. In this case the landlord failed to discharge onus of proof cast upon him to establish the allegation that tenant has caused damage to the property by using bath rooms and laterines in such a way that water leaked towards lower floors. Therefore, the conclusion that condition of the building had materially deteriorated was held as not correct.
22. ' The third case on the same point that has been cited on behalf of the appellant is from Indian jurisdiction. It is reported as S.M. Savitri Devi v. U.S. Bajpai and another AIR 1956 Nag. 60 wherein it was held:- "In the instant case the petitioner has raised a temporary shed which did not alter or demolish any part of the house except a portion of the front compound wall. So far as the erection of the temporary shed is concerned it cannot be said to be an act of waste in the sense in which it is understood in law. In Jones v. Chappeal 1875 20 Eq 539 (A), it has been held by Sir G. Jessel, M.R. that an erection of a building made by a lessee on the demised land without the consent of the lessor does not amount to an act of waste. The question of waste, therefore, will only arise in connection with the part of compound wall that has been demolished."
23. 'It appears from the above authorities that additions and alterations made without consent of the landlord alone cannot be the ground for ejectment of the tenant unless it is shown further that such additions and alterations had damaged the property inasmuch as the value and utility of the property has been impaired by reason of such changes. Since the only change of flooring made in the instant case is not shown to have adversely affected the value or utility of the disputed shop, the appellant cannot be evicted from the shop on the basis of such change.
24. ' In view of the above findings the appeal was allowed with on order as to costs.