' This second appeal has challenged two concurrent judgments of XV Civil Judge and Rent Controller, Karachi, and of III Additional District Judge, Karachi respectively, dated 24-9-1979 and 16-2-1982 whereby the application for ejectment of the respondent from the premises in dispute was rejected and the .
2. The relevant facts are that shop on ground floor in Central Commercial Area, Block No, 2 was rented out by the appellant to the respondent on 23-1-1976 by an agreement of lease where the measurement of the shop was given 21' x 22' and it was provided that no damage to structure, construction or elevation of the building was to be caused by the tenant under any circumstances and the lock of the tenement was not to be changed and no additions or alterations were to be made without prior consent of the appellant. The rent was agreed to be Rs,675 per month and Rs,65,000 were deposited with the appellant by respondent as security which were refundable on the termination of tenancy. It had also been provided in the said agreement that the landlord shall deliver physical possession of the shop to the tenant on its completion. The agreement of lease was for a period of 11 months.
3. On the same day of tenancy a request was made in written by the respondent to the appellant to the following effect:- "I feel it necessary to reduce the plinth and remove partition of the said shops which may kindly be granted. It is assured that the requisite alteration shall be done in view of the approved plan, without causing any damage to the structure of the building. It is further requested that I may also be permitted to cover Verandah at my own risk."
' This request in writing bears the endorsement of appellant under the following words:- "Permission granted."
4. On 6-7-1977 the appellant filed an ejectment application against the respondent on the ground that opponent had caused serious damage to elevation of the tenement, removed expensive mosaic flooring and made permanent alteration in the shops which impaired materially the value and utility of the tenement and he has included adjacent corridor of 7' x 22' in the shop in utter disregard of K.M.C. Rules and caused damage to underground water-tank and has fixed exhaust fan on the side of the adjacent shop and placed a neon sign board. It was further alleged that respondent had defaulted in payment of rent by issuing cheque of January, to March, 1977 with a date of 31-1-1976 and hence the same was not collected from the bank. The respondent resisted the ejectment application and alleged that the building was handed over to him in incomplete position in respect of structure, finishing, electric fitting etc. And that the respondent had carried out the construction at his own expense with the permission of the respondent, oral as well as in writing. The shelters are there in the same manner and that corridor was included with the permission of the appellant and that Rs,75 per month was the rent for the same separately.
Causing of nuisance by fixing excess fans was denied. The default in payment of rent was also denied and it was claimed that putting of the year 1976 in place of 1977 was not intentional and that he had asked the bankers to honor the said cheque when he was informed of the mistake and that he had also sent another pay order for April to June, 1977 which was returned by the appellant.
5. The issues of default in payment, material impairment of value and utility of the premises and causing of nuisance to occupants of residents of locality were framed. The appellant examined himself in support of the averments in the application for ejectment and produced the agreement of lease. In cross-examination he admitted that he had signed over the permission sought by the respondent in respect of reduction of plinth and covering of Verandah. The respondent examined himself and also examined his father Hashim and another Hashim in support of his case and asserted that whatever he had done had been done in consultation and with permission of the appellant and that he had not impaired the value of the building nor caused any nuisance.
6. The learned Civil Judge himself inspected the shop and held that the shop had been finished in a sophisticated manner and that the plinth level of the shop had been reduced to 1.8' as compared to the other shop and that the whole shop is a big shop. The Civil Judge came to the conclusion that there was no default as the cheque in question had been given in time but by clerical mistake year of 1977 had been written as year 1976. The mistake was not noted even by the appellant and they sent the cheque for encashment in March, 1977 only.
' In respect of the unauthorized alterations in the shop he came to the conclusion that there was no impairing of the value of the shop and in any case the same had been carried out with the permission of the appellant. He, therefore, dismissed the application.
7. The appellate Court concurred with the findings of Rent Controller and held that no default had been committed in payment of rent. It was observed that payment of rent had been accepted by the appellant on the previous occasions by cheque.
' In respect of the additions or alterations the appellate Court held that the permission letter clearly shows that the respondent was permitted to do certain additions and alterations and, therefore, Verandah was included or covered with permission of the landlord and that the agreement of lease and the permission letter were to be considered together. He took note of the fact that the shop had been finished with modern type of material. He further held that the appellant had failed to prove any damage caused to the property in question and that no evidence had been led that the fixing of exhaust fan was causing any nuisance in the locality.
8. Syed Mahbubul Wahab Hazratji, learned counsel for the appellant has very strongly urged that the respondent had changed the structure of the building inasmuch as he had damaged the pillars by reducing the level of the floor by 1/' and that the shutters which were fixed in the shop at the point of its junction with Verandah have been removed from the said place and have been brought to the end of the Verandah and thus the elevation of the building has been seriously impaired. He further submitted that the covering of the Verandah by the respondent by the shutters and wall was against the very terms of the lease because an area of 21' x 22' has been leased out to the appellant whereas an area of 7' x 22' had been illegally increased and included in the said shop by covering of the Verandah by the respondent. Finally the learned counsel had submitted that the underground water-tank had been damaged by reducing the plinth level of the Verandah. Counsel had also argued that the writing of year 1976 in the cheque issued by the respondent on 31st January, 1977 was a fraudulent act on the part of the respondent designed to deprive the appellant of the rent. '
9. The findings of the two Courts below are concurrent to the effect that the miswriting of year 1976 on the cheque was by mistake only and was not designed to be fraudulent. I am bound by the said concurrent findings. The default was alleged to be in the payment of rent from April, 1977 to June, 1977 because the application was filed on 6-7-1977.
' I may state here straightaway that the original agreement being for 11 months only had come to an end on 22-12-1976 and thereafter it was statutory tenancy between the parties that continued and hence rent of April, 1977 could be paid by the respondent on or before 30th June, 1977 and the rent of May should be paid by 30th July, 1977. There was only one month's default and that too very technical in the payment of rent even if the cheque issued by the respondent was disregarded, for which there was no justification. However, the appellant had with him a sum of Rs,65,000 as a deposit which was refundable to the respondent at the time of the termination of tenancy and, therefore, on 30th June, 1977 the appellant was owing Rs,65,000 to the respondent and hence the rent of April, 1977 could have been easily adjusted out of the amount lying with the appellant on account of the respondent. Consequently, no default had taken place on 6-7-1977 or at the most it was a technical default which did not justify ejectment. Reliance is placed upon PLD 1980 SC 298.
10. Even in respect of the alterations and additions to the premises or the reduction of the plinth level and alleged damage to the underground water-tank I am bound by the concurrent findings of the two Courts below to the effect that additions and alterations had been done after obtaining permission of the same from the appellant as these are findings of fact. Even otherwise the request of the respondent and the permission granted by the appellant on the said letter have been reproduced in extensor by me above and the same clearly shows that the plinth level of the shop had been agreed to be reduced by the appellant. Once such permission had been granted it was obvious that the mosaic flooring which existed originally had to be removed as reduction of the plinth level could not be done without breaking of the floor. The whole area of the shop as well as the Verandah had to be brought down. The Verandah could not be allowed to remain higher than the plinth level of the shop itself. Once the plinth level was allowed to be reduced then thereafter the area of the floor which was near the pillars had obviously to be removed and in that process the pillars had to be exposed a little. However, no damage to the structure as such has been proved by the appellant and at least no impairing in the value or structure of the building has been suggested by the appellant as such. Moreover, the appellant had not examined any architect or engineer to prove the impairing in value or utility of the premises in question.
11. In respect of the covering of the Verandah the learned counsel for the appellant was very vociferous, particularly in view of the fact that the K.M.C. Had issued a notice to the appellant as to why the Verandah had been covered. Mr. Hazratji had argued that the permission sought for and granted to the respondent could not have been against the rules of the K.M.C. However, no one from K.M.C. Has been examined in the case and, therefore, one does not know as to what is the actual basis of the objection of the K.M.C. What is important in the case is that the respondent had made a request to the appellant for covering of the Verandah and it is not denied by the appellant that he had given that permission. In fact the same is in writing. I was originally thinking that probably the roof of the Verandah was allowed to be covered by the appellant and not the sides but when I saw the photograph of the building produced by the appellant I realized that the Verandah bears R.C.C. Structure and its roof was of R.C.C. Structure itself and, therefore, the permission which was sought by the respondent from the appellant could not be for covering the roof of the Verandah but it could not only mean the covering of the sides. Therefore, when the appellant granted permission to the respondent on 23-1-1976 for covering the Verandah without specifying as to in what form it had to be covered then the respondent did nothing wrong when he covered the same in the front by iron shutters and on the side by wall. Thus, the respondent had the advantage of increasing the breadth as well as the length of its shop and the respondent has admitted in his written statement that he had agreed to pay Rs,75 per month to the appellant separately for this purpose. The appellant could take advantage of this admission of the respondent and claim the rent on that basis but otherwise the appellant has no case against the putting of shutters at the beginning of the Verandah because he had specifically permitted the same. If the area of the shop has been increased due to the specific permission given by the appellant then he cannot have any grouse against the same.
12. Then submission is that the underground tank had been damaged because a part of the Verandah where it existed had been demolished by the respondent. Again answer is that once the appellant has permitted the reduction of the plinth level of the shop, the same could not be done without reducing the plinth level of the Verandah itself, and if that process required some chance in the underground water tank then obviously it was included impliedly in the permission granted by the appellant.
13. The appellant had not in any manner proved any impairing in the value of the premises and the alterations and additions were authorized by the appellant and in any case the appellant had failed to object to any one of them, right from February, 1976 when the same were carried out till April, 1977, when notice in respect of the same was sent. This long absence of one year and two months on the part of the appellant in respect of the construction is a significant fact pointing to his permission and acquiescence because the appellant is residing on the first floor of the same shop. The appellant is estopped from claiming that the alterations and additions were not made with his consent. He had allowed them to be made under his very nose and he cannot now be allowed to object to the same.
14. Similarly the appellant has failed to prove any nuisance on the basis of the exhaust fan. This second appeal was, therefore, dismissed by me by short order, dated 23-1-1985 and these are the reasons for the same.