1. By this appeal the appellant/tenant has challenged the: orders passed by the learned Rent Controller, directing his ejectment on the ground of using residential portion of the premises for the purpose other than for which the same was let out and having damaged the premises in question by which the value and utility of that, same is materially impaired.
2. The facts briefly are that the present respondent had filed a rent case in the year 1985 contending that she is landlady of Plot No. 6/437, Liaqatabad, Karachi, having structure with 9 shops and residential accommodation on the ground floor comprising two rooms, courtyard, kitchen, bath room and lavatory while on the first floor of the same building there are other residential units. It is further contended that out of the said premises the shop Nos. 2, 5 and 6 and the said residential unit were in occupation of-the appellant/tenant at the rent of Rs. 275 per month. It has specifically been pleaded that the appellant was given shops for running his business while the residential unit was given for his residence and that about a week before the filing of the said rent case the respondent/landlady had visited the premises and found that the residential unit had been converted by the appellant into commercial having demolished the kitchen and bath room and installed the machinery in the courtyard while he had also demolished the wall in between the Shop No. 5 and 6 and also a wall in between the Shop No. 2 and the said residential unit. The appellant had filed his written statement wherein he has denied the. Fact of having materially impaired the unkility of the premises in question and pleaded that the said premises are situated on the main road of the commercial area wherein he has established the business in the name and style of Standard Glass Works from the very beginning of the tenancy. He has also alleged that he is the tenant in respect of the Shops Nos. 2, 5 and 6 and the store on the back-side. He has further taken plea in his affidavit-in-evidence that the said walls were demolished by Mohammad Bux the late husband of the present respondent who had died in the year 1976 after the inception of his tenancy.
3. I have heard the arguments of the learned counsel for the parties.
4. The two important points to be determined in the present case are as to whether the said residential premises were rented out to the present appellant for the said purpose or it was only a store on the back side of the said shops which is now being used for the commercial purpose.
5. Second point would be whether any material damage has been caused by demolishing of the said walls which would materially impair the value and utility of the premises in question. Mr. A. H.
6. Rajput, learned counsel for the appellant, has argued that he was not rented out the residential premises but yeas the store. He has also denied the execution of two agreements dated 7-8-1970 and 1-1-1972. He has contended that the same are not signed by him but his signatures are forged.
7. The learned Rent Controller had taken the specimen signatures of the appellant. I have examined the said signatures of the appellant with those bearing on his vakalatnama and, the said agreement and find that the same are quite similar. Even otherwise the appellant in his cross- examination has admitted to have entered into agreement of rent with the deceased husband of the landlady. Not only this but he has also affirmed the terms and conditions as contained in the said agreements The rent receipts produced in the case clearly show that the rent was being paid for residential premises also. 1, would, therefore, hold that he had executed the said agreements.
8. From the said agreements it is clear that he was rented out the said residential premises for the purpose of residence and this fact cannot be denied by him. It is also clear from the record that, the said premises are now being used for commercial purposes. This fact is not denied by the appellant nor he has produced any evidence on record to show that he is using residential premises for the said purpose. I would, therefore, hold that the case of the respondent as far as residential premises are concerned is covered by the provisions of Section 15(2) (iii)(b) which reads as under:-- "(2) The Controller shall, make an order directing the tenant to put the landlored in possession of the premises within such period as may be specified in the order, if he is satisfied that-- (i)
9. (ii)
10. (iii)
11. (a)
12. (b)used the premises for the purpose other than that for which it was let out; (c)
13. The above facts prove that the appellant having used the said premises for the purpose other than for which the same were rented out to him is liable to ejectment.
14. Taking up the case of the three shops Mr. A.H. Rajput, learned counsel, for the appellant has argued that in the first instance the said walls connecting Shops Nos. 5 and 6 and the other wall intervening the Shop No.2 and residential premises were demolished by late husband of the landlady and not by him. This contention of the learned counsel is devoid of any force as there is no evidence on record to prove the same. It is merely an oral word of the appellant which cannot be accepted without any corroborating evidence. He then argued that ever-since the death of the husband of the landlady she was in the knowledge of the alleged demolition and the rent case having been filed after a period of 9 years, she is deemed to have acquiesced in the same. He has relied on the case of K.C. Mamoo v. Mrs. Badrunnisa (1985 CLC 332) and Mst. Zulekhan Bibi v. Hakim Nasiruddin (1985 CLC 1934). With respect to the above-said decisions I am of the view that the same do not apply to the present case as the knowledge of the landlady had to be proved by the tenant as a matter of fact. In the present case there is no evidence brought in this respect.
15. Whereas the respondent/landlady has clearly explained that it was only one week before filing of the present case that she acquired the knowledge of the said demolition. From the above facts I am of the view that of course the landlady would be barred to bring an action in respect of any addition, alteration are demolition, provided she had the knowledge of the same and she waived her right to take action for considerable long time. But this is not so in the present case as here the landlady within one week of having acquired the knowledge has filed the rent case. I am, therefore, of the view that she cannot be said to have waived her right. The next contention of Mr. A.H. Rajput appearing for the appellant, is that it is incumbent upon the, landlady to have proved that by such demolition, the value and utility of the premises in dispute have been materially affected. In this case the wall intervening the Shops Nos. 5 and 6 admittedly stand demolished and that the appellant is carrying on his business in the same for which purpose the said shops were rented out to him. Mr. A.H. Rajput learned counsel for the appellant hay relied on the cases of Mohammad Mirza v. Mohammad Ghani (PLD 1983 Kar. 162), M/s. Alba Industries v. Haroon and others (1985 CLC 2622), Mohammad Kassim v. Mst. Akhtari Begum (1985 CLC 1368), Umar Daraz v. Mst. Fatima arid 13 others (1986 CLC 103), Dr. Sherin Hatim v. Qutubuddin (1986 CLC 713).
16. It will be advantageous to reproduce the provisions of Section 15 (2) (iv), which reads as under:-- "(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)
17. (ii)
18. (iii)
19. (a)
20. (b)
21. (c)
(iv) the tenant has committed such acts as arc likely to impair the material value or utility of the premises; (v)
22. (vi)
23. (vii)
24. No doubt that as provided in the above section the acts of the tenant with regard p to demolition or alteration can be made a ground for ejectment but over-riding contention is that those acts should be such as to have impaired the material value or utility of the premises.
25. It is an admitted fact that the entire premises were rented out jointly at the monthly rent of Rs. 275 per month as claimed in paragraph 2 of the application for ejectment and admitted in the written- statement. The said premises, therefore, cannot be treated as independent unit now on account of demolition of the said wall. For these reasons the Shops Nos. 5 and 6 having been included in the said single tenancy cannot be excluded.
26. M.Y.H/A-554/X