IMAM ALI G. KAZI, J.- Attaur Rehman, one of the owners of the building known as Yousuf Mansion, situated on plot No.8 A.M, Burns Road, Karachi filed an application under section 15(2)(ii)(iv) of Sind Rented Premises Ordinance, 1979 on 22-10-1984 in the court of XIX Senior Civil Judge/Rent Controller, Karachi (South) for the ejectment of tenant, the appellant herein.
2. The ejectment of the appellant from tenement No.4 on the third floor was sought mainly on the ground that he had put the tenement to commercial use through it was It out to him for residential use only. It was also alleged that he had installed machinery in the premises which had impaired its utility and value. The allegations made in the application were generally denied by the appellant.
The Rent Controller framed three issues on the pleadings of the parties as under;
(i) Whether the opponent is using the premises for the purpose other than for which it was It out?
(ii) Whether the opponent has materially impaired the value and utility of the premises?
(iii) What should the decree be?
3. On the basis of evidence led by the parties, the Rent Controller found that the appellant had in fact used the premises for the purpose other than it was It out while issue No.2 did not find favour with him. Ultimately, on the basis of such findings, the Rent Controller by his order passed on 26-1- 1987 directed the appellant to had over the vacant possession of the demised premises to the respondent/landlord within one month. It is against this order that the present appeal has been filed by the appellant.
4. Mr Ali Akbar, the Advocate for the appellant has mainly contended that the landlord in the case was unable by cogent evidence to prove that the tenant had put the premises to commercial use and the Rent Controller on the basis of scanty evidence has ordered the ejectment of the appellant. In support of his above contention, he has referred to cases reported in PLD 1987 Kar 603 and N1R 1987 (Civil) 137.
5. On the other had Mr.G.P. Shaikh, the Advocate for the respondent states that the landlord had examined himself and an officer of the Fire Brigade Department to prove that the premises in question was in fact put to commercial use. The compromise arrived at between the parties in an earlier litigation clearly establish that the premises was meant for residential purpose only.
6. From the very start of litigation I find that the landlord had failed to fully describe the changes effected in the premises by the appellant/tenant in the application itself. He did not even mention the type of machinery installed by the appellant to carry out commercial enterprise therein. Not only such particulars were not given in the application but such particulars did not find any mention in his affidavit-in-evidence which was filed after a considerable period. Both the pleading and evidence on the point remained obscure and vague. The officer of the Fire Brigade merely mentioned that a computer and a movie camera was found damaged by the i.e in that house when they went to extinguish it. The availability of such equipment in the premises cannot by any stretch of imagination establish that the premises was put ot commercial use. Such equipment these days can be found to be available in a large number of houses not used for commercial premises. In order to scce ed in ejecting the tenant on the ground of change of user of the rented premises the burden of such proof heavily lies on the landlord. The landlord in the present case has not discharged such burden and the Rent Controller ordered ejectment of the appellant on scanty evidence.
7. Accordingly, I allow this appeal and set aside the order dated 26-1- 1987 passed by the Rent Controller in the case and reject the application for ejectment.