1. ' This appeal has been preferred by the appellant challenging the judgment passed by the IIIrd Senior Civil Judge and Rent Controller, Hyderabad on 21-1-1981, ordering the ejectment of the appellant.
2. ' Briefly the facts are that the present respondents who are the legal heirs of deceased Abdul Rashid, who had filed the Rent Application No, 35 of 1979 for ejectment of the present appellant from the Shop No, D/99-1845 Gulabsingh Lane, Tilk Incline Hyderabad on the ground of damages, nuisance and. Infringements of condition of agreement. The case of the respondent is that the said shop was rented out to the appellant for the purpose of running of an office vide agreement executed on 2-3-1965 and renewed subsequently in the year 1966 but the appellant committed infringement of that agreement by running a press in the said shop and also that he had committed the acts of alterations and addition and thereby affected the use and utility of the premises materially. The appellant in his objections denied the above allegations and said that he had been running the press for last fifteen years. On these pleadings of the parties the following points for determination were settled by the Rent Controller: POINT No, 1: ' Whether the opponent has damaged the case premises and thereby impaired the value and utility of the case premises?
3. POINT No, 2: ' Whether the opponent is a nuisance for the applicant and surroundings? POINT No, 3: ' Whether the opponent has infringed of the agreement by running press in the premises?
4. POINT- No, 4 ' What should the order be?
5. ' Points Nos. 1 and 2 were answered in favour of the appellant while the point No, 3 was answered in favour of the respondent and, therefore, the ejectment was ordered. I have heard the learned counsel for the parties.
6. ' The learned counsel for the appellant has referred to the judgment of the Rent Controller wherein it has been held that there is no direct evidence on the point as to for what purpose the premises in dispute were let out to the appellant. He has further submitted that the learned Rent Controller in spite of his above observations has directed the ejectment of the appellant on the ground that the declaration form filed by the appellant under Press and Publications Ordinance, 1963 showed the address of his press to be at Shop No,3, Tilak Chari, Hyderabad which is situate in Mughal Market.
7. From this the learned Rent Controller having concluded that the conditions of section 4 of the Press and Publications Ordinance having been violated the appellant was not authorised to run the press in the said shop. In evidence it has also been brought on record that at one stage the District Magistrate had passed an order whereby the press of the appellant was sealed but subsequently the same was desealed with the direction that the appellant will shift his press to its original address. The learned counsel for the appellant has further submitted that it is not open for the Rent Controller to have assumed the power of the District Magistrate under Press and Publications Ordinance, 1963 and, therefore, the order is liable to be struck down. As against this Mr. Naimatullah Soomro, learned counsel for the respondent has referred to the memorandum of the rent application filed before the Rent Controller, specially paragraphs Nos. 2, 3 and 6 of the same and has submitted that in these paragraphs it has been specifically mentioned that the premises were rented out for the purpose of an office and not for the purpose of press and, therefore, the appellant could not use the premises for any purpose other than the office use, specially the running of a press. He has referred to the provisions of section 13 (2)(ii)(b) of the West Pakistan Urban Rent Restriction Ordinance, 1959 which read as under: "13(2). A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that--
(i) the tenant has not paid or tendered rent due by him in respect of the building or rented land, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord, or in the absence of any such agreement, within sixty days from the period for which the rent is payable; or (ii)..
(a) ..
(a) used the building or rented land for a purpose other than that for which it was leased or has infringed any condition of the tenure on which the building or rented land is held by the landlord."
8. ' I have considered the submissions of the learned counsel. It may be pertinent to point out that during pendency of his application the appellant had moved applications CMAs. Nos. 537 and 538 of 1981. An order was passed on these applications on 224-1981 by my Lord Mr. Justice Naimuddin (as his Lordship then was). This order shows that by consent two agreements entered into between parties in the year 1965-66 were allowed to be brought on record and further to be considered during the course of arguments without any formal proof.
9. ' I have gone through these two agreements. These two agreements do not specify as to for what purpose the premises were rented out to the appellant. Mr. Naimatullah Soomro, learned counsel for the respondent has referred the last line of the agreement wherein it is said that the "power will not be used by tenant after 8-00 P.M." From this Mr. Naimatullah Soomro, learned counsel for the respondent has argued that this shows that the premises were not rented out for the press for which the power (electricity) is essential. However, Mr. A.R. Baloch, learned counsel for the appellant has submitted that press could be run in day time also it is not only the night time when the press is to run and that the agreement has to be constructed as a whole and that power means user of electricity and it is not implied that the premises were rented out for office and not for press.
10. However, this issue remains not proved as is observed by the Rent Controller also. The burden would thus lie on the party who comes to the Court. In my view the respondents have failed to prove their case. Accordingly, the judgment of the Rent Controller is set aside and the Rent Application filed by the respondent is dismissed with no order as to costs.