' AJMAL MIAN, J.---(1) The above two appeals are with the leave of this Court against the judgments both dated 12-5-1992 passed in F.RAs. Nos.791-792/88 filed by the respondent against the orders of the learned Senior Civil Judge and Rent Controller (Central), Karachi dated 17-10-1986 dismissing the respondent's Rent case, allowing the same by setting aside the above orders of Rent Controller and granting ejectment orders on the ground of impairing the value and utility of the suit premises, leave to appeal was granted to consider the question, whether there was any material before the High Court justifying the conclusion that the removal of the partition wall between the two shops by each of the petitioners, constituted commission of such act which is likely to impair the material value or utility of the premises in terms of clause (iv) of subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979.
2. The brief facts are that appellant in CA. No, 43 is the tenant of shops Nos. 8 and 98, whereas the appellant in CA. No, 44 is a tenant of Shops Nos. 7 and 99 situated in Hadi Market, Karachi. The respondent ladies filed two rent cases, namely, Rent Cases Nos. 624 and 625 of 1982 on the ground that the appellants have removed partition walls between their two shops which was an act which had impaired the material value and utility of the premises. The rent cases were resisted by the appellants. The learned Rent Controller, after appraisal of value evidence, dismissed the respondent's above Rent Cases through the above orders. Thereupon the respondent filed above F.RAs. Which were allowed for the following reasons: "As a result of the discussion, I am of the view that the appellants had made out a case for eviction of the respondent, on the ground contained in clause (iv) of subsection (2) of section 15 of Sindh Rented Premises Ordinance. Consequently present appeal is accepted with costs and the respondent is ordered to be evicted from the shops in litigation after a period of two months, subject to his paying rent for the said period."
' After that the appellant filed two petitions for leave to appeal which were granted to consider the above questions.
3. In support of the above appeals Mr. Talmiz S. Burney has relied upon the unreported judgment of this Court in CA. No, 155-K/82 (Mirza Mustafa Beg v. Mst. Hadi Khatoon), decided on 2-6-1991, the relevant portion of which has been quoted in the leave granting order which reads as follows:-- "The question agitated before us is that in spite of removal of the wall it was necessary for the respondent to have proved that such removal has materially impaired the value and utility of the building. According to Mr. Muzaffar Ali Khan, learned Advocate-on-Record for the appellant, there is nothing on record to prove this fact. We have examined the evidence of the parties and find that both the learned Courts have presumed that removal of wall automatically amounts to causing material impairment of the value and utility of the building. Such presumption cannot be drawn from each and every unauthorised act. However, there may be cases in which such presumption cannot be ruled out. If any tenant makes structural changes, closes down or removes the windows, doors and the staircase then in such circumstances and subject to the facts of the case the Court will be justified to presume that value and utility of the building has been materially impaired. The unauthorised act in the present case is not of a nature from which such conclusion can be drawn."
' He has also relied upon the earlier unreported judgment of this Court in CA. No, 4-K/88 (Muhammad Ibrahim v. Mrs. Usha Rani Anand), decided on 9-4-1991, which has been referred to in the above unreported judgment. In the latter judgment the tenant had raised unauthorised construction on the back of the shop in open space. The learned Rent Controller had granted the ejectment on the ground that the above construction was likely to impair the value and utility of the building, which order was maintained by the High Court in appeal. But this Court allowed the tenant's appeal and set aside the above two concurrent judgments for the following reasons after referring the relevant case-law: "As discussed above although raising of construction without the consent of the respondent has been proved, its effect viz. That such construction has materially impaired the value or utility of the building has not been proved. The High Court and the Controller have merely assumed that the construction ipso facto resulted in material impairment of value and utility. Such conclusion was unwarranted."
4, On the other hand, Mr. Akhtar Mehmood, learned counsel appearing for the respondent in CA. No, 44-K/93 (N.B.--Nobody has appeared for the respondent in CA. No, 43-K/93) has invited our attention to clause (iv) of subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) and has contended that under the above provision, it is not incumbent upon a landlord to prove the factum that the act of the tenant complained of has actually materially impaired the value or utility, but it is sufficient to show that the above act is likely to materially impair the value or utility of the premises. According to him, the factum of removal of partition wail itself is sufficient to prove that the same is likely to impair the material value and utility of the premises. However, he was unable to point out any evidence or record to show that factually the witness on behalf of the respondent had averred that the above act of removal of the partition wall was likely to impair materially the value or utility of the suit shops.
5. In the absence of any evidence, it cannot be presumed that simpliciter removal of a partition wall is likely to impair value or utility of the premises of which such wall is removed. There are two types of partition walls, one which has no structural value but its utility is to provide partition between two portions, whereas the second type of partition wall has structural value as it may bear the load of the structure. In the present case, it has not been even alleged by the respondent that the above partition wall between the shops had any structural value. In the absence of any such evidence, simpliciter removal of the ordinary partition wall will not attract clause (iv) of subsection
(2) of section 15 of the Ordinance. In the instant case one can urge that the value of the shop has materially enhanced as prior to the removal of the partition wall the location of the two shops in each of the above appeal was that one shop had opening on the road, the other shop had opening on the back side in the compound of the market but after the removal of the partition walls, both shops have now access from the road.
6. The upshot of the above discussion is that both the appeals are allowed, the judgments of the High Courts are set aside and the orders of the learned Rent Controller dismissing respondent's Rent Case are restored. However there is no order as to costs.