1. ' This appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance 1979) is directed against the order dated 1-3-1993 passed by the learned III Senior Civil Judge and Rent Controller Mr. Sirajuddin Qureshi) in Rent Case No,165 of 1988 whereby the Rent Application was allowed and the appellant was directed to vacate the premises and hand over vacant possession within 90 days.
2. ' Brief factual background of the matter is that the respondent filed the eviction application under section 15 of the Ordinance stating that the appellant is the tenant in respect of shops Nos.1, 2 and 3 Court No,16 Kazi Court, Karachi since 1963 but the rent was increased from Rs,900 to Rs,1,600 in 1978.
3. Although these shops were rented out for opening a general store yet the appellant converted the same into a Book shop. He also allegedly carried out certain addition, alteration, modification and changes in the demised premises The respondent also alleged that the appellant has encroached upon the open space on the back side of the shops by amalgamation and have also fixed the door.
4. ' In one portion of the shop photostat and popcorn machines have been installed and a Cold Drink Counter has also been erected illegally in violation of the terms and conditions of the tenancy agreement. According to the respondent/applicants these unauthorised acts of the appellants have impaired materially the value and utility of the premises/building and are also a source of annoyance and nuisance to the respondent and the neighbours.
5. ' The appellants filed its written statement and denied the allegations. Their case is that in March, 1976 the respondent/applicants had filed Rent Case No, 1341 of 1976 for their ejectment on the ground of subletting, damages, addition and alterations and default in payment of rent but in 1978 the rent was increased from Rs,900 to Rs,1,600 and the respondents withdrew the case unconditionally. It is further alleged that in January 1984 the respondent again demanded increase in rent at Rs,3,500 per month with retrospectively effect from January 1980 to December 1983 as well as the arrears. In February 1984 the respondent refused to accept the rent, therefore, the same was deposited in Court. It was denied that the shops were rented out for a particular purpose or that there was any restriction upon the appellant for selling or doing any business. The alleged encroachment on the opening space and/or material addition/alterations or damages to the demised premises were also specifically denied. The learned Rent Controller framed the following three issues:
(1) Whether the opponent did some acts without permission of the applicants which materially impaired the value and utility of the suit shops?
(2) Whether the opponent caused nuisance to the applicants and the neighbours?
(3) What should the order be?
6. ' Parties led their evidence and ultimately the eviction application was dismissed on 25-3-1992.
7. However, this order having been assailed in F.RA. No,252 of 1992 was set aside by this Court. The case was remanded to the learned Rent Controller for decision on the following issue: "Whether the opponent has encroached upon the applicants' open space/land on the back side of the shops and amalgamated the said open space in the shops in question and fixed a door? If so, what is its effect?"
8. ' After remand the respondents filed additional affidavit-in-evidence and no further evidence was led by the appellants on the above issue. The learned Rent Controller allowed the application directing the appellants to vacate the said premises vide order dated 1-3-1993 which is the subject-matter of this appeal.
9. ' I have heard Mr. Muhammad Jamil learned counsel for the appellant and Mr. Khalid M. Ishaque learned counsel for the respondent and perused the record.
10. ' Mr. Muhammad Jamil, learned counsel for the appellant submitted that so far as the alleged encroachment is concerned the learned Rent Controller has no jurisdiction to decide this issue and action if any could have been taken by the relevant local authorities under the Removal of Encroachment Act, 1975. He further contended that the learned Rent Controller failed to take judicial notice of the fact that earlier the Rent Application No, 1341 of 1976 filed by the respondent was withdrawn unconditionally and the rent was enhanced from Rs,900 to Rs,1,600, therefore, the second application was hit by the principle of res judicata. He also pointed out that the respondent admitted in their evidence that they were prepared to withdraw the case if the appellant was - agreeable to enhance the rent at Rs,4,000 per month and should also pay Rs,2,00,000 as damages.
11. This according to the learned counsel indicate the mala fide of the respondent. He also vehemently urged that after remand of the case no fresh evidence was brought on record to prove the relevant issues and, thus, the impugned order has been passed contrary to the evidence on record.
12. ' Mr. Khalid M. Ishaque, the learned counsel for the respondent in reply submitted that after the consent order of remand passed by this Court the arguments about the waiver/estoppal are beside the point. Relying on the definition of words "impair material value or utility" used in section 15(2) (c) (iv) of the Ordinance he submitted that the language used in the Ordinance is fundamentally different from the language of section 13 of the Sindh Urban Rent Restriction Ordinance, 1959. According to him the main question is whether the utility of the demised premises as such has been impaired or not. Referring to the cross-examination particularly the admissions made by D. W. Muhammad Nesar Baig he submitted that the occupation of open space is not denied by the appellant. He also referred to para, 3 of the additional affidavit-in-evidence and submitted that the cross-examination is silent on the amalgamation thus, this fact has been admitted by the appellant. Lastly he pointed out that mere withdrawal from proceedings is not estoppel and that evidence of Saddruddin on diminishing utility has gone unchallenged and unrebutted. In support of his submission he cited:
(i) Alnoor Education Society through Naeem Moyuddin, Karachi v. K. Mushtaq Ilahi (1993 CLC 1798).
(ii) Mst. Nurjehan Begum through Her L.Rs, v. Syed Mujtaba Ali Naqvi (1991 SCMR 2300).
(iii) Mst. Akhtar Sultana v. Dr. Abdur Rauf Nagi (PLD 1978 Lahore 347).
(iv) Abdul Salam v. Banaras Khan (1989 SCMR 98).
(v) Rana Khalilur Rahman v. Additional District Judge, Lahore and 2 others. (PLD 1983 Lahore 331).
13. It is evident that in view of the order of this Court the Rent Controller confined himself to consideration of the issue remanded to him. The grievance of the respondent as divulged in his application as well as evidence appears to be that the appellant to whom only shops with no open space were rented out had encroached upon the land on the back side of those shops and amalgamated it with them. According to the respondent, such act of the appellant besides being unauthorised also materially impaired the value and utility of the building. From perusal of the record, it transpires that a similar grievance was also spelt out in the previous Rent Application No, 1341 of 1976 which the respondent filed for the same purpose and which he subsequently withdrew unconditionally on 7-3-1978 in view of a compromise between the parties outside the Court.
14. The contention of the learned counsel for the appellant that Rent Controller was not competent to decide the dispute regarding encroachment is misconceived and bereft of any substance. The lower Court was considering not the issue of encroachment simpliciter but the conduct of the appellant in allegedly committing an unauthorised act and thereby exposing himself to the consequence of section 15(2)(iv) of the Ordinance. Surely if the allegations of the type made by the respondent are proved to be true the appellant will be liable to ejectment and the Rent Controller will, be within his jurisdiction to pass an order to that effect. The provisions of the Removal of Encroachment Act are neither relevant nor a bar to the exercise of jurisdiction by the Rent Controller in the context of the controversy before him. Therefore this Court while remanding the case to the Rent Controller with the consent of the parties seemed to have been conscious of this aspect of the matter.
15. ' The next contention of the appellants' counsel is that the subsequent application was barred because the previous application wherein one of the grounds for ejectmet being also the encroachment and impairment of the value and utility of the demised premises was withdrawn pursuant to a settlement arrived at between the parties. Admittedly, the issue framed and remanded by this Court was based on such a plea which was directly and substantially reurged in the subsequent application. The proceedings in the earlier case were terminated by the respondent as a consequence of an amicable settlement with the appellant which presumbly must have been taken care of all the complaints including the one regarding encroachment. The annexation of the open space with the shops allegedly by the appellant cannot be considered to be unauthorised and tantamounting to encroachment if the appellant on his own showing reached at a settlement with the respondent which made his pleas in fructuous and necessitated withdrawal of the case.
16. The withdrawal of the claim of unauthorised amalgamation of the open space as a result of the compromise which also stipulated increase in the monthly rent which the appellant is also paying goes a long way to prove that the respondent voluntarily and intentionally relinquished his right to seek ejectment of the appellant on that account. Such an inference would also not be inapt when the respondent in his cross-examination showed willingness to withdraw the proceedings if the appellant was agreeable to enhance the monthly rent and also to pay damages. Such being the situation the plea of waiver is available to the appellant. It will be pertinent here to quote the following para. From Halsbury's Laws of England, Vol. 13, page 207: "Waiver is the abandonment of right, and is either express or implied from conduct. A person who is entitled to the benefit to the stipulation in a contract or a statutory provision may waive it. Waiver of this kind depends upon consent, and the fact that the other party has acted upon it is sufficient consideration. Where the waiver is not express it may be implied from conduct which is inconsistent with the continuance of the right."
17. ' There is no dearth of cases where the landlords were held to have waived their right to seek eviction of the erring tenants. Reference may be made to the judgments reported as: Adam Ahmed Thaqia v. Muhammad Hanif (1988 CLC 1703), Yaqoob All v. Ismail (1987 CLC 526), K.0 Mamoo v. Mrs. Badrunnisa (1985 CLC 332) and Mrs. Afia Baig v. Pakistan State Oil Company Ltd. (PLD 1991 Karachi 239). Thus the examination of the issue in the light of the relevant fact inescapably leads to the conclusion that the respondent was not entitled to reagitate the point of encroachment and the impairment of the value and the utility of the demised premises.
18. ' Even on merits, I do not find on record sufficient evidence to support the case of the respondent.
19. According to the respondent, the open space was annexed without his permission. The appellant denied this allegation and according to him the shops were in the same shape and condition as they were when let out to him. The respondent seeks eviction on the ground of impairment of the value and utility of the premises. The burden to prove this lies on him. Mr. Khalid M. Ishaque who appeared on his behalf laid emphasis on the words 'value' and 'utility' used in section 15(2)(iv) of the Ordinance and urged that they have been used as independent of each other and it is not necessary that the two should co-exist. In support of his contentions, he relied upon the judgment reported in Mst. Akhtar Sultana v. Dr. Abdur Rauf Nagi (PLD 1978 Lahore 347) and Rana Khalil-ur- Rehman v. Additional District Judge, Lahore (PLD 1983 Lah. 331). There can be no cavil with this proposition but what has to be seen after all, is whether the value or utility has actually diminished.
20. It has been the consistent view of the superior Courts in the country that the mere statement of the landlord that the so-called addition or alternation caused diminution in the value or utility of the property is not sufficient to render the tenant liable to ejectment. Reference is made to the judgment reported in Mst. Surriya Sultana v. M.I. Malik (1988 MLD 2936).
21. 'On remand the respondent got a fresh opportunity to add strength to his case and he also led additional evidence which according to Mr. Khalid M. Ishaque has gone unchallenged. However, in the additional evidence, I do not find anything new or even the relevant details except paraphrasing or reiteration of the earlier version. The respondent's witness was cross-examined by the appellant. It is true that the appellant did not lead further evidence but this omission would not imply that the statement of the respondent was not challenged. The statement of a witness is challenged through cross-examination and it is not always necessary that the other party should also examine its witness.
22. There is no evidence from the respondent's side to demonstrate as to how the value or utility has been impaired. The space in question was described by the respondent as a compulsory open space as per the requirement of Karachi Development Authority, but nothing has been brought on record to show in what manner its utility to him has been impaired on account of the alleged unauthorised annexation by the appellant.
23. ' The up-shot of the discussion is that the appeal is allowed and the impugned order is set aside with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.