The appellant has called in question the impugned judgment passed by the Vth Senior Civil Judge and Rent Controller, Karachi, East dated 2012-1993 whereby he allowed the ejectment application filed by the respondent on the grounds that the tenant has without the written consent of the landlord infringed the conditions on which the premises were let out.
2.Briefly, the facts of the case are that the landlord respondent filed ejectment application on 24th August, 1986. The said application was allowed by the Rent Controller vide order dated 23rd September, 1991. The said order was assailed by the appellant in First Rent Appeal No,547 of 1991 in this Court. This Court vide orders, dated 26th April. 1993 remanded the case to the Court of Rent Controller. The order passed by this Court is reproduced hereunder:-- "Imam Ali G. Kazi, J.---After Mr. Muhammad Aslam Qureshi, Advocate for Appellant, and Mr. S. Khisar Askar Zaidi, Advocate for Respondent, argued for some time, both the counsel agree that this is a case where the judgment impugned in this appeal be set aside and case remitted to the Rent Controller to decide if by removing the wall from the back portion of the rented premises, the tenant in fact infringed the terms and conditions of the rent agreement and rendered himself liable to ejectment in terms of section I5(2)(iii)(e) of the Sindh Rented Premises Ordinance, 1979.
In view of above the judgment impugned in this appeal is set aside and case is remanded to the Rent Controller to decide if the tenant had demolished rear wall of the rented premises and thereby has, intact, infringed the terms and conditions of the rent agreement and, therefore, rendered himself liable to ejectment under section 15(2)(iii)(c) of the Sindh Rented Premises Ordinance, 1979. The Rent Controller will take this case out of turn and decide it within six months from today. The parties will be allowed to lead additional evidence on the point. The appeal is allowed in terms indicated above."
After the case was remanded the brother of the respondent and respondent himself were examined. While the appellant and Maqsood Ahmed his witness were examined. Learned trial Court vide impugned judgment held as follows:- "Whereas the lessor is the sole exclusive owner of the plot No,894/-1, Central Commercial Area, P.E.C.H.S. is willing to give shop No,1, constructed of one room, as a shop and the back space of the shop No,1 and shop No,2 as a store."
The above description shows that demised premises consists of one shop and back space of shops Nos.1 and 2 as store. This reveals that there was a space behind the two shops as a store and if, there had been no wall between the shop and the space for store, then, there would have been no mention of the space as store in the Tenancy Agreement.
Moreover, opponent Bux Ellahi in his cross-examination has deposed as under:-- It is correct to suggest that one shop and one room from the back side of the said shop was given to me on rent as per rent Agreement, having the door from the shop.'
In such a way, he has partially admitted the construction of the demised premises and existence of the wall, having door from the shop, therefore, I am satisfied that disputed wall was very much there at the time of Tenancy Agreement, between the applicant and the opponent and same was subsequently demolished. In such a way opponent has clearly infringed the conditions on which the premises was let out. The same terms which the premises was let out. The same terms which are infringed are specifically given in the same rent agreement at para No,4, which reads as under:- That the Lessee shall not make any addition, alteration or any structural changing of any kind in the same premises without prior permission in writing of the Lessor.'
It is clear that opponent has infringed the terms and conditions of the rent agreement as given above by demolishing the real wall of the rented premises between the shops and the store, and therefore, rendered, himself liable to be ejected under . section 15(2)(iii)(c) of Sindh Rented Premises Ordinance, 1979, Issue replied in the Affirmative. "
3. While assailing the impugned judgment Mr. Shahenshah Hussain, learned counsel appearing for the appellant contended that the findings on the existence of wall are based upon conjecture/surmises, secondly there are no findings as to who demolish the wall even if it existed and lastly he contended that until and unless it is proved that such alteration has impaired the value and utility of the premises the order of ejectment cannot be passed. In support of his contention he has relied upon the case of Muhammad Yasin v. Mrs. Khaliq Begum (1988 CLC 1297) decided by Mr. Justice Saleem Akhtar (as his Lordship then was) in which his Lordship ruled as follows:-- "So far the existence of the wall is concerned the learned counsel for the respondent has contended that the fact that there are two shops and two doors it should be presumed that there were separate shops divided by a wall between them. This question of fact cannot be decided on the basis of inference. The respondent could have proved his case by examining neighbours to establish that wall existed between the two shops. On the other hand Mr. Feroz Khan, the learned counsel has pointed out that there is evidence on record that in this building there are other tenants occupying two shops each without an intervening wall."
He has further relied upon a judgment of Hon'ble Supreme Court in the case of Interzar Ahmed Khan and another v. Mst. Khatoon Hadi and another (1995 SCM R 194) and his Lordship Mr. Justice Ajmal Mian ruled as follows:-- "4. On the other hand, Mr. Akhtar Mehmood, learned counsel appearing for the respondent in Civil Appeal No,44-K of 1993 (N.B.-Nobody has appeared for the respondent in Civil Appeal No,43-K of 1993) 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 wall 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.
6. 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 19 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 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."
He has further relied upon the case of Muhammad Yousuf v. Abdullah (PLD 1980 SC 298) wherein it has been held:-- "Now, although the said Ordinance does not contain any provision about the effect of the expiry of a lease, the statutory protection which it confers on a tenant is inconsistent with many, if not most of the usual covenants accepted by lessees in lease agreements. Thus, for example, in the instant case, clause 2(d) of the lease entitled the respondent to confiscate the security deposit if he did not pay rent for three consecutive months or if he did not give vacant possession to the respondent 'at the time of the termination of the tenancy.' Both these provisions are illegal, because the said Ordinance expressly prohibits the landlord from recovering 'anything in excess of the fair rent' from his tenant, and because the said Ordinance specifies the grounds on which a tenant can be evicted, but as the expiry of a lease is not a ground on which a tenant can be evicted, it is clear that the covenant accepted by the appellant to hand over vacant possession "at the time of the determination of the lease" was illegal and could not have been enforced."
(Underlining is mine)
'Additionally Stroud's Judicial Dictionary, IVth Edition wherein alteration has been defined at page 119 and he has drawn the attention of this Court to the meaning conveyed in para. 6 at page 120 which reads as follows:-- "(6) In a covenant, by a lessee of trade premises, not to make any 'alteration to the premises' without the lessor's consent 'alteration' cannot be read without qualification, and means "such alterations as would affect the form or structure of the premises'; therefore, a large clock (by way of advertisement outside a watchmaker's shop) supported by iron stays bolted into the stonework of the front of the house (making holes in the stonework to restore which, on removal of the clock, would need fresh store costing from 13 to 20), is not such an 'alteration' (Bickmore v. Dimmer (1902 Ch. 198)."
4. Mr. S. Khizer Askar Zaidi, learned counsel appearing for the respondent contended that the order of the Rent Controller is based upon evidence and is sustainable. He has drawn my attention to the agreement itself and para. 3 of the recital which has been quoted in the impugned judgment and mentioned in the earlier part of the judgment. He has relied upon clause 4 of the agreement which is also quoted in the impugned judgment and mentioned in the earlier part of the judgment.
5. I have given anxious consideration to the pleas urged by the parties and have gone through the record and proceedings with the assistance of the learned counsel for the parties.
6. Reverting to the first contention urged by the respondent while disputing the grievances there is no mention that there was any wall which may be existing in the disputed premises. The description reference to shop No,1 and the space behind shop No,1 and shop No,3 which has been called as store. The trial Court has merely inferred about the existence of the wall from that definition of premises which were let out to the appellant. The Rent Controller like any other Tribunal is bound to conclude the findings on evidence and not on inferences, surmises or conjectures. Even the conclusions which have been drawn by the Rent Controller are presumptions only, they are not the proof. The findings of the Rent Controller if they are not on proof could not be sustained by the Appellate Court as presumptions howsoever strong they may be, they cannot be equated with proof. The judgment of Mr Justice Saleem Akhtar (as his Lordship then was) reported as Muhammad Yasin v. Mrs. Khaliq Begum (1988 CLC 1297) clinches the issue and is decided accordingly.
7. Reverting to the second contention of Mr. Shahenshah Hussain, learned counsel for the appellant that there are no findings as to who demolished the wall even if existing. Again in the impugned judgment no specific finding has been given. I have gone through the evidence led by the parties.
As stated earlier there is no mention in the description regarding existence of the wall. When the wall was demolished? There is no proof. Again when the alteration took place as stipulated in clause (4) of the agreement? There is no proof. The Rent Laws are enacted by the legislature for the benefit of the tenants. The tenant should not be ejected from the premises unless there is clear proof adduced by the landlord through positive evidence that the case of the landlord is proved on the ground urged in the Rent Application and within the parameters of the law. If no proof is forthcoming I am afraid the order of ejectment passed by the Rent Controller cannot be sustained.
8. This leads me to the third contention urged by Mr. Shahenshah Hussain, learned counsel for the appellant.
9. Mr. Shahenshah Hussain, learned counsel for the appellant has urged that section 15(2)(iii)(c) of necessity must be weighed as integral part of section 15(2)(iv). He has drawn my attention to the judgment of Hon'ble Supreme Court reported in Intezar Ahmed Khan and another v. Mst. Khatoon Hadi and another (1995 SCM R 194). In that judgment their Lordships were concerned with section 15(2)(iv). Their Lordships were not concerned with the provisions of section 15(2)(iii)(c). This case is not relevant to the clause under interpretation in this case. Moreover, specific remand order was passed by this Court in the earlier round of litigation which has been specifically mentioned in the earlier part of this judgment. That particular remand order has attained finality. The Rent Controller was bound to decide that issue. I am afraid while interpreting one clause of ejectment under the law I cannot import another clause of ejectment of the law. That will amount to legislation and not interpretation. The Courts while interpreting the law can iron out creases, but cannot alter the material.
10. Reverting to the judgment in the case of Muhammad Yousuf v. Abdullah (PLD 1980 SC 298). I have underlined a portion from the quotation of the said judgment. The underlined portion supports the view that I have taken because the Ordinance specifies the grounds on which the tenant can be evicted.
11. Reverting to the dictionary definition of alteration, suffice to say that the laws are enacted in our country for the protection of tenants. The common law principles which were the basis of the dictionary meaning cannot be imported while interpreting statute law of our country.
12.For these reasons the contention urged by Mr. Shahenshah Hussain, learned counsel for the appellant regarding interpretation is over ruled.
13.The upshot of the above discussion is that since the respondent has failed to establish his case within the parameters of section 15(2)(iii)(c) of the Sindh Rented Premises Ordinance, 1979 in that there is no description of wall in the premises let out to the appellant nor there is positive evidence that there was any wall existing which was removed by the appellant and thereby infringed the conditions on. which the premises were let out, this appeal is allowed, consequently Rent Case No,642 of 1986 filed by the respondent against the appellant is dismissed with no order as to costs.