' MAMOON KAZI, J.---The respondent in those two petitions is the landlady of house bearing No,46/5, Gujrat Colony, Karachi, she filed two rent applications before the V Senior Civil Judge/Rent Controller, Karachi (East) which were numbered as 5643 of 1978 and 3981 of 1979 respectively (renumbered as 613 of 1985 and 614 of 1985). The first 'rent application was jointly filed by the respondent with her brother Muhammad Banker seeking eviction of the petitioner on the ground of personal requirement as the portion in occupation of the respondents which consisted of two dilapidated rooms was insufficient for their requirement. The respondent being an old woman needed someone to look after her and it was not possible to accommodate any such person on account of insufficient of accommodation. Although the tenancy was created by the respondent's mother but she had subsequently acquired title in the property by execution of a will in her favour.
2. In the second application which was filed by the respondent alone it was pleaded that the petitioner was a tenant in portion of a house consisting of two bed rooms, one hall, one dining room, one study room, one store room , a kitchen and a bath room. The tenancy had been created by an oral agreement and the monthly rent payable by the tenant was Rs,125. It was further pleaded on behalf of the respondent that in view of the rent case earlier filed by her, the tenant had become a nuisance for the respondent in order to wreak vengeance. Besides, the tenant had made alterations in the tenement which were calculated to materially impair the value or utility of the premises. The tenant has also undertaken repairs and painting of the premises according to his sweet-will without any permission from the respondent. Hence it was maintained, that he had made himself _liable for eviction on such grounds.
3. Both the applications were resisted by the petitioner. In regard to the second application, it was pleaded that only minor repairs like white wash etc. To the demised premises had been undertaken by the petitioner at his own cost, albeit without written permission of the respondent which had been given to him all along. Consequentially no cause of action had accrued to the respondent as claimed by her.
4. Both the applications were disposed of by the learned Rent Controller by a single order dated 17- 11-1985, ordering eviction of the petitioner from the said premises. First Rent Appeals No,635 of 1985 and 636 of 1985, were filed before the High Court of Sindh which were disposed of by a common order dated 29-5-1991, and the case was remanded with observations that the Controller while deciding the said applications had failed to view the evidence properly inasmuch as that he had failed to specifically refer to the pleas taken by the tenant in his written statement and had also failed to record finding whether the alterations made by the tenant had impaired the material value or utility of the premises. The order passed by the High Court was challenged before this Court in Civil Petitions Nos.331-K and 334-K both of 1991, but the order passed by the High Court was upheld vide judgment dated 18-12-1991-
5. Upon remand the Controller through separate orders each dated 15-10-1992, dismissed Rent Case No,613 of 1985, on the ground that no case for personal requirement had been made out.
However, Case No,614 of 1985, was allowed on the ground of impairment although, the ground of nuisance was not accepted by the learned Controller. First Rent Appeal No,556 of 1992, was then preferred against the first order and First Rent Appeal No,538 of 1992, was directed in relation to the second. Learned Judge of the High Court has dismissed First Rent Appeal No,538 of 1992 and allowed F.R.A. No,556 of 1992, upholding the order of eviction being granted on the grounds of bona fide personal requirement, material impairment of the value or utility of the premises and nuisance.
The tenant was allowed a month's time to vacate the premises. It is against these orders that the present petitions have been filed.
6. Mr. Rashid Akhtar Qureshi, first of all argued that the proceedings instituted by the respondent before the Rent Controller were barred by res judicata as an application for ejectment had earlier been filed by the respondent before the Martial Law Administrator (Zone "C") Karachi, wherein ejectment was sought on the ground of personal requirement and nuisance but the same was dismissed vide order dated 28-9-1977. A copy of the order passed by the Martial Law Authorities indicates that the petition was painly dismissed for the reasons that the house in question belonged to one Mst. Zainab Bai who was maternal aunt of the respondent, therefore, the latter was not the landlady of the premises. The order further indicates that the Martial Law Authorities were not satisfied with the claim of the respondent that she had been married in 1946 as according to the record produced by the said authorities, it could not even be proved that the respondent was married. Admittedly no appeal was filed by the respondent against such order. Mr. Rashid Akhtar Qureshi has invited our attention to the Military Courts (Validation of Orders) Ordinance, 1980 which was notified in the Gazette on 19-1-1980 and paragraph 2 of the said order provided as follows:-- "2(1). Notwithstanding any order, judgment or decision of any Court, an order passed by a Military Court at any time on or after the sixteenth day of August, 1977, in any proceeding under Martial Law Order No,20 made by the Martial Law Administrator Zone 'C' shall be deemed to have been passed under the Sindh Rented Premises Ordinance, 1979, as if the said Ordinance were in force at the time when such order was passed and shall have and shall be deemed always to have had effect accordingly.
(2) Any person aggrieved by any such order as is referred to in subsection (1) may, within thirty days of the commencement of this Ordinance, prefer and appeal to the High Court."
' It was, thus, contended by Mr. Rashid Akhtar Qureshi that since the respondent had sought such relief from the Martial Law Authorities after the 16th day of August, 1977, she was governed by the provisions of the said Ordinance and since no appeal was filed against the said order under paragraph 2(2) of the said Ordinance, the order passed by the Martial Law Authority attained finality and thus the rent applications subsequently filed by the respondent were barred doctrine of res judicata. Such contention was also raised on behalf of to petitioner before the learned Rent Controller and the learned Judge in Chamber but the contention was repelled. It may be pointed out, that as has been observe by the learned Judge of the High Court in Chambers, the respondent ha invoked the said jurisdiction as a widow and since ex facie she was not found 1 be so, the case was dismissed. The present case was not filed by the responder upon such plea. Further, jurisdiction under Martial Law Order 20 was under special dispensation and the order which was passed by Martial Law Authorities can in no way be considered as a bar to deprive a respondent of availing to provisions of section 15 of the Sindh Rented Premises Ordinance which can invoked by the landlord for seeking ejectment of a tenant on any of the ground referred to in section 15 of the said Ordinance. Moreover, so far as the case the respondent in respect of the additions or alterations is concerned, the order of the military authorities cannot pose an obstacle to the proceedings initiated is this regard. Consequentially we are not pursuaded to accept the technical plea raised by Mr. Rashid Akhtar Qureshi in this case.
6. So far as the case of respondent on merits is concerned, we would fire like to advert to the plea of additions or alterations as both the learned Controlled as well as the learned Judge of the High Court in Chambers has give concurrent findings on the said issue. In this regard, it has been observed by the learned Judge in Chambers as follows:-- "This takes us to the second Rent Case viz 3981 of 1979 (new E.( No,614 of 1985) covered by First Rent Appeal No,538 of 1992. As already seen, the learned Controller has ordered eviction of the tenant in relation to teh case on the ground that the tenant was guilty of acts as were likely to impair the material value or utility of the premises within the terms of clause (iv) subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979. The tenant admitted in the course of his evidence that initially there were three room in his tenancy and subsequent to that he added a room inside to tenement at bifurcated another thereby come to have five rooms in all. As noted while recapitulating the evidence in the case, through letter dated 12-10-1968, which alone was confronted to the landlady, there was permission to add one room the accommodation and to effect necessary repairs and renovations. The document was signed by at least 5 persons including an Advocate, the law specifically as a witness, the other four being late Zainab Bai, Muhammad Shall Banker, Haleema Banker and Siddique Banker. Question, therefore, arise whether the other additions and alterations, apart from the foregoing; if and were duly authorised. In support, from the tenant's side, another document dated 5-12-1968 is relied upon. As seen, it is handwritten, in English and purported drafted by the same Advocate who witnessed the first document but bears only the alleged Urdu signature of Mst. Zainab Bai. It permits the shifting of the drawing room and dining room wall, closure of one window and moving of a door in such wall. This document was never confronted to the applicant nor was the attesting witness examined, even though the document seems to be in his hand, on the plea that he was the Advocate of the landlady. Assuming that such was the case, then too there was no reason as to why such person, whose name itself is illegible, could not be examined. The document, which was questioned when produced, therefore, was not proved. Even if it was proved, it does not indicate that a new partition wall was added between the drawing and dining rooms and in fact shows there already existing a wall which was merely to be shifted thereunder. The result of such an exercise, therefore, could not have brought about an additional room. The admitted position is that inside the tenement, as of now, there are five rooms in possession of Haji Ghulam Rasool Soomro. One such room, therefore, plausibly was added unauthorisedly. Maglour did not end here. The above quoted inspection note of the learned Controller reveals that there is an additional room in possession of the tenant "without roof which has a shutter". The tenant, therefore, had to account for these additional rooms and has accounted only for one. Such position has also been highlighted in the diary sheet dated 29-5-1994 in this First Rent Appeal, where replies to the queries raised were recorded.
Correspondingly, it has been brought out that whereas for the first floor structures a proper proposed plan was drawn up, none was prepared concerning the additions and alterations at the end of Haji Ghulam Rasool Soomro and as to this in answer to my questioning that gentleman stated that such was the responsibility of the landlady. Even so, if no approval was taken all additional structures were unauthorised under the relevant building bye-laws. Equally importantly, not a word has been said that the additions are of the same type, nature and character as she authorised structure. This was the tenant's burden to discharge, once unauthorised constructions were established. As seen above, the property is a Bungalow and such additions and alterations, part of which have been proved to be unauthorised, were clearly likely to affect its material value or utility or both. This arises firstly, because of a charge in the nature of the structure and secondly, because one room, as per inspection note, was put up in open space, resulting presumptively in unauthorised encroachment and an ungainly appearance: Akhtar Sultana v. Abdur Rauf Nagi (PLD 1978 Lahore 317), Talat Farooq v. Majeed Jalil (1980 CLC 1348) etc. The conclusion of the Controlling on the connected issue, therefore, appears to be correct. "Hence or less similar was the view earlier taken by the Rent Controller in Case No,514 of 1985.
7. Consequentially, as would be seen from the above observations, both the learned Controller as well as the learned Judge in Chambers on assessment of the evidence respectively adduced by the parties have arrived at the conclusion that a case against the petitioner in respect of impairment of utility or value of the premises had been made out.
8. Mr. Rashid Akhtar Qureshi has argued that unless the tenant was also found to have committed acts of nuisance, his ejectment could not be ordered on the ground of impairment of value or utility alone, but the contention is completely devoid of force because nothing can be spelt out from the provisions of section 15 to indicate that clauses (iv) and (v) of subsection (2) of section 15 of the Sindh Rented Premises Ordinance are to be read conjunctively and not disconjuctively. On the other hand, as is clear by the language employed by the Legislature in section 15, each ground enumerated in clauses (i) to (vii) therein is independently available to the landlord for the seeking ejectment of his tenant, depending upon the circumstances of each case. The contention raised by Mr. Rashid Akhtar Qureshi, therefore, completely devoid of force. As we have pointed out earlier, nothing to which our attention has been invited can pursuade us to hold that the findings arrived at either by the Controller or the learned Judge in Chambers is open to exception. Therefore, in our view, the respondent has fully succeeded in establishing her case regarding impairment of material value and utility of the premises in question, as would also appear from the observations made by the learned Judge of the High Court, reference to which has earlier been issued in this judgment.
9. In view of this, even assuming that the findings of the learned Judge of the High Court in respect of nuisance or personal requirement are liable to be reversed, no useful purpose can be achieved if leave in this regard is granted.
' In view of this circumstance just enumerated by us above, the judgment of the High Court on the ground of impairment is upheld. Leave is, therefore, refused.