1. ' WAJIHUDDIN AHMED, J.---The tenant-hold in this case is a bungalow, situated in PECHS, Karachi. A rent case for eviction in relation to the same was filed in the year 1991 on the grounds of default and the tenant having, allegedly, materially impaired the value or the utility of the premises. The Controller as well as the High Court has found for the tenant as regards default but against it on the ground of impairment. Leave is sought against such orders, though the caveator-landlord has conceded on the plane of default.
2. ' The tenancy is evidenced by the lease deed dated 23-1-1990, operative from 1-11-1989 up to 30-10- 1999. The premises were specifically leased out for the purpose of office use. The dispute between the parties first surfaced through a legal notice dated 6-8-1991. For our purposes, paragraphs 3 attd 4 of the notice are relevant and such areas under:-- "3. That per agreed terms, when our client visited the site on 29-7-1991 he was taken aback to see that against the terms of the Tenancy Agreement and without the knowledge and permission of our client, you have covered open spaces and have raised illegal and unauthorised construction in the compulsory open space for the purpose of offering prayers etc. Not only in sheer disregard of the rules of KBCA, inviting penal action under the rules of the Karachi Building Control Authority but also making yourself liable for ejectment by infringing the terms and conditions on which the premises was let out to you.
4. That apart from the above, our client was also shocked to see that the kitchen on the ground floor has been changed into a hall by removing all the fittings and fixtures including expensive wall cabinets besides converting the servant quarter on the first floor into a kitchen in sheer violation of the terms of the Tenancy Agreement, not only causing thereby losses of about Rs,90,000 to our client but also diminishing the value and utility of the premises by making material alternations and changes not stipulated for in the Tenancy Agreement which has forced our client to serve upon you the instant Legal Notice."
3. ' The tenant in its reply dated 18-8-1991 to the legal notice, sent by the landlord's learned counsel on 6-8-1991, stated as follows:-- "This is with reference to your abovementioned Notice dated 6th August, 1991. We wish to inform you that we have had a detailed meeting with Mr. Rafat Ali Khan, the lessor, on the misunderstanding created because of the temporary structure of the asbestos roof erected in the compound, behind the main building, to enable the office staff to offer Zohar prayers. In this respect it has been agreed with Mr. Rafat Ali Khan, that it will be demolished and he has kindly agreed to have a shade made on the roof of the building for this purpose.
4. ' Further, we are pleased to inform you that all the other matters mentioned in your Notice have been resolved and demolition work is being carried out."
5. ' The learned counsel for the landlord in response, per letter dated 26-8-1991, repudiated the position and maintained:-- "Further, by keeping silent regarding the changes and alterations being made by you in the premises as referred to in our Legal Notice, you have impliedly admitted the same and this admission on your part plus the infringement of the terms and conditions of the Tenancy Agreement by you makes you liable to ejectment from the premises under your tenancy."
6. ' The tenant's learned counsel, in reply, on 9-9-1991, recorded these pleas:-- ' That all the various allegations in your notices under reply are based on incorrect facts, ambiguous assumptions and misconceived in law and on facts. All such allegations, as such are denied.
7. ' It is denied that my clients have raised any permanent structure, failed to pay the water and conservancy charges and carried out major conversion of the existing kitchen. Your client is put to strict proof thereof.
8. ' It is denied that my clients have committed breach of the terms and conditions of the Contract of Tenancy. Your client is put to strict proof thereof.
9. ' My clients reiterate their stand as taken in their reply dated 18-8-1991. It is denied that such notice reply amounts to any admission on the part of my client as alleged."
10. ' The foregoing correspondence was followed by the institution of Rent Case No,859 of 1991 before the learned 1st Rent Controller, Karachi East. Relevant pleas therein are these:-- "5 That apart from the above, the applicant was also shocked to see that the kitchen on the ground floor has been changed into a hall by removing X11 the fittings and fixtures including expensive wall cabinets beside converting the servant quarter on the first floor into a kitchen in sheer violation of the terms of the Tenancy Agreement, not only causing thereby losses of about Rs,90,000 to the applicant, for recovery of which the applicant intends to resort to the proper forum, but also diminishing the value and utility of the premises by making material alterations and changes not stipulated for in the Tenancy Agreement which has forced the applicant to serve upon the opponent a Legal Notice dated 6-8-1991 asking the opponent thereby to vacate the premises.
11. Copy of the Legal Notice annexed as L.3.
6. That in reply to the abovementioned Legal Notice, the opponent in its reply dated 18-8-1991, copy annexed as L4 has impliedly admitted all the contents of the Legal Notice as well as the fact of raising illegal construction in the compulsory open space. Again in his letter dated 26-8-1991 the applicant asked the opponent to comply with the contents of the Legal Notice which was eventually answered by the opponent through its counsel. Copy of the letter and reply annexed as L5 and L6 respectively."
12. ' Entering defence, the tenant repudiated the foregoing pleas in the following words:-- "5 Para .5 is not correct and denied. All the various allegations and claims based thereon are denied. The applicant is put to strict proof thereof. It is denied that any Term of Lease has been violated. It is admitted, however, that the premises in terms of clause 4(i) of the Lease were subjected to necessary repairs and maintenance. Three wooden shelf's were worm eaten and had become beyond repairs. They were removed after informing the applicant and in fact sent to him as desired. But he returned them with a request that the same be kept in the compound of the property. This was done. The applicant for the first raised this excuse after about two years. The allegation of unauthorised. Acts and omissions in this regard are denied. It is denied that the Opponent Company had acted in a manner so as to diminish the value and utility of the premises in suit, Receipt of letter dated 6-8-1991 is admitted; contents thereof were denied by the Opponent Company vide their reply dated 9-9-1991.
6. Para. 6 is not correct as stated. Letter dated 18-8-1991 referred to the mosque shade and not the other allegations, to which a separate reply was made by notice dated 9-9-1991. It is denied that the Opponent Company admitted all the allegations of the applicant in their notice dated 6-8- 1991."
13. ' In evidence the landlord examined himself, whereas the tenant submitted affidavits in evidence of Najam A. Khan, its Managing Director, and Muhammad Hanif, its Finance Manager, besides producing Muhammad Ishaq, Town Inspector, GPO, Saddar, and Ahmed Bux, Assistant Director, KWSB.
14. ' The learned Controller and, in affirmation, the High Court have found no default to have been committed, while eviction has concurrently been ordered on the remaining ground, the difference being that the Controller, in terms of section 15(2) (iii) (c) of the Sindh Rented Premises Ordinance, 1979, concluded that the tenant had infringed the conditions on which the premises had been let out, whereas the High Court, pursuant to section 15(2) (iv), has declared the tenant to have committed such acts, which were likely to or had actually impaired the material value or utility of the premises. For our purposes it is the last-mentioned provision, which is relevant. Such reads:-- Section 15(2) (iv) of the Sindh Rented Premises Ordinance, 1979: "15. Application to Controller.---(1) Where a landlord seeks to evict the tenant otherwise than in accordance with section 14, he shall make such application to the Controller.
(2) The Controller shall, make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that-- (i)
15. (ii)
16. (iii)
(iv) the tenant has committed such acts as are likely to impair the material value or utility of the premises; (v)
17. (vi)
18. (vii)
19. (3)
20. (4)
21. ' As already seen, the respondent-landlord does not, any more, question the finding on the ground of default and seeks to support the conclusion on the residuary issue alone.
22. ' Before us, a number of cases, touching the above provision and those in pari materia, have been cited from either side including some unreported dicta from this jurisdiction. Such and some others, are as detailed below:
(1) Iqbal Ahmad v. Meharban Ali, PLD 1979 Lahore 127;
(2) Muhammad Ibrahim v. Nazir Begum, PLD 1979 Note 28 at p. 28;
(3) Haji Sheikh Fazal Elahi v. Ch. Muhammad Ayub, 1982 SCMR 8;
(4) Sh. Habib Ahmad v. Ahmad Saeed, 1982 SCMR 262;
(5) Muhammad Usman v. Muhammad Usman, 1983 CLC 2875;
(6) Khalil-ur-Rehman v. Additional District Judge Lahore, PLD 1983 Lahore 331;
(7) Suraiya Sultana v. M.I. Malik, 1988 MLD 2936;
(8) Rehmat Bi v. Shereen, 1985 CLC 287;
(9) Government of Sindh v. Mst. Siddion, 1985 CLC 2115;
(10) K.C. Mamoo v. Badrunnisa, 1985 CLC 332;
(11) Dr. Shireen Hatem v. Qutabuddin, 1986 CLC 713;
(12) Zainab Bai v. Shafiuddin, PLD 1987 Karach 116;
(13) Muhammad Ibrahim v Usha Rani Anand, 1988 CLC 925;
(14) Litho Craft Corporation v. A. Habib, 1988 CLC 272;
(15) Qudrat Ali v. Maqbool Fatima, 1989 CLC 599;
(16) Karachi Stock Exchange Ltd. v. Muzaffar Hussain Shah, 1989 CLC 757;
(17) Muhammad Ibrahim v Mrs. Usha Rani Anand (Civil Appeal No,4-K of 1991) decided on 9-4-1991 by the Supreme Court;
(18) Shafqat Ali Khan v. Mahboob Alarn, 1993 MLD 219;
(19) Al-Noor Education Society v. K. Mushtaq Ilahi, 1993 CLC 1798;
(20) Intezar Ahmed Khan v. Khatoon Hadi, 1995 SCMR 194; and
(21) Universal Medical and General Store v. Kazi and Sons, 1996 CLC 356.
23. ' Before dilating upon the legal position involved in the proceedings, it seems necessary to reflect upon the facts in issue. It has been found that a shed on an open space of the property had been put up by the tenant and such, admittedly, was being used for the purpose of saying prayers, avowed by the tenant to be limited to the tenant's employees. The shed, according to the tenant's version, was dismantled as soon as the landlord objected and promised that a portion of the roof may be utilised instead. The returned findings are that no such commitment was rendered by the landlord. Then, the fittings, fixtures and cabinets, located in the kitchen, were removed, allegedly, converting the kitchen into a dining room. The tenant did not deny the removal of the kitchen cabinets, but maintained that the same stood damaged (worm eaten) and were removed with the knowledge and consent from the landlord, who declined to take delivery of the same and for that reason such were moved to and put in the compound of the property. The tenant failed to prove either damage to the cabinets or consent of the landlord for their uprooting. Besides, the servant quarter was stated to have been converted into a kitchen and the affirmative conclusion in that behalf has not been questioned.
24. ' In the first place, it was contended before us by Mr. Suleman Kassim that the findings of the Controller and the High Court were divergent inasmuch as the Controller came to the conclusion that the case was one of infringement of the terms of the tenancy while the High Court proceeded on the ground of impairment. In the circumstances of the case such opinions, even though different, cannot be termed to be divergent. Rent proceedings are quasi-judicial in nature.
25. Pleadings and proof have to be aligned to the requirements of law and technicalities simpliciter, correspondingly, subordinated to the rule of beneficial construction. Here on the same facts, which stood proved in the opinion of either forum, different legal implications were drawn and nothing, therefore, turns on that score so long as the view as to evidence remains the same, which was the factual position, as it prevailed.
26. ' Next, it has been urged that it is not each and every alteration which may constitute material impairment in the value or utility of a tenant-hold. In the given factual background, according to the learned counsel, the case did not qualify under section 15(2)(iv) of the Sindh Rented Premises Ordinance.
27. ' There can be little cavil with the proposition that mere impairement is not enough to sustain an order of eviction under the above clause. The impairment has to be material. However, such impairement can be either of the value or of utility of the premises, the two being separated by the disjunctive word "or". Even then, eviction may also be based upon a finding that a particular act or omission has materially impaired both the value and utility of the premises because if one of the same qualifies a case for eviction, both can do no other.
28. ' Here, it remains to be said that actual impairement in terms is not a requirement of the legal provision. Even if there is or was a likelihood of such a result to follow, that itself would justify an order of eviction. In point may be the unauthorised putting up of the shed in these proceedings.
29. Such may not actually have impaired the material value or utility of the premises but, definitely, had the potential to cause that result had it been allowed to continue and put to the kind of use, admitted on the record. Another factor in such matters of unauthorised or improvised additions or alterations, often enough, should be the cost, expense and inconvenience to the landlord in putting back the tenant-hold to its original condition, if that was more wholesome and apposite. This had relevance to value as well as utility. Where, however, unauthorised changes are temporary and transient in nature, as distinguished from being structural, the tenant may earn reprieve by keeping the landlord indemnified against restoration.
30. ' Again, based on some of the reported dicta, it was urged on behalf of the tenant that because no structural change was involved, only temporary works were carried out and the landlord failed to lead any expert evidence, such as that of an architect, an order of eviction could not have been returned.
31. It is not a requirement of law that only structural changes shall be construed as giving rise to a case for eviction under the instant provision. No doubt structural additions or alternations may furnish a strong foundation for a case on the above score and yet there may be temporary changes, which could furnish a like cause. For the same reason, examination of an expert may lend support to a plea, if examined from either side, the burden being, in its nature, a shifting one. Still non-examination of a qualified person, such as an architect, may not be requisite in a given case.
32. The evidence of the landlord, supported by the record, may well be sufficient, as was the position here. Likewise, covering of compulsory open space may be condonable if essential ingredients of law are not thereby attracted. But where that is not so, eviction may yet result. It is, therefore, in the given circumstances of each case that a positive or negative finding can be returned, the conclusive factor in every case being whether or not there has actually been or a likelihood of a material impairement, either of the value or utility of the premises or both.
33. ' Applying the foregoing legal incidents, it is manifest that even to install anything, even though as temporary and transient as a shed for saying of prayers, is essentially a very dangerous step, particularly in the present day make up of our society, where claims may be staked by motivated elements to the existence of a mosque, which, foreseeably, has the potential to fan controversies.
34. ' Likewise, while there may be an implied warrant for commensurate changes in a residential property, which has expressly been let out for a commercial purpose, as in the instant case, to eliminate an apparently valuable portion such as a kitchen can plausibly cause material impairment to the value or utility of the premises, if and when the landlord is reinducted and resumes the property's use as a residential unit. So it was that, according to the landlord's version, at least a sum of Rs,90,000 should have cost him for rehabilitation of the kitchen etc, affected in the manner discussed. Even this, if it was done with the consent of the landlord, which was shown missing, would have been condonable.
35. ' We would not have been inclined to take the same view about the conversion of the servant quarter into a kitchen because such use could plausibly be discontinued with the removal of the fittings and fixtures, installed for the purpose without much expense. Yet, quite noticeably, at no stage of the proceedings did the tenant offer to indemnify the landlord by placing reasonable funds with him for due restoration, if and when the premises reverted. No different view, therefore, even on this point, can be taken.
36. All in all, therefore, the present was a fit case in which eviction should have been ordered. It was correctly ordered. The petition is dismissed and leave is declined, but the tenant is allowed six months' time to vacate, provided that the tenant continues to pay the rent and, besides, at least, three months before the expiry of such period rehabilitates the property in the same shape and condition in which it was rented out to it. If there be a dispute as to implementation, the Controller can be approached.