' The abovementioned two Rent Appeals have been filed against the order of the 1st Rent Controller, Karachi East, Passed in Rent Case No,856 of 1991, filed by the landlord Rafat Ali Khan, against his tenant Messrs Organon Pakistan (Pvt) Limited, whereby the Rent Controller allowed the ejectment application filed by the landlord and ordered eviction of the tenant from the premises in dispute within 60 days of the order.
2. The brief facts of the case as disclosed in the respective pleadings of the parties are that a tenancy agreement was entered between the aforesaid landlord Rafat Ali Khan and tenant Messrs Organon Pakistan (Pvt.) Ltd. On 19-11-1989, by virtue of which the property owned by landlord Rafat Ali Khan bearing No,39-K, Block-6, P.E.C.H.S., Karachi, was agreed to be rented out to Messrs Organon Pakistan (Pvt.) Ltd. For a period of 10 years, effective from 1 11-1989 to 30-10-1999 on a monthly rent of Rs,25,000. The aforesaid rent of Rs,25,000 was exclusive of water and conservancy charges, which were payable by the tenant Messrs. Organon Pakistan (Pvt.) Limited, directly to the concerned authorities as per assessment/demand made by them. It is the case of the landlord Rafat Ali Khan that the tenant defaulted in the payment of rent at the commencement of the tenancy agreement for the thirty year of the tenancy period i.e, 1-11-1991 to 31-10-1992 and also did not make payment of water and conservancy charges to the concerned authorities within the stipulated period which also amounted to default in payment of rent in view of the terms and conditions of the aforesaid tenancy agreement. In addition to the default in payment of the rent landlord Rafat Ali Khan also complained against his tenant of having carried out alterations, additions and unauthorised construction in the premises in dispute without obtaining his prior consent. The stand taken by the tenant Messrs. Organon Pakistan (Pvt.) Ltd. Is that they did not commit any default in the payment of rent for the tenancy period, effective from 1-11-1991 to 31-10- 1992 and further that the additions/alterations and unauthorised construction were made by them to suit the purpose and object for which the property in dispute was taken on rent. It was further submitted that the rent for the period from 1-11-1991 to 31-10-1992 was validly tendered to the landlord in accordance with the terms of the agreement and on refusal of the landlord to accept the same, the tenant was forced to deposit the same in miscellaneous rent case in the Court. With regard to the unauthorised alteration and construction it is the case of tenant Messrs Organon Pakistan (Pvt.) Ltd. That the same were of temporary nature made with a view to suit their purposes and to render the premises more useful and advantageous for achieving their purpose. The tenant submitted that all the alterations, additions or constructions were of purely temporary nature which could be removed at any time, resulting in restoration of the property to its original and normal position. It was further submitted that such alterations, additions and construction were not structural or material in nature and did not impair the value and the utility of the property or caused any ever lasting or eternal damage.
3. The Rent Controller on the basis of the evidence recorded before him decided the issue of default in payment of rent against the landlord while the issue with regard alterations, amendment and raising of unauthorised construction was decided against the tenant and on the basis of this finding, the tenant was ordered to be evicted from the premises in dispute.
4. Both the parties felt aggrieved and dissatisfied with the impugned order of the Rent Controller.
Landlord Rafat Ali Khan was not satisfied with the finding of the Rent Controller in not holding the tenant to be defaulter in payment of rent while the tenant Messrs Organon Pakistan (Pvt.) Limited felt aggrieved by the finding of the trial Court holding them to be guilty of making unauthorized alterations, additions and construction in the premises in dispute.
' Hence the parties filed the aforesaid two Appeals. As both the appeals arise out of the same order and common questions of law and facts are involved therein between the same parties, both of them will be disposed of by this order.
5. I have heard the arguments of Mrs. Haleema Khan, learned counsel for landlord Rafat Ali Khan and Mr. Khalid Habibullah, learned counsel for tenant Messrs Organon Pakistan (Pvt.) Ltd. I have also perused the relevant law as well as the case-law referred to me by the learned counsel for the parties.
6. The Rent Controller had decided the issue of default in favour of the tenant and held it not to be a defaulter. The Rent Controller had based his aforesaid finding on the ground that according to him the default in question did not pertain to rent due inasmuch as it was in respect of advance rents or future monthly rent which had not become due and payable so as to come within the definition of rent due as envisaged in the Sindh Rented Premises Ordinance. The Rent Controller had observed that in October, 1991 no rent in respect of the premises in dispute had become due and payable and the same would have become due after M-10-1991 when the premises had been used by the tenant for further one month thereby exonerating the tenant from being required to make payment of the said rent in the month of October, 1991 and his failure to pay the same in October, 1991 could not be deemed to be a default. The reason given by the Rent Controller for his finding is not at all convincing and acceptable. The aforesaid parties had executed an agreement of tenancy dated 19-11-1989 wherein they had agreed to the terms and conditions with regard to the payment of advance rent. An agreement between the parties for payment of rent of the premises in advance can be properly and validly arrived at as the same is not repugnant to any provision of the Sindh Rented Premises Ordinance or any other law and would be operative and binding thereby requiring the tenant to pay the rent to the Rent Controller in advance of each calendar month according to the terms of the tenancy agreement. In the present case clause (iii) of the Tenancy Agreement required the tenant to pay one year's rent in advance from the third year of tenancy. In view of the above, the reasons assigned by the Rent Controller for his findings are not satisfactory and cannot be accepted.
7. Notwithstanding the above the finding of the Rent Controller in not holding the tenant to be a defaulter is to be found correct from another angle. It is evident that the tenant had addressed two letters to the landlord alongwith the cheque of rent for the period from 1-11-1991 to 31-12-1992 on 10- 10-1991 and 22-10-1991, which fact was completely denied by the tenant. However, during the proceedings in the trial Court the tenant obtained a certificate from Postmaster, Saddar Post Office, certifying that the letters dated 10-10-1991 and 22-10-1991 were delivered to landlord Rafat Ali Khan on 13-10-1991 and 27-10-1991 respectively. Both the aforesaid letters were said to have contained the cheques for the advance rent for the period from 1-11-1991 to 31-10-1992 and, consequently, the tenant duly tendered the rent to the landlord. In this connection it will be appropriate to refer to the evidence of Muhammad Ishaque, Town Inspector, Postal Department who was examined by the tenant in Court and who had brought the file containing the details of the registration of letters Nos.168 and 156 dated 10-10-1991 and 22-10-1991 respectively. Muhammad Ishaque in his evidence stated that the aforesaid two letters bore address of landlord Rafat Ali Khan and were delivered at the given address. Mrs. Haleema Khan had laid great stress on the evidence that the address of landlord Rafat Ali Khan was 159-A, whereas witness Muhammad Ishaque in his evidence categorically stated that the aforesaid two letters were addressed to Rafat Ali Khan at 157-A, as such the two letters in question could not have been delivered to landlord Rafat Ali Khan as both the said letters would have been delivered to somebody residing at 157-A. This contention is without any substance in view of the explanation given by Muhammad Ishaque that the address of landlord Rafat Ali Khan is 159-A Sinai Muslim Housing Society which he had earlier mentioned as 157-A on account of improper legibility of the address appearing in the photostat copies of the envelopes of the aforesaid two letters but from perusal of the original record it was to be seen that the number of the house given in the aforesaid two letters was 159-A. Thus, the claim that the aforesaid two letters were delivered at the wrong address is absolutely baseless. The above circumstances make it clear that the tenant had tendered the rent to landlord Rafat Ali Khan by sending the cheque towards advance rent for the period from 1-11-1991 to 31-12-1992 on two separate occasions but the landlord refused to accept the same, denying to have received the letter, which fact stands belied.
' The question of tender of rent by money order by the tenant in favour of the landlord did not arise in the circumstances of the case as the amount of rent would be about Rs,3,00,000 and according to the Rules applicable for remittance of money by way of money order, a maximum amount of Rs,10,000 can be remitted. Thus, the failure of the tenant to remit the rent by means of money order was not warranted and the only mode open to him was to start depositing the rent in Court, which he did. In the circumstances the tenant cannot be said to be a defaulter in payment of rent. In this connection it will be useful to refer to the cases of (i) Dr. Wasif Ahmed Jalali v. Ghazala Iqbal, reported in 1996 MLD 1733. In this case a learned Single Judge of this Court was pleased to hold that an agreement to pay rent in advance was not repugnant to any provisions of the Sindh Rented Premises Ordinance, would be operative and the tenant would be bound to pay the rent to the landlord in advance on each calendar month according to the terms of tenancy agreement. The learned counsel for the landlord referred to me the cases of : (i) Noor Ali and another v. Syed Fareeduddin, reported in 1993 MLD 1832 and (ii) Rahmat Khan v. Hamida, reported in 1992 MLD 1685.
From perusal of the aforecited case I am unable to understand as to how the dicta laid down in the aforecited cases is of any help to the landlord in support of the contention of the tenant having committed default in payment of rent. The order/judgment in the case of Pakistan Flour Manufacturers v. Sadiq Ishaque and others, reported in 1992 CLC 482, referred to by Mrs. Haleema Khan, learned counsel for the landlord is also of no help in deciding this case as the facts in the cited case were different as the landlord therein had failed to establish that he had remitted rent to the landlord before depositing the same in Court.
9. With regard to the issue of making alterations, additions and of raising unauthorised construction, it is to be observed that according to Sub-clause (c) of clause (4) of the Lease Agreement, the tenant had covenanted with landlord not to make additions and alterations, which effect the structure of the demised premises without prior consent of the lessor, i.e, the landlord. It has been contended on behalf of the landlord that the additions, alterations and unauthorised construction raised by the tenant not only impaired the value and utility of the premises in dispute but also violated the terms and conditions of the lease agreement which rendered the tenant liable to eviction as the same were made without obtaining prior consent of the landlord. On behalf of the tenant it was submitted that clause (4) of the lease agreement required prior consent of the landlord only in respect of additions and alterations which would effect the structure of the premises in dispute and that no such prior consent was required for the purpose of making temporary additions and alterations which did not have any effect on the structure or design on the premises in dispute. It was further submitted on behalf of the tenant that the landlord has failed to establish that the alleged additions by way of erecting a shed for offering prayers, conversion of the kitchen for use as dining-room and that of the servant quarter as a kitchen were additions or alterations of such a nature so as to bring a change in structure or design of the premises so as to require the tenant to obtain or seek prior approval or consent in writing of the landlord in accordance with clause (4) of the lease agreement. It was further submitted that clause (4) of the lease agreement is very clear and unambiguous and the tenant was under no obligation to obtain prior approval or consent of the landlord in writing for making the above alterations and modifications and thus no violation of any terms and conditions had taken place which could provide the landlord with a ground for seeking eviction of the tenant. The contention advanced by the learned counsel for the tenant merits consideration and the learned counsel for the landlord was unable to rebut the same. The learned counsel for the landlord was unable to advance arguments either to establish that either the additions and alterations effected the structure or the basic design of the premises in dispute or prior consent of the landlord was required in every case of additions and alterations irrespective whether it effected the structure or the basic design of the premises in dispute or not.
10. From the above I am of the view that the landlord has failed to establish the issue of breach or violation of the terms and conditions of the lease agreement on the basis of which the tenant could be ordered to be evicted.
11. The next question which requires consideration is whether the aforesaid additions and , alterations by way of putting a shed for offering prayers, conversion of the kitchen in to dining- room and the servant quarters in to kitchen as well as conversion of electric meter from residential to commercial impaired the value and utility of the premises in dispute. On this point there is only the word of the landlord that the aforesaid additions, alterations impaired the value and utility of the premises in dispute. It was submitted on behalf of the tenant that it was incumbent for the landlord to have examined an Architect or some other technical person on the question as to whether the aforesaid additions and alterations had impaired the value and utility of the premises in dispute and the sole words of the landlord would not be sufficient to conclusively prove the impairment in the value and utility. In this connection the learned counsel for the tenant has placed reliance on following cases:-
(1) Muhammad Mirza v. Muhammad Hussain Gani, reported in PLD 1983 Karachi 162;
(2) Zainab Bai and 2 others v. Shafiuddin, reported in PLD 1987 Karachi 116;
(3) The Karachi Stock Exchange Ltd. v. Muzaffar Hussain Shah, reported in 1989 CLC 757;
(4) Abdur Rehman v. Aslam Ahmed and another, reported in 1991 MLD 449;
(5) Syed Qudrat Ali v. Mst. Maqbool Fatima and 3 others, reported in 1989 CLC 599; and
(6) Muhammad Usman v. Muhammad Usman, reported in 1983 CLC 2875.
12. I have gone through the aforecited cases relied upon by the learned counsel for the tenant. The observations and pronouncements made in all the aforecited cases are to the effect that in order to determine the question of the materially impairing the value and utility of the premises, the entire aspect of changes i.e, additions and alterations would have to be considered minutely and a mere statement of the alleged additions and alterations would not be sufficient to entitle the landlord to evict the tenant. Following the aforecited observations and taking into consideration minutely the additions and alterations which consisted of putting or erecting a temporary shed in the open space for offering prayers which was removed when objected to by the landlord: conversion of the kitchen into dining room after removal of the fittings, fixtures and wall cabinets and of the servant quarter into kitchen, the presence of an opinion by an expert or a technical hand to prove that they impaired either the value or the utility of the premises in dispute, would not be necessary as a close and minute consideration of the additions and alterations resulting in the changes of the premises would suffice to determine this issue. It is in evidence that the tenant had removed the cabinets from the kitchen but according to the counsel of the tenant the same was done as more than half of them were worm or moth-eaten and had to be removed and this fact was brought to the notice of the landlord asking him to take-away the wooden cabinets from the kitchen. There is also averment that the tenant removed other fittings and fixtures from the kitchen before using the same as a dining-room. Similarly, conversion of the servant quarter into kitchen required alterations and additions therein before using it as a kitchen. The modifications and alterations were claimed to be minor as they did not bring about changes in the structure of the design of the premises. However, the additions, modifications and alterations were made with the intention that they would continue to remain or exist so long as the tenant was to remain in the premises as tenant and he intended to use the changed or the altered portion till he remained in the premises as tenant. Mr. Halima Khan the learned counsel for the landlord submitted that such additions and alterations would be considered to be of permanent nature, thus, rendering the tenant liable to eviction. In support of her above contention Mr. Halima Khan placed reliance on the case of Muhammad Ibrahim v. Usa Rani Anard, 1988 CLC 925. After going through the judgment in the aforecited case, I find that pronouncement made therein is applicable to the facts of the present case and Mr. Khalid Habibullah, the learned counsel for the tenant was unable to satisfy that the' observation or the pronouncement would not apply to the present case. The tenant by conversion of the Kitchen into dining-room and the servant quarter into kitchen, which alterations or modifications were to last till the period of tenancy was to last, changed the character and shape of the premises leading to impairing the utility of the premises if not the value of the premises. The question of impairing or diminishing the utility of the premises is to be examined keeping in view and taking into consideration the requirements, needs and the utility of the premises of the landlord and not those of the tenant. In support of the above proposition reference may be made to the case of M/s Al-Noor Education Society, Karachi v. K. Mushtaq Ilahi, 1993 CLC 1798. Mr. Khalid Habibullah submitted, without conceding, that at the most the alterations and modifications referred to above can be taken to have impaired the utility of the premises whereas the law requires that these alterations and modifications should result both in impairing the value as well as utility of the premises so as to entitle the landlord to seek eviction of the tenant. This contention is without any substance because of the view expressed in the case of M/s. Al-Noor Education Society v. K. Mushtaq Ilahi, (supra) and Rana Khalil-ur-Rehman v. Addl. D.J. Lahore and 2 others, PLD 1983 Lahore 331 that the words "value" or "utility" used in Sindh Rented Premises Ordinance as well Punjab Urban Rent Restriction Ordinance have to be read as independently and disjunctively and it is not necessary that the impugned act must impair both the value and the utility of the premises, but it will suffice if material impairment is either of financial value of the premises or of utility for the purpose of landlord. It was submitted by Mr. Khalid Habibullah that the additions, alterations or modifications referred to above were purely of temporary and minor nature which did not bring about any structural or basis changes or modification in the premises in dispute and further that they were of such a nature which could be undone at any stage resulting in restoration of the premises in dispute to its original design and shape and resultantly such additions, alterations or modifications could not be said to have resulted in materially impairing the value or utility of the premises in dispute. This contention holds no ground in view of the established principle that removal of unauthorized construction and restoration of the property to its original design and shape would not absolve the tenant of the consequences arising out such unauthorised alterations and modifications. In support of the above proposition reliance is placed on the views expressed in the case of Mst. Rehmat Bai and 9 others v. Shireen and 6 others, reported in 1985 CLC 287. In the light of the above discussions I have not the least doubt in my mind that the landlord has succeeded in establishing that the alterations and modifications resulting in conversion of the kitchen into dining-room and the servant quarter into kitchen were made without prior consent of landlord and materially impaired the utility of the premises in dispute. The finding of the trial Court on this issue is proper and valid and no case is made out for interference therewith.
13. The question of the default with regard to non-payment or delayed payment of the water and conservancy as well as electric charges by the tenant to the concerned authorities was not passed by Mrs. Halima Khan, the learned counsel for the landlord.
14. Upon the above discussions I hold that both the landlord and the tenant failed to make out that the findings of the trial Court on the issues of default and impairing the value and utility of the premises in dispute is based on proper appreciation of the facts of the case, evidence on record and the law applicable thereto and no interference is required therewith. Accordingly, both the aforesaid appeals filed by the landlord and the tenant stand dismissed with cost to the landlord throughout. The tenant is directed to hand over vacant possession of the premises in dispute to the landlord within sixty days.