' The parties, as well as the premises subject of the dispute, in both these appeals are same. The appellant is tenant of the respondent in Shop No,20, Royal Apartment Plot No,SB-3, K.D.A. Scheme No,1, Karachi, since 1991.
2. On 5-9-1995, the respondent filed Rent Case No, 505 of 1995 before the VII Senior Civil Judge and Rent Controller, through her attorney Muhammau Ashraf, for ejectment of the appellant, on the ground that he had made alterations in the shop impairing its utility and value. This Rent Application mentioned that a rent case on the ground of default had been filed against this tenant, but that case on the ground of default and requirement for personal bona fide use was filed one week thereafter on 12-9-1995. That was Rent Case No, 514 of 1995.
3. Both the cases were proceeded with separately and both were decided by separate judgments, but on the same date. Against these two judgments, these two appeals have been filed.
4. In Rent Case No, 505 of 1995, the learned Rent Controller ordered eviction of the present appellant holding that he has impaired the utility and material value of the shop by removing a wall and demolishing bathroom. In the other case, eviction of the appellant was ordered on the ground that the shop was required by husband of landlady for bona fide use.
5. Learned advocates on both sides have filed written arguments. In, both the cases, the total evidence on behalf of the respondent/applicant comprises affidavit of her attorney sans cross- examination. The contention of learned advocate for the appellant is that he was not allowed to cross-examine the witness of the respondent/applicant despite two applications filed by him for the purpose. The case of the learned advocate for the respondent is that the appellant/opponent failed to cross-examine him and, therefore, his side was closed, and since the witness was not cross-examined, his evidence proved everything required.
6. Since this is the sole evidence on behalf of the respondent/applicant in the two cases, the evidentiary value of the affidavit of the respondent's attorney, not subjected to cross-examination, is the deciding factor in the two appeals.
7. The record of the lower Court shows that the Rent Controller closed the side of the applicant on the ground of default on the part of the opponent. This closure of applicant's side was practically to the advantage of the applicant herself. When the advocate for the opponent was praying, repeatedly, for permission to cross-examine the witness, there would have been no justification for the Rent Controller to withhold such permission.
8. Apart from this aspect of the matter, it is significant to note that evidence of attorney Muhammad Ashraf is his own evidence, as a witness, and that cannot be treated as an evidence and statement of the appilcant/respondent herself. One cannot delegate one's own function and authority to give evidence on one's behalf. The evidence of Muhammad Ashraf could merely be used for the purpose of corroboration of the evidence of the applicant/respondent or any other relevant evidence that could have been brought on record. The applicant-landlady in these cases chose to abstain from filing her own affidavit or appearing for her evidence.
9. The issue in Rent Case No,505 of 1995 is regarding impairment of the utility and material value of the shop in dispute by the appellant/tenant. The case of the appellant/tenant is that he has also hired adjacent Shop No,19 from its owner and had removed the intervening wall with the consent of the two owners as his business viz. Snooker Club needed interconnection of the two shops, and he demolished the bathroom also for the same purpose, with the permission of landlady, and it was done in 1991. He, however, admitted that no written permission was obtained for the purpose. He said that the Esate agent, through whom the shop was obtained on rent, got arranged for the removal of the wall with the consent of the owner. The appellant/opponent made an application for summoning the Estate agent to give evidence, but the request was declined by the Rent Controller with an observation that the opponent/appellant could have filed affidavit of the witnesses.
10. In any case, however, the plea of the opponent/appellant has not been denied by the landlady herself, who could only say whether she gave such consent or not. The statement of the attorney of the landlady that the landlady had not given consent for the alterations, can only be a hearsay.
11. The learned advocate for the respondent submitted that under the law it was the duty of the appellant to get written consent from the respondent to make additions and alterations. In this regard, he relied upon, the case reported in '1988 Supreme Court Monthly Review 689'. In that case, alterations were made by the tenant but he was also using the premises for a purpose other than the one it was hired for and it was this use, different from that it was hired for, that required written consent under the law viz. Section 15(2)(iii)(b). To make alterations to impair the utility and material value of the premises one does not need written consent of the landlord. Alterations and additions themselves, unless they are in violation of the agreement, are not a ground for eviction of the tenant. A tenant can be evicted if his acts impair the material value and utility of the premises. The witness of the landlady has simply said that by removing the wall and demolishing the bathroom the appellant has impaired the utility and material value of the shop. The appellant says that alterations were made with the consent of the landlady, who has not, herself, refuted the assertion.
The question of impairment of the value and utility is subsequent, depending upon absence of such consent.
12. In the Rent Case No,514 of 1995, the eviction of the appellant/tenant was sought on the grounds that he had committed default of rent, as well as that the landlady requires the shop for her husband, who intended to establish a general store therein. The learned Rent Controller found that no default was committed in payment of rent, but accepted the plea that the landlady requires that shop for bona fide use of her husband.
13. Neither the landlady, nor her husband appeared to place, before the Rent Controller, their case for their requirement, but on mere statement of the attorney that husband of the applicant has no other accommodation to start his own business hence she requires the shop for the personal need of her husband, the Rent Controller order eviction of the appellant from the shop in dispute.
14. The learned counsel for the respondent has relied upon some case-law wherein unrebutted statement of the landlord about personal requirement was accepted, but in the present case, there is no statement of landlady or the relative who requires the shop. There is statement of a third person only. That, too, has been rebutted through the evidence of the opponent/appellant.
Statement of a third person about the personal need of the owner cannot be accepted as conclusive to evict a tenant on this ground.
15. With regard to filing of separate cases, for eviction of the same tenant, from the same property, on different grounds, the learned counsel for the respondent has referred to the case of Haji Ghulam Rasool v. Mst. Halima Banker (1998 SCM R 547). A plain reading of that case will show that the law laid down is not that each ground requires a separate case. It is only that if one ground fails, the eviction can be ordered on the other ground that has been proved.
16. If more than one grounds for eviction of a tenant are available to the landlord at the time of filing a Rent Case, all of them may be made basis of one Rent Case. Filing of separate cases, within a short period, for eviction of a tenant, from the same property, on the basis of different grounds, generate presumption that the ground mentioned in the case filed subsequently was not available at the time of filing of the previous case. Rent Case No,505 of 1995 was filed on 5-9-1995 on the ground that alterations were made to impair the value and utility of the shop. Rent Case No,514 of 1995 was filed on 12-5-1995 on the grounds of default and personal use. The presumption would be that the grounds of default and personal use were not available when the first case was filed a week earlier. Such a presumption may be detrimental to the case of the applicant.
17. As discussed above, none of the grounds for eviction of the opponent/appellant was proved in the two cases, by the solitary evidence of the attorney, which was given undue weight by the Rent Controller. The two cases were liable to be dismissed. The impugned orders of the Rent Controller in Rent. Case No,505 of 1.995 and Rent Case No,514 of 1995 are, therefore, set aside and the cases are dismissed. Appeals are, accordingly, allowed with costs.