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First Rent: Appeal No. 303 of 1982, decided on 13th April, 1983.

‑‑ S. 13 ‑ Eviction proceedings ‑ No issue suggested by landlord as to whether tenant violated terms of tenancy ‑ Alleged unauthorized construction made by tenant made outside disputed premises found temporary in nature‑ not impairing utility of premises ‑Tenant on notice served by landlord removing cons truction made and consequently grievance of landlord removed Eviction of tenant declined, in circumstances.

Malik Bahaudin v. Muhammad Anwar Sipra 1979 C L C 774 ref.

Rustom J. E. Kaikobad for Appellant.

M. A. Kazi for‑ Respondent.

Date of hearing: 13th April, 1983.

This is an appeal challenging the order passed by the learned Controller whereby application for ejectment under section 13 of the Urban Rent Restriction Ordinance, 1959 was granted. The ‑appellant is a tenant in respect of ground floor flat for the last 40 years. It is alleged that the appellant has demolished the boundary wall and by putting shutters has constructed three shops. The respondent served a notice dated 30th September, 19 79 on the appellant notifying the unlawful and unauthorised construction made by him and called upon him to desist from subletting and remove the illegal construction failing which Civil and Criminal pro ceeding shall be instituted. On 20th December, 1979 ejectment application was filed on the ground that the appellant has raised unauthorised cons truction without the permission of the respondent thereby materially impairing the value and utility of the building and further that the appellant by such unauthorised act has contravened the terms and conditions of the tenancy. The appellant filed written statement denying the allegation and pleaded that tie was seeking permission from the respondent to repair the boundary wall but he wanted him to surrender the open space and on his refusal action has been taken. He pleaded that he had repaired the boundary wall and denied that shutters were fixed or terms of tenancy have been violated. The learned Controller framed the following two issues :‑

"(1) Whether the opponent has carried out the addition and alteration having materially impaired the value and utility of the premises in dispute

(2) What should the order be "

2. It is significant that no issue has been suggested by the respondent whether the appellant has violated the terms of tenancy and is liable to be ejected. The parties went on limited issues framed by the learned Controller. The main ground for ejectment is, as stated by the learned Controller, that the appellant had demolished the boundary wall and fixed shutter without oral or written consent of the respondent. From the evidence it seems that the boundary wall had been removed by the appellant and in its place shutters were fixed. The respondent had produced photograph to show that shops had been constructed on the boundary wall. In fact the respondent himself admitted that after notice was served the appellant has removed the shutters. The question for consideration is whether the construction made by the appellant which has been removed, had materially impaired the value and utility of the building. The unauthorised construction made by appellant was outside the flat. He had fixed shutters in the boundary wall and, cement sheets were put on it. As this construction was note within the flat, it did not either damage the constructed area nor affected its accommodation.

3. Mr. Kazi the learned counsel for the respondent contended that ton make three shops three walls were raised projecting into the flat portion of which was included in the newly‑carved out shops, therefore, the utility and value of the building has been impaired. From the evidence those facts have not been established. The respondent has not stated that the walls were raised projecting inside the flat. On the basis of the evidence on record it was established that the boundary wall was removed and shutters were fixed and to cover the open space some corrugated sheets were placed. These constructions are not of permanent nature nor they will change the nature of the building. At best it can be said that in the open space the appellant has made a temporary construction and fixed shutters by breaking the boundary wall. The appellant had covered the open space by the temporary construction. This can hardly affect the flat in dispute. ,

4. Mr. Kazi contended that the appellant has violated the terms of tenancy and is liable to be ejected. He has referred to 1979 C L C 774. In this case on the top floor structural changes were made and, therefore ii was held that it was in violation of the terms of tenancy. It is significant that in this case a specific issue was tram.‑d whereas in the present case no such issue was framed.

It is pertinent to note that the respondent had served a notice on the appellant notifying that by constructing shops he has violated 03C terms of tenancy and called upon him as follows :‑

"This is, therefore, to warn you to desist from your malicious activities and get the wall reconstructed failing which my client shall be constrained to launch legal proceedings against you both civil and criminal entirely" at your risk as the costs and consequences which please note."

By this notice while making certain allegations against the appellants he was required to reconstruct the boundary wall in its original positron and in case it was not done the respondent would take legal action again3t the appellant. The demand made by the respondent fn his notice was complied. The respondent had admitted that the shutters have beer removed therefore the grievance of the respondent stands removed. Thereafter, there was no cause left with the appellant. In the present cake, as stated earlier, the issue whether the appellant had violated the terms of tenancy was not framed and, therefore, it cannot be expected that a party should be put to trial on a charge which is not at issue'. The Controller did not frame such an issue but the appellant also did not insist on it nor asked the Controller to frame such an issue.

For these reasons the appear is allowed with no order as to cost.

M. Y. H. Appeal allowed.

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