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First Rent Appeal No. 812 of 1982, decided on 19th September, 1985.

(a) Sind Rented Premises Ordinance (XVII of 1979)--

--S. 21(1)--West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13(2)(iii)--Eviction of tenant--Material impairment of value or utility of building--Mere alteration and addition in building by tenant, held, could not be considered as act which could make tenant liable to be ejected, unless such act impaired materially value or utility of building.

(b) Sind Rented Premises Ordinance (XVII of 1979)--

--S. 21(1)--West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13(3)--Ejectment of tenant--Personal requirement--Residential building could be acquired by landlord, if he required same in good faith for his own occupation or for occupation of any of his children- Uncle and cousins of landlord could not be treated as children of landlord--Requirement of building for accommodation of uncle and cousins of landlord, held, could not be treated as requirement of landlord's own use and occupation or for occupation of any of his children.

A. Alim K. Talib for Appellant.

M. Ismail Kassim for Respondent.

Date of hearing: 1st September, 1985.

This First Rent Appeal is directed against the order, dated 31-5-1982 passed by the VIth Senior Civil Judge and Rent Controller, Karachi, whereby the eviction application filed by the appellant was dismissed.

The facts which give' rise to this appeal are that appellant is he landlord of a house constructed on Plot No.R-8/8, Federal "B" Area, Karachi and the respondent is tenant in respect of portion of the said house who used it as a shop on a monthly rent of Rs.100. The appellant filed Eviction Application No. 2243 of 1972 on the grounds of default, damage to the property and personal requirement because of the reason that his family increased and children had grown up for whose proper residential use the premises were genuinely required. The respondent filed written statement and denied the allegations of default, damage to the premises and also denied personal requirement and averred that by harassing him the appellant wanted that he should either increase the rent or vacate the premises so that he could let out the same or exorbitant rent to some other persons.

The appellant filed affidavit-in-evidence in support of the application and also filed affidavit-in-evidence of Hafeezullah Khan. In rebuttal the respondent filed affidavit-in-evidence of Ghulam Hussain, his son and attorney. The parties were cross-examined by the respective counsel of the parties.

The Rent Controller, after taking into consideration the arguments of the learned counsel for the parties and on the basis of the evidence produced by the parties decided all the four issues in the negative, vide order, dated 31-5-1982.

The appellant being aggrieved against the order, dated 31-5-1982 of the VIth Senior Civil Judge and Rent Controller, Karachi, has preferred this First Rent Appeal on the grounds mentioned in the memo. of appeal.

Mr. A. Alim K. Talib the learned counsel for the appellant has contended that the findings on the grounds of damage to property and personal requirement are against the evidence on record.

On the other hand Mr. Ismail Kassim the learned counsel for the respondent has submitted that the findings of the learned Rent Controller are in accord with evidence on record.

With regard to the contention that the respondent had damaged the property by raising a Machan and had altered it without the consent of the appellant, it is stated by the appellant in his eviction application that the respondent had damage, the premises in dispute by raising a Machan and had altered it without his consent and when he protested on the damages and alteration, the respondent became quarrelsome with threats to him who being employee of K.E.S.C. The respondent also beat his uncle Farooq Ahmed. The appellant in his affidavit-in-evidence stated that the respondent damaged the premises by raising Machan and altered the same without his consent as a "Dhobi shop and laundry". He reiterated the same facts in his affidavit-in-evidence. The appellant in his cross-examination admitted that "the opponent is doing washing business in the premises in dispute from very beginning. It is incorrect to say that soon after taking the shop on rent he had constructed Machan etc. He had constructed the Machan about 6 or 7 months after it was taken on rent. I protested orally whereupon he started quarrelling with me. I did not serve him with any written notice. I had been accepting rent from the opponent even after filing the rent application." Hafeezullah Khan stated in his affidavit that "the respondent is using it as a Dhobi shop and by raising Machan and other conversions have damaged the same". Hafeezullah to a question in his cross-examination replied that "I do not know when the opponent had constructed 'machan' in the shop. I do not know th-a year or the period since when the shop is occupied by the opponent". The respondent in his written statement stated that "'Machan' is a wooden fixture which is necessary for carrying on the business of the opponent. Moreover this fixture was installed about one year back with the full consent and knowledge of the applicant". The attorney of the respondent in his affidavit-in- evidence stated that "the opponent put show-case, wall cabinet, 'machan' for iron on clothes etc., which are the essential prerequisite for running a washing shop. This all was done with due consent of the applicant since he has been residing on the back portion and he know fully by well that these amenities are being fixed in the shop premises. These fixtures were already there before filing of the above case. The applicant himself used to see while the same was in progress in any case the said furniture and fixture has added the value and utility of the premises in question muchless to say that the opponent has damaged the premises." The attorney of the respondent denied the suggestion in cross -examination that "there is Machan in the disputed shop. It is incorrect to say that there is Machan in the shop. It is incorrect to say that we made any addition and alteration and caused damage in the shop".

There is no evidence on the file that the respondent by his act caused such damage to the property which reduced its value or utility. The controversy was only with regard to Machan. The respondent in his evidence has totally denied having caused any damage to the premises or having made any addition and alteration which could impair the value and utility of the premises. Section 13(2)(iii) provides that the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land. It is, therefore, quite clear that only alteration and addition could not be considered such an act which makes the tenant liable to be ejected unless the same impairs materially the value or utility of the building. Since the legislature has qualified the acts which render liable the tenant to be ejected as these impairing materially the value or utility, the mere statement about alleged raising of 'Machan' cannot be considered to be sufficient for making the tenant liable to eviction. It seems that the learned Rent Controller rightly decided the issue in the negative. In the circumstances the contention is without force.

Reverting to the second contention of the learned counsel for the appellant that the appellant required the premises for his personal use. The appellant averred in his eviction application that his family increased and the children grew up for whose proper residential use the premises in dispute genuinely required. The appellant in his affidavit-in-evidence, stated that "I have with me not only my wife and many others but also two rooms in my occupation therein are hardly sufficient as the children have further grown up and the opponent knew all along very well my difficulties. The appellant admitted in his cross-examination that other shopkeeper vacated his shop during the pendency of the case and the shop is lying vacant. The appellant also admitted in his cross-examination that he does not have any child from his wife. He and his wife reside on the back portion of the premises. It has two rooms besides kitchen, bath and W.C. The respondent denied the suggestion that the present accommodation is quite sufficient for his residential purposes. He stated that his uncle Farooq Ahmed, his cousin Aijaz and Niaz and Zahoor also reside with him in the same premises. He wanted the shop in question so that they all may well be accommodated. They all have been residing with him from the very beginning. All of them are married. They were residing with their family members including children. They have 6 or 7 children. He denied the suggestion that they (he and his wife) are the only persons reside in the premises.

Section 13(3) of the Sind Urban Rent Restriction Ordinance, 1959 provides that a landlord may apply to the Controller for an order directing the tenant to put the landlord in the case of a residential building, if he requires 1t in good faith for his own occupation or for the occupation of any of his children. It is clear from these provisions that a residential building can be acquired by him for his own occupation or any of his children.

Mr. A.Alim Talib, the learned counsel for the appellant has contended that these two rooms will not be sufficient inasmuch as, the uncle and cousin Aijaz and Niaz, who also reside with the appellant and therefore it is argued that the learned Rent Controller is wrong in dismissing the eviction application. In my opinion, the uncle and cousins, in the facts and circumstances of the case, cannot be treated as children of the appellant. It appears that all of them are married. In my opinion, therefore, in the facts of the present case, the uncle and cousins, cannot be treated as children of the appellant and therefore their accommodation cannot be treated a requirement of his own use and' occupation or for occupation of any of his children.

In the result, the appeal must therefore, be dismissed. There will be no order as to costs.

H. B. T.

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