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Before Abdul Razzak A. Thahim, J
ZAINAB BAI AND 2 OTHERS-Appellants
versus
SHAFIUDDIN - Respondent
First Rent Appeal No. 114 of 1984, decided on 27th November, 1986.
Sind Rented Premises Ordinance (XVII of 1979),
S. 15-Default in payment of rent and infringement in conditions of agreement-Finding of Rent Controller that no default was com mitted by tenant not challenged by landlord-As for infringement, lease agreement already expired and no fresh agreement executed-- Landlord failing to examine any Engineer or Expert to show that by acts of tenant material value or utility of premises had been affect ed-Rent Controller, while stating that loss of casement was a material impairment which diminished rental value of apartment, giving no reason therefor-Tenant only making minor alteration which was not likely to impair material value or utility of premises --Order of eviction passed by Rent Controller on ground of impair ment of material value or utility of premises set aside in circum. stances.
P L D 1979 Kar. 579 ; 1982 C L C 42; P L D 1982 S C M R 33; P L D 1978 Lah. 815 ; 1984 C L C 1073 and P L D 1983 Kar. 162 ref.
rel. Shaikh Abdul Sattar v. Muhammad Afzal and others P L D 1985 S C 148
Shaikh A. Aziz for Appellants.
Agha Fakir Muhammad for Respondent.
Date of hearing : 27th November, 1986.
Rent Case No. 3206 of 1982 was filed by landlord/Shafluddin under section 15 of the Sind Rented Premises Ordinance, 1979 (hereinafer referred to as the Ordinance) on the ground of default in payment of rent and infringement in the conditions of the agreement. It is stated that respon dent has raised the front wall of the front side gallery and shifted gyser from the bathroom to terrace without the consent of the respondent. It is also alleged that driver of the tenant is using the garage as his resi dence.
2. Appellant, in her written statement, denied the default and stated that various amenities including the terrace, gallery and the gyser, and garage facility have been continuously used by the appellant for several years with the consent, approval and knowledge of the respondent and there is no question of any unauthorised use or alteration of the premises as alleged.
3. Respondent/landlord, examined himself and corroborated the con tents of his written statement and stated that appellant raised the front wall of the front side gallery and shifted the gyser from the bathroom to the terrace and extended gas line upto the terrace without his consent when he was out of the country and on return to Karachi he asked the appellant as well as her son A. K. Soomar to bring the front wall of the front gallery to its original position and shift the gyser from the terrace to bathroom and use garage for car parking only. On which they promised that front wall of the front side gallery is to be brought to its original position and gyser would be shifted to the bathroom and garage would be used for car parking only but he found that this promise was not fulfilled, therefore, a legal notice was sent. He has also stated that he did not receive the rent from June till the filing of the case.
4. On behalf of the appellant her son and attorney Muhammad Umar were examined. He has taken the same stand as in the written statement. He stated that due to small wall of about one foot high and a small iron grill of about 2j feet high in the entire gallery lounge measuring 14 feet long, the house was fully exposed from the opposite house, and from the road no Purdah could be maintained for the womenfolk and it was also dangerous for the small children, as such with consent of the respondent the wall was raised to about 3 feet more on the same gate few months after the letting out of the premises. He has also stated that gyser was originally installed in one of the bathrooms which is small in size as such the entire bathroom got suffocated and chocky due to running of gyser. His mother being an old lady of about 80 years could not bear the suffocation as such with the consent of the respondent the gyser was removed from the bath room to the terrace about 12 years ago. He stated that his mother is a heart patient and these amenities were being continuously used for about 12 years with the consent, approval and the knowledge of the respondent. It is stated that constructing of a wall or shifting of gyser have not impaired the material value and utility of the premises but rather enhanced it. He has denied the default.
5. The Rent Controller, on the pleadings of the parties, framed the following three issues :-
"(1) Whether the appellant has infringed the terms and conditions of the tenancy
(2) Whether the appellant raised front wall of gallery shifted gyser and gase line the terrace and put the garage to residential use, if yes, what effect
(3) Whether appellant committed default in payment of rent "
6. The findings of the Rent Controller on the default of the payment of rent are against the respondent. He has stated that no default has been committed. This has not been challenged. Now only question remains whether appellant has infringed the conditions on which the premises were let out or committed such acts as are likely to impair the material value or utility of the premises.
7. I have heard Mr. Shaikh A. Aziz and Mr. Agha Fakir Muhammad, Advocates.
8. It is contended by Mr. Shaikh Aziz that agreement which was executed in November 1959, was for two years and it has not been renewed, therefore, the conditions of the agreement are not binding on the appel lant. He has submitted that this rent case was filed with mala fide as from the record it is clear that no default was committed in spite of that this ground was shown in the rent application. It is argued that in the evidence it has been admitted that if enhanced rent is paid, the respondent is prepared to accept. It is contended that these minor changes were made with the consent of the respondent since 10-12 years. On this he has referred to the cases reported in P L D 1979 Kar. 579, 1982 C L C 42 and P L D 1982 S C M R 33. He has also referred to the cases reported in P L D 1978 Lah. 815, 1984 C L C 1073 and P 1. D 1983 Kar. 162 and stated that these changes have not materially affected the demised premises.
The contention of Mr. Agha Fakir Muhammad is that appellant has violated the conditions and the structure of the building has been changed and no such permission was granted by the respondent to shift the gyser or construct the wall on the gallery. It is also argued that garage is being used as a residential accommodation. He has not cited any case-law in support of his contention.
9. The admitted position is that the lease agreement has expired and no fresh agreement has been executed between the parties, therefore, in A view of case of Shaikh Abdul Sattar v. Muhammad Afzal and others (P L D 198 5 S C 148), after the expiry of agreement rights and liabilities of tenant are governed by the provisions of the law which regulate in terms as to an ejectment. In this context I refer to section 15(2) (iv) which reads as under :-
"Section 15(2)(iv). If tenant has committed such acts as are likely to impair the material value or utility of the premises."
On this point there is only oral evidence of both the parties. Respon dent Shafiuddin, landlord, has not examined any Engineer or Expert to B show that by the acts of appellant the material value or utility of the premises has been affected.
10. The contention of appellant is that verbal permission was granted. In case of Naeem Metal and Plastic Works and others v. Azra Vaqar (1984 C L C 1073) it has been held at page 1075 as under :-
". . . The learned Rent Controller had simply referred to alter ations and additions admitted by the same must have materially impaired the value of the building. The evidence on this point is only of Vaqar Ahmed (Exh. 7) husband of the appellant who had simply stated that some alterations etc. have been made by the appel lant in the building, but he does not state that these alterations etc. have in any way reduced the value of the building. The finding of the learned Rent Controller cannot, therefore, be upheld as it is based on no evidence on this issues."
The Rent Controller in this order has stated that loss of easement is a material impairment of material utility which diminishes the rental value of the apartment. I am not inclined to agree with this. He has not given the reason who these minor alterations have impaired the value or utility of the premises.
In case of Muhammad Mirza v. Muhammad Hussain Ghani (P L D 1983 Kar. 162), it has been held that by removing of an old door and replacing it with a new door and lintel above it, no impairing of the value and utility of the building could be conceived. In the same case the definition of word "Impair" has been taken from the Balletine's Law Dictionary (3rd Edn. 584) as under :-
"To make worse, to diminish in quality, value, excellence or strength, to deteriorate."
And finally held that for the purpose of coming to the decision whether the value and utility has been impaired the entire aspect of the so-called changes has to be considered.
11. For the reasons stated above, I am of the view that this change has not impaired the material value or utility of the premises as such the of and eviction order of the Rent Controller dated 13-3-1983 is set aside appeal is allowed with no order as to costs.
M, Y. H. Appeal allowed.
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