Find a Lawyer

First Rent Appeal No. 190 of 1983, decided on 19th August, 1986.

‑‑‑Ss. 2(f)(j), 15 & 21(1)‑‑Ejectment of tenant‑‑Relationship of landlord and tenant, proof of‑‑Tenant once accepting respondent as his landlord, held, could not dispute right of such landlord to file ejectment application against him.

‑‑‑S. 15 (2) (iii) (b)‑‑Ejectment of tenant on ground of misuse of premises‑‑There being no written agreement of tenancy between parties and disputed premises having been let out for commercial purposes of general nature without any specification, use of such premises for commercial purposes by installing printing press therein, held, would be covered by that purpose and could not be said that premises was being used for purposes other than that for which let out.

‑‑‑Ss. 15(2)(iv)(v) & 21(1)‑‑Impairing value and utility of premises‑ Nuisance to neighbours‑‑Proof‑‑Facts of impairing value and utility of premises and nuisance to neighbours caused by tenant with installation of printing press in premises, held, could have been established by examining any neighbour, architect or any other independent witness‑‑In absence of any cogent and convincing evidence on behalf of landlord in that respect, negative finding of Rent Controller, could not be assailed.

‑‑‑S. 15(2)(vi)‑‑Ejectment of tenant on ground of reconstruction‑‑Duly approved plan in respect of premises required by landlord for reconstruction, produced in Court‑‑Omission of landlord to give particulars of construction in detail in ejectment application, held, would not lead to conclude that landlord had acted mala fide or requirement pressed by him lacked bona fide.

‑‑‑Ss. 15(2)(vi)(4) & 21(1)‑‑Reconstruction of premises‑‑Authenticity of approved plan‑‑Mere attachment of any condition by Authority to duly approved plan of premises, held, would not render such plan non‑existing in eyes of law‑‑Grant of ejectment was subject to rights conferred under S.15(4)‑‑In case of any non‑compliance on behalf of landlord, he would be subjected to action provided by law.

‑‑‑S. 21‑‑Production of additional evidence at appellate stage‑‑Application for‑‑Eviction of tenant on ground of reconstruction of premises on basis of approved plea was ordered by Rent Controller‑‑‑ After completion of mosque, tenant applying before Appellate Court to adduce additional evidence to prove that said mosque required no further extension‑ Mosque no doubt was completed but shops according to approved plan were yet to be constructed‑‑Appellate Court, considering additional evidence unnecessary for disposal of appeal, dismissed application of tenant for additional evidence.

Zaffar Hadi Shah for Appellant.

I.M. Patel for Respondent.

Date of hearing: 19th August, 1986.

In the year 1971 the respondent filed an ejectment application against the appellant in respect of Shop No.5 on the ground floor of the building known as Sabeel Building situated on Plot SB‑1/29 and 29‑A, Napier Street Saddar, Karachi. The ejectment was sought on the grounds that the appellant has without the consent of the respondent converted the use of the said shop into a printing press by installing machinery therein, and got the premises rewired with three phases connection. It was further alleged that the aforesaid acts are likely to impaire materially the value and utility of the building and causing nuisance to the neighbouring occupants. It was also alleged that the premises is reasonably and in good faith required by the respondents for construction of larger mosque after demolishing the existing structure including the existing mosque. The learned Controller by the impugned order granted ejectment only on the ground that the premises is bona fide required by the respondent for reconstruction according to the approved plan. On all other issues the finding was in the negative. The appellant had challenged the maintainability of the application on the ground that the respondent is not a registered society and is not entitled to file the ejectment application. From the impugned order it seems that this issue was not argued and the finding was that it has not been proved. Mr. Zaffar Hadi Shah the learned counsel for the appellant has pressed this issue on the same ground. The relationship between the landlord and tenant is not disputed and once the appellant as accepted the respondents as landlord he cannot dispute its right to file ejectment application.

The respondent has also filed cross‑objection challenging the finding of the learned Controller on issues whether the premises is being used for the purposes other than it was let out and whether the acts and conduct of the appellant are likely to impaire materially the value and utility of the building and are nuisance to the neighbouring occupants. The learned counsel has referred to evidence produced by the parties to establish that admittedly the appellant had installed printing press which was closed after the notice was served on the appellant. In his statement the appellant admits the installation and closure but he has denied that it was due to reasons alleged by the respondent and has explained that the printing press was closed because of his ill health.

The point for consideration is whether the appellant has used the premises for purposes other than it was let out. In this regard the respondent has examined its secretary. It is an admitted position that there is no agreement of tenancy in writing. The other admitted fact is that the premises is a shop for commercial purposes which is general in nature without any specification. The burden of proof was on the respondent to establish this issue. In the face of scanty evidence to that effect, in my view, this issue has not been established. The appellant is using the premises for commercial purpose and installation of the press is covered by that purpose.

The other question arises is whether the installation of the press and rewiring in three phases has materially impaired the value and utility of the shop. Except the words of the respondent's secretary there is no independent or reliable evidence to show that the alleged act of the appellant has in any manner impaired materially the value or utility of the building and is causing nuisance to the neighbouring occupants. These facts could have been established by examining any neighbour, architect or any other independent witness. In the absence of any cogent and convincing evidence the finding of the learned Controller on this issue cannot be assailed.

Now coming to the contention raised by Mr. Zaffar Hadi Shah, Advocate, on question relating to bona fide requirement of the premises, it is pertinent to note that in the application the respondent has disclosed his bona fide requirement i.e. the construction of a larger mosque. There is no mention that the shop will also be constructed after demolishing the old building which consists of many shops and the mosque. There is discrepency in the averment made in the application and in the evidence from which it is established that the respondent is to reconstruct the mosque as well as the shop according to the approved plan. The said plan has been produced in Court and the omission to giving particulars of construction in detail in the ejectment application will not lead to the conclusion that the respondent has acted mala fide or the requirement pressed by the respondent lacks bona fide.

The learned counsel for the appellant contended that there are several tenants against whom ejectment application has not been filed and this shows lack of bona fide. Mr. I . M. Patel the learned counsel has contended that many cases have been filed against the tenants but no case has been filed against those tenants who have settled their dispute with the respondent. This explanation seems to be reasonable. The only point for challenging the approved plan is that approval is subject to amalgamation of two plots. Merely because there is a condition attached to the approved plan it does not mean that the plan does not exist in the eye of law. If there is any non‑compliance the respondent shall be subjected to such action as provided in law. In my view the finding of the learned Controller granting ejectment on the ground of bona fide reconstruction does not require interference. The grant of ejectment will be subject to the rights conferred under section 15(4) of the Sind Rented Premises Ordinance and/or section 13(5‑B) of the West Pakistan Rent Restriction Ordinance.

It is an admitted position that the disputed shop is situated facing main road. In the approved plan there are many shops facing the main road. While deciding the allocation of the shop in the reconstructed building the Controller shall keep in mind the location of the shop as the appellant has expressed his intention to enforce this right.

Mr. Zaffar Hadi Shah the learned counsel has filed an application under section 21 for additional evidence or examining the site as according to him the mosque has been completed but it does not require any further extension. Mr. Patel states that the mosque has been completed but the shops according to the approved plan are yet to be constructed. In these circumstances additional evidence is not necessary for disposal of the appeal. The application is, therefore, dismissed.

In view of the fact that there are several shops which are occupied by tenants and the first floor premises is also occupied by school is admitted by Mr. Patel, it would be just and proper that the appellant is ejected at an appropriate time. Mr. Patel stated that the first floor construction will be demolished first. The appellant shall, therefore, handover possession to the respondent after the first floor has been demolished and a notice of one month for handing over possession has been served by the respondent. If the appellant does not vacate the premises writ of ejectment shall be issued. Subject to the aforestated observations the appeal is dismissed with no order as to costs.

H.B.T. Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.