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First Rent Appeal No.973 of 1989, decided on 17th November, 1986.

---S.15(2)(iii)(b)--Eviction of tenant on ground of change in use of premises and infringement of conditions--Expression "house"- Connotation--Where tenancy agreement, described rented premises as house with full detail of its rooms and other things attached to it, identification of such premises as 'house' in tenancy agreement, held, would indicate that same was exclusively rented out for residential purposes--It would be utterly illogical to say that identification of disputed premises in tenancy agreement by itself was not indicative of use to which premises was intended to be put by tenant--Where disputed premises was indicated as "house" in tenancy agreement, it would be taken that parties had used expression 'house' in sense in which 'house' was understood in common parlance or as indicated by its dictionary meaning.--[words and phrases].

---S.15(2)(iii)(b)--Eviction of tenant--Change of .use--Proof--Where rented premises was identified merely as 'house' in tenancy agreement same, held, could be used only as residential house, but if such premises came to be used later on as office or godown by tenant, that would tent-amount to a change and such change by tenant without written consent of landlord would render tenant liable to be evicted from premises.

---S.15(2)(iii)(b)--Eviction of tenant on ground of change in use of premises--Tenancy agreement executed between parties being a charter of their rights, when rented premises were proved having been used by tenant for purpose other than one for which same was let out, landlord, held, would earn a right -to evict tenant on that ground and tenant would not be protected even if such unauthorised change was brought about by tenant either before or after promulgation of Ordinance XVII of 1979.

P L D 1981 S C 578; 1980 S C M R 590; P L D 1982.5 C 75 and 1985 C L C 1886 ref.

---S.15(2)(iii)(b)--Eviction of tenant on ground of change in use of premises--Tenant having no right to change use of premises without written permission of landlord, landlord's right under S.15(2)(iii)(b), held, would not be impaired by his acquiescence and waiver where tenant had breached conditions of tenancy and landlord admittedly had never consented to such breach.

---S.15(2)(iii)(c)--Eviction on ground of infringement of conditions of tenancy agreement--Terms and conditions contained in tenancy agreement evidently prohibited tenant from damaging premises in any manner whatsoever--By constructing stair case and two rooms on roof of rented premises without written consent of landlord, tenant, held, had committed breach of conditions of tenancy and was liable to be evicted on ground of infringement of conditions of tenancy agreement.

Ch. Muhammad Anwar Sipra v. Malik Muhammad Din Etc. PLD 1981 S C 491 ref.

--Ss.15(2)(iii)(b)(c) & 21(1)--Conclusions of Rent Controller that landlord had failed to establish grounds of conversion of use of premises as well as ground of infringement of conditions of tenancy by tenant being erroneous as not based on evidence of record was reversed by High Court and in interest of justice decided matter itself on basis of record instead of remanding case to Trial Court.

Wajeehuddin Ahmad and Mahfoozul Haq for Appellant.

Muhammad Ali Jan for Respondent.

Dates of hearing: 30th September; 2nd and 8th October, 1986.

This First Rent Appeal is directed against the 'order, dated 22-9-1984 passed by the VIIth Senior Civil Judge and Rent Controller Karachi, whereby, he dismissed the eviction application filed by the appellant.

The facts which give rise to this appeal are that the respondent is tenant of the appellant in respect of house No.964, Pir Ilahi Bux Colony at a rental of Fs.650 per month payable in advance before 1st of every English calendar month. The appellant filed eviction application No.131 of 1981 against the respondent on the ground of conversion of the use of the premises and also on the ground of infringement of conditions on which the demised premises was let out to the respondent. The respondent resisted the eviction application.

The appellant filed his own affidavit-in-evidence besides affidavit-in-evidence of Muhammad Arif Hussain. In rebuttal the respondent filed affidavit-in-evidence of Dost Muhammad, son and duly constituted attorney besides affidavit-in-evidence of Aziz Mian and Babu Vakil. They were cross-examined by the learned counsel for the respective parties.

The learned Controller on the basis of the evidence adduced by the parties and taking into consideration the arguments of the learned counsel for the parties, decided issues 1 and 2 in the negative and dismissed the eviction application vide order, dated 22nd September, 1984.

The appellant above named being aggrieved by the order, dated 22-9-1984 of the VIIth Senior Civil Judge and Rent Controller, has preferred this First Rent Appeal on the grounds mentioned in the memo of appeal.

Mr. Wajihuddin Ahmad, the learned counsel for the appellant has contended that the finding of the learned Controller on both the issues are erroneous and are on surmises and conjectures hence liable to be reversed.

On the other hand Mr. Muhammad Ali Jan, the learned counsel for the respondent has submitted that the order is in accord with the evidence on record.

The subject-matter of tenancy agreement, dated 18-11-1972 (Exh. 6-C) between the appellant and the respondent in the generic terms is "house". Hence, before adverting to the rival contentions canvassed on behalf of the parties, reference to such provisions of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the said Ordinance) as define the generic terms "building", "premises" and their species are necessary. Also is necessary for facility of reference, the extraction of the relevant provisions of the said Ordinance envisaging eviction on the ground of change of user.

Section 2, clause (a) of the said Ordinance defines building as under:

(a) "building" means any building or part thereof, together with all fittings and fixtures therein, if any, and includes any garden, garrage, out-house and open space attached or appertinent thereto;

Section 2 clause (h) defines "premises" as under:

(h) "premises" means a building or land, let out on rent, but does not include a hotel;

Section 15, subsection (2), clause (iii) sub-clause (b) of the said Ordinance, which envisages eviction of the tenant for change of user of the premises is in the following; terms:

"Section 15(2). The Controller shall, make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that--

(iii) the tenant has, without the written consent of the landlord--

(b) used the premises for the purpose other than that for which it was let out;"

A perusal of the provisions of the said Ordinance would show that the Controller shall make an order directing the tenant -to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that the tenant has, without the written consent of the landlord used the premises for the purpose other than that for which it was let out.

Considering now a hypothetical tenancy agreement such as the tenancy agreement wherein the premises let out is described only a "house" without any further description thereof except that the house consists of two big rooms, verandahs in the front and on the back, one small room, store, bath room and kitchen etc., with telephone No.413225, would such a tenancy agreement be considered to be implyingly indicating the use for which the demised premises is intended to be let out in my opinion, such tenancy agreement would be considered totally silent as to the use for which the demised premises is let out. The tenancy agreement would show as a house. Such a tenancy agreement by itself, would be considered silent for intended use by the tenant, to put the house to tenancy to any use without attracting the provisions of section 15(2)(iii)(b) of the said Ordinance.

The said Ordinance categories further the premises into building or land and the building is defined as any building or part thereof together with all fittings and fixtures therein, if any, and includes any garden, garrage out-house and open space attached or, appertinent thereto. If in a given tenancy agreement the demised premises is identified as house, in such a case even when no express purpose is mentioned in the tenancy agreement, the identification of the house as residential building would at least restrict its use to only such purpose as a residential building can be put to and would least exclude the use of residential building exclusively residential building.

Further a "residential building" can be identified in a given tenancy agreement as house, Kothi, bunglow, villa or palace. All these terms, in my opinion would be indicative of only one use being intended of the demised building, that is, residential purpose.

Hence, in any opinion, it would be utterly illogical to say that the identification of a demised building or premises in a tenancy agreement by itself is not indicative of the use to which the premises or demised building was intended to be put by the, tenant.

Accordingly, if a demised building is identified as a house in a tenancy agreement, it would be taken that the parties had used the expression 'house' in the sense in which the 'house' is understood in common parlance or as indicated by its dictionary meaning. Similar would be the situation where the expression 'office' or 'godown' is used. In such a case, the parties would be taken to have used the expression 'office' or 'godown' as understood in common parlance and the meaning given to it the same as in the dictionaries.

If the record is silent of any evidence, oral or documentary, indicating expressly or circumstantially, the use to which the premises described as a 'house' in the tenancy agreement were to be put by the tenant, then the purpose to which the demised premises can be put by virtue of its identification as 'house' in the tenancy agreement would be a purpose to which demised premises could be put if the same had been merely identified as 'residential building' again, assuming that the expression 'house' connotes as building for human habitation then if the demised premises are only identified as 'house' (and if the tenancy agreement is silent about the specific purpose for which the 'house' was to be used), then the occupant could be using it as 'a dewelling - house without attracting the provisions of sections 15(2)(iii)(b) of the said Ordinance that is he could reside therein.

The discussion is meant to emphasise that where a demised 'premises' or building is identified merely as 'house' then the same can be used only as residential house, but if the said demised building came to be used later on exclusively as office or godown, then that would tantamount to a change of user. Similarly if such a demised premises was put to use exclusively as an office and godown (for the moment assuming that the expression 'office' connotes the building or part, used for office purposes including administration, clerical work handling money, the expression "godown" connotes a 'building' that is used for the purpose of only stocking provisions therein), then that would tantamount to the change of user. The reason being that when the demised premises is used as a residential house, it is being put to constant use by the tenant which by implication ensures its proper upkeep like timely repair, timely white washing, but when premises is used as a godown, which is merely used for dumping goods therein, such an upkeeps may neither, be possible nor, by implication envisaged as such a 'godown' remains mostly close, while a house remains mostly open. The premises used as a godown are bound to deteriorate and a landlord, if had been informed at the time of entering into tenancy agreement that the tenant intended to use the demised premises described as a house, he might not have agreed to enter into the said agreement. Hence when the demised premises are used for a purpose to which having regard to its description as 'house' 'office' 'godown' etc., the landlord may not have intended, had the said different purpose, which the tenant had in mind, been made known by the tenant to him, then the landlord may not have agreed to let out the said premises for that purpose.

The word 'house' does not mean or include an office/godown for the purpose of section 15(2)(iii)(b) of the said Ordinance- and the premises, which are mentioned as a house in the tenancy agreement a cannot without the written consent of the landlord, be converted into office-cum-godown for clerical work, handling money, entering into contracts and for storing the goods being sold at the same premises or at the other premises by the tenant. The words 'house' and 'office-cum-godown' are distinct having distinct and separate meaning which are well understood in this part of the country and for that matter, in dictionaries meanings of the words 'house', 'office' and godown, are given as these are understood in Pakistan.

When the premises have been used for the purpose other than the one for which these were let out, the landlord earns a right to evict the tenant The tenancy agreement executed between the parties is a charter of their rights. If the purpose or use for which the premises is let out is set out after agreement by the parties, in the tenancy agreement, then it does not pose any problem. If on the other hand, it does not specifically state the purpose of letting, then the Controller or the Appellate Authorities are called upon to decide the matter in controversy by interpretation of the statutory definition or, in the absence of such a definition by reference to the ordinary dictionary meanings or their meanings as are commonly understood in the locality.

The terms of the tenancy agreement in the instant case were clear and explicit and did not leave any scope for the argument that the premises in question could be used as an 'office-cum-godown'.

In the case of Ch. Muhammad Anwar Sipra v. Malik Muhammad Din etc. P L D 1981 S C 491, the Honourable Supreme 'Court laid down the following dictum:-

"It would be noticed that the premises had been mentioned in the lease deed as a house. Although the lease deed is silent about the use to which the house was to be put, yet considering that it is mentioned in the Lease Deed as a house, secondly that the premises in question consist of the first and the second floor of the building, it is evident that the said premise:; were leased out on the condition that it would be used for residential purpose. Therefore, by putting it to a different use by converting a part of it into a lawyer's office, the appellant had evidently infringed the first part of clause (b) of section 13(2)(ii) which prohibits a tenant from using a building for a purpose other than for which it was leased out. Moreover, he can also be deemed to have infringed one of the conditions on which he had evidently taken the house on lease, i.e. to use it for his residence. As such he was also guilty of contravening the second portion of clause (b) of section 13(2)(ii) "

Reliance is also placed on' P L D 1981 S C 578, 1980 S C M R 590. PLD 1982 S C 75 and 1985 C L C 1886.

The appellant in his affidavit-in-evidence stated that he 'let out the premises to the respondent for residential purpose and the respondent is using the house in question for commercial purpose.

The appellant denied the suggestion that since the time premises was let out, the respondent is using the same for office-cum-godown. The appellant to a suggestion in cross-examination stated that "I had not given any notice in writing since 1974 complaining to the opponent that he is using the premises for commercial use. I had verbally asked him so it is incorrect that as I had not got converted from P. I. B. Society the premises from residential to commercial, therefore, I have cancelled commercial use since 1974". P.W.2 Muhammad Arif stated in his affidavit-in-evidence that it was let out by the appellant to the respondent only for residential purposes. This witness denied the suggestion that the premises is being used for office and godown since 1972.

As against the above evidence, the attorney of the respondent stated in his affidavit-in-evidence that "on the expiry of the stipulated period the opponent became the tenant of the applicant as month to month and was for the purpose of establishing -office-cum-godown. The attorney to a suggestion in cross examination replied that the said premises is being used for office-cum-godown since inception of the tenancy. The two defence witnesses supported the version of the attorney of the respondent.

Coming now to the instant case, the purpose to which a house can normally be put being inherently different from the normal use to which a building described as 'office-cum-godown' is put as already observed, the 'house' herein having been used exclusively as 'office- cum-godown,' the conclusion in the light of what is held above, is inevitable that the respondent had changed the user and was liable to be evicted in terms of section 15(2)(iii)(b) of the said Ordinance.

The learned counsel for the respondent has submitted that conversion before the promulgation of the said Ordinance is not within the purview of clause (iii)(b). The relevant words are 'has used the premises'. The present perfect house contemplates a complete event connected in some way with the present time.

The language of sub-clause (b) of clause (iii) of subsection (2) of section 15 of the said Ordinance leaves no doubt in my mind, that on proof the fact that the tenant has used the premises for the purpose other than that for which it was let without written consent of the landlord, the landlord is entitled to an order for eviction against the tenant.

I am of the view that the tenant has used the premises for the purpose other than that for which it was let out without written consent of the landlord either before or after the promulgation of the said Ordinance, the respondent/ tenant is not protected from eviction under section 15(2)(iii)(b) and it matters not that the tenant had a right to use the premises.

The appellant's right to obtain possession of the premises in question under section 15(2)(iii)(b) is in no way impaired by his acquiescence in the breach of the condition which would under Transfer of Property Act enable him to re-enter the leased premises or tenanted premises what is denied to the appellant by his acquiescence in the breach of the condition or by his waiver the right of re-entry and not other remedies open to him under the law. The provisions which are incorporated in section 15(2)(iii)(b) of the said Ordinance contemplate that the tenant has used the premises for purpose other than for which it was let to him. These provisions do not permit change of the purpose by acquiescence or waiver of the landlord. I am satisfied that on the facts and circumstances of this case, the evidence does not disclose that the appellant concurred with the purpose for which the respondent was allowed to use the premises.

The appellant averred in para 3 of the eviction application that the respondent, infringed conditions on which the demised premises had been let out to him. The appellant further averred in para 4 of the eviction application that the respondent committed such acts which impaired material value or utility of the demised premises.

The respondent denied all these allegations of infringement of the conditions of the-tenancy agreement and authorised additions, alterations and construction, on the demised premises. According to the respondent, the appellant himself constructed stair-cases and room on first floor. According to the respondent the appellant took advance to the tune of Rs.20,565 for carrying out additional construction within the said premises.

The Controller who tried the eviction application, held, that "by constructing additional rooms and stair case the value and utility of the premises in question is increased but not decreased."

The grounds on which a tenant can be evicted are specified in section 15 of the said Ordinance. Breach of conditions of the tenancy is one of the grounds specified in sub-clause (c) of clause (iii) of subsection (2) of section 15 of the said Ordinance. The other ground for eviction of the tenant is specified in clause (iv) of subsection (2) of section 15. of the said Ordinance that is, the respondent/ tenant has committed such acts as are likely to impair the value and utility of the premises.

It is common ground that the premises from which the respondent was sought to be evicted were in his occupation by virtue of tenancy agreement dated 18-11-1972. Term or condition No.9 provides that the respondent will not cause damage to this premises and will not change the premises and will not damage the premises. According to the appellant the respondent had actually constructed pucca stair-case and two rooms over and above the ground floor of the said house without the written consent of the appellant.

Mr. Muhammad Ali Jan contends that the terms and conditions of the tenancy agreement under which the respondent, held, are contained and confined which created the tenancy under which the respondent holds the premises in dispute and the tenancy agreement did not contain any condition prohibiting the respondent from erecting any permanent structure that is rooms on the first floor and a stair case, even if, any permanent structure had been constructed by the respondent, that would not amount to a breach of the conditions of the tenancy.

A perusal of condition No.9 shows that the respondent was prohibited from treating or damaging the demised premises and the respondent was prohibited from damaging the premises in any manner whatsoever.

The word 'permanent structure' must be distinguished from words like 'fixtures' and 'structure' and mews 'something' which is constructed in way of being built up as a 'building'. The rooms on the floor and the stair-case were not constructed for the purpose of use on the particular occasion. It seems that the respondent constructed the rooms and stair-case intending to use it as rooms and stair-case during the terms of his tenancy. Even assuming that the rooms and stair-case were such that they could be dismantled without causing damage to the demised premises, in view of the nature of construction and the intention of the entire terms of his tenancy and not merely temporarily, the aforesaid construction must be held to be a 'permanent structure'. As it was constructed without the written consent of the appellant unauthorisedly, the respondent committed breach of conditions of the tenancy and, therefore, he is liable to be evicted.

It is true, as pointed out by Mr. Muhammad Ali Jan that the Controller has not recorded a specific finding whether the rooms and stair-case were permanent structure or not and than it was his duty to record such a finding. As; however, the question that it was a permanent structure or not can be decided on the materials on record and it is manifest that the rooms on the first floor and the stair-case were permanent structure.

In the case of Ch. Muhammad Anwar Sipra v. Malik Muhammad Din etc. (P L D 1981 S C 491), the Hon'ble Supreme Court laid down the following dictum.

"Again since the Lease Deed does not contain any clause permitting the tenant to make any construction on the building without the landlord's consent, therefore, any construction made by the tenant without the permission of the landlord would evidently be against the written agreement."

After going through the deposition of the witnesses examined by the parties and also the receipts produced by the respondent, I am of the view that the appellant has proved that the respondent E constructed stair-case and two rooms on the roof of the premises let out to him. In this connection, the observations of Mr. Zakaullah Lodhi. J in the case of Chiragh Din v. Mushtaq Muhammad and another reported in P L D 1976 Kar. 23, as follows:-

"The outcome of this discussion, therefore, is that the roof of a building does not form part of the tenement and its upper portion can be used by the landlord for construction of upper storey or for any other purpose subject to the condition that it does not in any manner disrupts the peaceful enjoyment of the premises by the tenant. The contention, therefore, that the roof formed part of the tenement and it could not be separately leased out is also without force and is hereby repelled.

I am in respectful agreement with the above discussion for the reasons in that decision as such I am of the opinion that the construction of stair-case and two rooms on the roof impaired the utility of the premises and deprived the enjoyment of the same. It is expedient in the interest of justice to decide the matter on the basis of the record below. I have done so instead of remanding the case for decision of the question.

In this state of evidence, I am clearly of the view that the Controller as misread and ignored material evidence and construed the law in reaching the conclusion that the appellant had not established conversion and impairing the value and utility of the premises in question.

I, therefore, accept this appeal and allow the eviction applica tion. The respondent is directed to hand over the vacant and peaceful possession of the premises in question within four months to the appellant on the condition, that he shall continue to deposit monthly rent in accordance with the Controller's order. In case the respondent will commit any default in respect of the above condition the appellant shall be at liberty to file an execution application immediately on commission of such default.

H.B.T. A-17/K Appeal accepted.

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