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First Rent Appeal No. 818 of 1983, decided on 16th July, 1986.

‑‑‑S. 15 (2)(ii)(b)‑‑Conversion of residential premises into commercial one‑‑Burden of proof‑‑Conversion. of residential premises into commercial one having been denied by tenant, burden of proof, thereof, held, would fairly and squarely rest on landlord which could be discharged only by adducing cogent and sufficient evidence in that respect.

Talmiz Burney for Appellant.

Nizam Ali Khan for Respondent.

Date of hearing: 18th May, 1986.

This appeal arises from the order passed by the learned XI Vth Rent Controller Karachi, dated 4‑9‑1983, dismissing the ejectment application filed by the appellant against the respondent.

The appeal was dismissed by a short order, dated 18‑5‑1986, the reasons for which were to be recorded later.

Briefly stated, the facts of the case are that the applicant filed an application before the learned Rent Controller seeking ejectment of the respondent, inter alia alleging that the respondent had used the demised premises comprising of Houses Nos. 1, 2, 41 and 43 for the purpose other than that for which the same had been rented to the respondent, as the same were being use for commercial purposes and for running a "Dhobighat". Admittedly the premises in question had been rented to the respondent by their previous owner from whom the appellant purchased the property in question. However, no evidence was laid as to the date of purchase of the said premises by the appellant.

The respondent filed written statement wherein the allegations made by the appellant had been denied. According to the respondent, the premises in question were rented out to the respondent for residential cum‑commercial purpose by its previous landlord and the opponent had been having a shop in the said premises from the very inception of the tenancy. As regards "Dhobighat", the contention of the respondent was that the same was being run is premises bearing No.40 which had been rented out to one Muhammad Din, brother of the respondent.

The appellant examined four witnesses including himself in support of his case while the respondent examined his brother Muhammad Din besides himself. The witnesses examined by the appellant were his neighbours and they have supported him by stating that the respondent had converted the premises from residential to commercial as he had converted part of the premises into a shop. However, the app#llant and his witnesses did not know about the terms of agreement which was orally entered into between the original landlord of the premises and the respondent. The respondent on the other hand was supported by his witness Muhammad Din who stated that the respondent was using the premises in question for residential as well as commercial purposes from the beginning. As regards "Dhobighat", witness stated that the same was being run by him in the premises bearing No.40 which had been rented out to him by the previous landlord. It was further stated by the witness that the premises were originally being used for business of "Dhobi", by the respondent but the same were later converted into a "Parchoon" shop to which the appellant raised objection.

According to section 15(2)(iii) of the Sind Rented Premises Ordinance, 1979, if the tenant has, without the written consent of the landlord, used the premises for the purposes other than that for which it was let out, then he would be making himself liable for ejectment by the landlord. The question, therefore, is as to what was the purpose for which the premises were rented out to the respondent. According to the appellant the premises were rented out for residential purposes only but according to the respondent the same were rented out for dual purpose, that is, residential as well as commercial. The appellant has led evidence to the effect that the conversion of the premises into commercial premises was of recent origin but the case of the respondent is that according to the terms agreed to by the original landlord the premises were let out for dual purpose. It has also come in evidence that the respondent was using the premises for commercial purposes sine long. As regards the use of part of the premises as "Dhobighat", the respondent has denied that the premises rented out to him were being used asIt Dhobighat" as according to him it was the premises rented out to his brother Muhammad Din which were being used as a n Dhobighat".

After keeping the above evidence in juxtaposition, one finds it had to conclude that the respondent has actually converted the premises from residential to commercial. As to the terms of agreement arrived at between the respondent and the original landlord, the assertion of the respondent in this respect is that it had been agreed between himself and the original landlord that the premises would be used for residential‑cum‑commercial purposes. Admittedly, the appellant is not aware of the terms of agreement entered into between the respondent and the original landlord. Then there is also admission made by the despondent that the "Dhobighat" was being run since about six years prior to the filing of the ejectment application. As regards the conversion of the part of tile premises into a shop without consent of the landlord, there is only oral evidence of the paties and what is alleged by one party has been denied by the other. Since the burden of proof fairly and squarely rests on the appellant to bring his case within the purview Of section 15(2)(iii) of the Sind Rented Premises Ordinance, the evidence accused by the appellant is not sufficient to discharge such burden.

Under these circumstances I have no other option but to uphold the decision of the learned Rent Controller. For such reasons this appeal was dismissed on 18‑5‑1986.

4.B.T. Appeal dismissed.

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