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First Rent Appeal No.181 of 1985, decided on 23rd December, 1986.

‑‑‑Ss. 15(2)(iv) & 21(1)‑‑Eviction of tenant‑‑Material impairment of value or utility of premises‑‑Proof‑‑Eviction ordered by Rent Controller on insufficient evidence furnished by landlord on point of impairment in the shape of his own affidavit‑‑There being no sufficient evidence on record on part of landlord to prove material impairment of value or utility of premises alleged to have been committed by tenant except mere statement of landlord on oath, request of landlord that he should be afforded opportunity to prove same, held, was just and proper‑ Appellate Court setting aside ejectment order against tenant, remanded case to Rent Controller to decide same afresh on merits after affording parties opportunity to lead evidence.

Habibur Rehman for Appellant.

Khaliq Humayun for Respondent.

Date of hearing: 23rd December, 1986.

This First Rent Appeal is directed against the order dated 24‑2‑1985 passed by the XIV Senior Civil Judge/Rent Controller, Karachi whereby he allowed the eviction application and directed the appellant to hand over the vacant and peaceful possession to the respondent within thirty days from the date of the order.

That facts leading to the filing of the above appeal are that the respondent is the owner and landlady of building known as Nazar Manzil standing on Plot No. N.P.3/23, Kamil Gall No.1, Mithadar, Karachi, and the appellant is the tenant in respect of Shop No.8, ground floor of the said building at the monthly rental of Rs.85. The respondent filed eviction application Rent Case No.1106/82 on the ground that the appellant has committed such acts as are likely to impair the material value or utility of the premises. The appellant resisted the eviction application. The respondent filed his own affidavit‑in‑evidence in support of the eviction application and the appellant filed his affidavit‑in‑evidence besides affidavit‑in‑evidence of Abdul Sattar, Muhammad Saeed and Muhammad Siddique. They were cross‑examined by the learned counsel for the respective parties. The learned Controller allowed the eviction application. The appellant tenant has challenged the order by filing this First Rent Appeal.

Mr. Habibur Rehman the learned counsel for the appellant has contended that the order is illegal for misconstruction and misapplication of law to the facts of the case inasmuch as any addition or alteration by itself is not sufficient to entail penalty of eviction.

On the other hand Mr. Khaliq Humayun the learned counsel for the respondent has submitted that the respondent has established that the appellant has committed such acts as are likely to impair the value or utility of the premises.

I have carefully considered the above submission made by the learned counsel for the parties and have gone through the order of the learned Controller in this connection. The respondent averred in her eviction application that the appellant had damaged the premises and in support of such averment she examined herself and in rebuttal the appellant examined himself besides three witnesses. It seems that no effort was made to examine the architect or structural engineer. Mr. Khalid Humayun submits that the respondent had already moved an application to that effect. On the other hand Mr. Habibur Rehman states that the application was already dismissed. On this Mr. Khaliq Humayun has submitted that he moved another application which is still pending. His submission is that the appellant had damaged the property and the damage stood proved by the respondent. On the other hand the learned counsel for the appellant has contended that the damage was not proved. It seems that there is no sufficient evidence on the record and when the learned counsel for the respondent is confronted with this situation, he suggested that the respondent be afforded an opportunity to prove this. This being the position both the learned counsel have submitted a statement stating therein that the case be remanded to the Controller. I think that the request is just and proper in the circumstances of the case. The appeal is allowed accordingly.

For the aforesaid reasons the appeal is allowed and the impugned order is set aside. I remand the case to the 1st Senior Civil Judge/Rent Controller (South), Karachi for decision on merits. The parties are allowed to lead evidence as to the architectural damage, if any, or any other evidence which the parties may wish to lead before the learned Controller. The parties are directed to appear before the 1st Senior Civil Judge/Rent Controller (South), Karachi on 22‑1‑1987. No notice will be issued to the parties. The learned Controller is directed to dispose of the rent case in accordance with law after affording opportunity to both the parties.

The office is directed to' remit the R s P and the copy of the order forthwith.

H.B.T./M‑117/K Order accordingly.

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