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First Rent Appeal No.249 of 1985, decided on 16th June, 1987.

---Ss. 15(2)(iv) & 21(i)--Materially impairing of value or utility of premises--Proof--Evidence on record and report submitted by local commissioner appointed for spot inspection of premises in dispute, unrebuttedly showing that tenant by his act caused such damage to property which reduced its value or utility as alleged by landlord in his ejectment application--Finding of Rent Controller that tenant was responsible for causing damage to property which reduced its value, held, was fully justified.

---S. 15(2)(iv)--Impairing value or utility of premises--Proof--When unauthorised construction has been made by tenant which materially impaired value or utility of building, such unauthorised construction even if subsequently has been demolished by tenant or Authority concerned held would not absolve tenant from action as provision of S.15(2)(iv) did not contemplate that at time of eviction application wrong done to premises should be a continuing one.

---Ss. 15(2)(vii) & 21(1)--Personal bona fide requirement--Proof-- Landlord stated on oath that he himself was carrying on business in a rented shop--No cogent evidence on record available from which it could be inferred that landlord had ranted out any other shop on rent to new tenant before institution of eviction proceedings against tenant--Cogent evidence however was available to show that all other shops were rented out by landlord prior to letting out shop in dispute to tenant--Finding of Rent Controller on question of bona fide personal requirement of landlord was upheld in appeal as tenant failed to adduce evidence sufficient to set aside finding of Rent Controller.

Mohammad Sadiq for Appellant.

Rehmat Ellahi for Respondents.

Date of hearing: 29th April, 1987.

This appeal under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter called the Ordinance) is directed against the order dated 19-2-1986 passed by the Vth Senior Civil Judge/Rent Controller, Karachi whereby he allowed the eviction application filed by the respondent and directed the appellant to vacate the premises in question within thirty days of the order.

The facts leading to the filing of the above appeal are that the respondents are the landlord of the property on plot No. 106, Block No.5, Liaquatabad, Karachi and the appellant is tenant in respect of shop No.4 of the said property at a monthly rent of Rs.60. Hafiz Mohammad Yousuf Qureshi filed eviction application No.7034 of 1980 (New No.2167/85) against the appellant on the grounds of making unauthorised addition and alteration in the shop and thereby impairing the material value or utility of the premises and personal requirement. The appellant denied the allegation of impairing the material value or utility of the shop. The appellant also denied the allegation of personal requirement and stated that the respondents let out many shops to new tenants.

The original landlord filed his own affidavit-in-evidence besides affidavit-in-evidence of his "son Mohammad Mohsin Qureshi in support of the eviction application. In rebuttal the appellant filed his own affidavit-in-evidence. They were cross-examined by the learned counsel for the respective parties.

The Controller on the basis of the evidence adduced and the material placed before him decided both the points in the affirmative and allowed the eviction application vide order dated 19-2-1986. The instant appeal is against the above eviction order.

I have heard the learned counsel for both the parties and I have also perused the impugned order.

Hafiz Mohammad Yousuf Qureshi died on 29-8-1984. The present, respondents were brought on record. The deceased landlord averred in para 3 of the eviction application that the appellant unauthorisedly made additions and alterations in the shop in dispute, broken the walls, fixed the R . C . C . slab therein and thereby damaged the property which impairs the value or utility of the property. The said landlord further averred in the eviction application that the appellant constructed the walls by occupying the space in front of the shop and thereby not only de shaped the shop but also impaired the value and utility of the property. The appellant denied these allegations in his written statement. The appellant stated that no such acts as alleged has been done by him.

The said Hafiz Mohammad Yousuf repeated the same facts in his affidavit-in-evidence. The original respondent denied the suggestion in his cross-examination that the appellant has not damaged the premises in case.

The appellant, denied the allegations in his affidavit. The appellant stated that he did not break any wall nor fixed R.C.C. slab or impaired the value and utility of the building. The appellant denied the suggestion in cross-examination that he made the construction slabs by breaking the sides of the walls of the shop. The appellant also denied the suggestion that he has raised the slabs and due to that cabin of the building has become dangerous.

The Controller appointed Mr. Zafar Hadi Shah Advocate as Commissioner for inspection of the shop in question. The Commissioner submitted his report dated 20-3-1985. I have perused the report. I find that there were three R.C.C. slabs inside the shop. The appellant also constructed a platform which was demolished by K . M. C .

The deceased landlord stated in his affidavit-in-evidence that "while putting the R.C.C. slabs, the opponent has broken the walls Vith tha result that the building has been damaged. The load of R.C.C. slabs damage-l the property, as the foundation of the building was on the basis of the structure put by the applicant and the extra load has weakened the property".

The above evidence on the file shows that the appellant by his act caused such damage to the property which reduced its value or utility. Thus there is evidence on the record that the appellant A was responsible for causing damage to property. In this state of evidence, the Controller was fully justified to hold that the appellant was responsible for causing damage to the property which reduced its value. The findings in this behalf are affirmed.

The case as set out in the eviction application that the appellant had constructed the walls by occupying the space in front of the shop and thereby not only deshaped the shop but' also impaired the value and utility of the property. The original landlord stated in his affidavit-in-evidence that: the appellant had constructed two pillars of iron and installed tin sheets by covering the open space in front of the shop. It has come in evidence, that the K.M.C. demolished the same: The contention of the learned counsel fox the appellant is that cause of the grievance has been removed and no action can be taken against the appellant. This contention is devoid of force. The provision's of Clause (iv) of Subsection (2) of Section 15 of the Ordinance do not contemplate that at the time of eviction application the wrong should be a continuing one. I am of the opinion that if an B unauthorised construction has been made which materially impaired the value or utility of the building, then even if it has been subsequently demolished by the tenant or K.M.C., it does not absolve the tenant from an action under this clause.

On the question of personal requirement of respondent No.8, Muhammad Mohsin Qureshi and his bona fides in this behalf, there is nothing on record to doubt his statement that he is doing the business of repairing electric fans, electric wires and other electrical appliances in a rented shop. The case of the appellant is that late Mohammad Yousuf initially constructed four shops when the shop in question was rented out to him. The appellant's further case is that two more shops were constructed which were also let out to the new tenants. His further case is that late Mohammad Yousuf constructed two more shops before institution of the eviction proceedings which were also rented out to other tenants.

The appellant took the plea in his written statement that many shops have fallen vacant and rented out the same to new tenants. It is pertinent to note that Muhammad Yousuf was cross-examined at length but so such question was put to him in cross-examination. The said Yousuf admitted in his cross-examination that there were four shops in the building and no shop was let out after the shop in question was let out to the appellant.

Section 15(2)(vii) of the Ordinance is very clear, that a landlord may apply the Controller for an order directing the tenant to put the landlord in possession of the premises, if the landlord require it for his own use or for the occupation or use of his spouse or any of his children. Therefore, the primary requirement is that the landlord should not occupy any of the shops of his own. In the instant case, the respondent No.8 is admittedly carrying on business of repairing electric appliances in a rented shop. There is no cogent evidence on record from which it can be inferred that the predecessor-in-interest of the respondents rented out shop to new tenants before institution of eviction proceedings. There is cogent evidence that all the shop were rented out prior to letting out the shop to the appellant. There is nothing in the evidence produced by the appellant's side to show that it would not be a valid assumption the respondent No.8 and his late father have made a statement on oath. 1t has been believed by the learned Controller. The evidence led from the side of the appellant is not enough, to set aside the findings on this issue. The findings on the question of bona fide requirement of the respondent No.8 for personal requirement, are upheld. Consequently, this appeal or these grounds, is dismissed. There shall be no order as to costs. The appellant is allowed four months' time to vacate the premises.

H. B. T./M-328/M Appeal dismissed.

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