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First Rent Appeal No. 464 of 1983, decided on 14th June; 1987.

---S.15(2)(ii)--Default in payment of rent--Proof--Tenant after expiry of tenancy agreement between parties, started depositing rent within period of sixty day:--Tenant, held, did not commit default in payment of rent.

---Ss. 15(2)(ii) & 21(1)--Misuse and unauthorised conversion of building--Proof--Evidence on record evidently showed that tenant unauthorisedly and without consent of landlord controller Norton of residential building into shop--Finding of Rent in Controller that no such unauthorised conversion was made was contrary to evidence on record--High Court reversed finding of Rent Controller in appeal.

Rashid Munir Ahmed for Appellant.

Dilawar Hussain for Respondent.

Date of hearing: 11th May, 1987.

This First Rent Appeal is directed against the order dt. 27-3-1983 passed by the VIIIth Senior Civil Judge/Rent Controller, Karachi, whereby he dismissed the eviction application' f led by r the appellant.

The facts leading to the filing of the above appeal are that the appellant is the landlady of Quarter No. 1487/2, Azizabad, Karachi and the respondent is the tenant in respect of the said quarter at the monthly rental of Rs. 110. The appellant filed eviction application being Rent Case No. 1309/72 against the respondent on the grounds of default, conversion of the portion of premises into a pan shop, nuisance and violation of terms and conditions of the tenancy agreement. The respondent denied all the allegations on the pleading of the parties, the learned Controller framed .the following issues:-

(1) Whether the opponent has committed default in respect of rent

(2) Whether the opponent has raised authorised and illegal construction without the permission elf the applicant if so to what effect

(3) Whether the opponent has converted a p art of building into shop and has sublet the same to another person if so its effect

(4) Whether the said pan shop become a nuisance for the neighbourers

(5) What should the order be

The appellant examined Jawaid Iqbal and Shafaat Hussain in support of the eviction application. The respondent examined himself besides Azhar Ali Khan.

The learned Controller on the basis of the evidence adduced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties, decided issues 1, 2, 3 and 4 in the negative and dismissed the eviction application vide order dt. 27- 3-1983.

The appellant being aggrieved against the order dt. 27-3-1983 of the VIIIth Sr. Civil Judge/Rent Controller, has preferred this First Rent Appeal on the grounds mentioned in the memo of appeal.

I have heard the learned counsel for the parties and have perused the impugned order. The appellant claimed rent for four months that is 1-1-72 to 30-4-72 P. W. No. 1 Jawaid Iqbal son and attorney of the appellant admitted in his cross-examination that rent for the month of Jan. 1972 was received by his father. He also produced rent receipt Ext. 7 which acknowledged rent for the month of January 1972. The rent was payable for the months of February, 1972, March and April, 15'72. The respondent started depositing rent in Misc. Rent Case No. 96S3/72. The respondent was inducted as a tenant vide tenancy agreement dated 1-3-1967. The agreement was for a period of 11 months. The rent for the month of February, 1972 was due and payable on 1-5-1972. The respondent started depositing rent since 22-4-1972. In view of this there is no default in payment of rent. The learned Controller rightly decided this issue in the negative.

On the ground of unauthorised and illegal construction without the consent and permission of the respondent and conversion of a portion of the premises into a Pan-shop, there is nothing on record to doubt her statement that the appellant had converted portion of the premises into a Pan-shop. It is an admitted position that the promises was let out for residential purposes. The contention of the learned counsel for the respondent is that the Pan-shop was demolished by KMC, the cause of grievance was removed prior to filing of the eviction application and no action; can be taken against the respondent. This contention is devoid of force. A perusal of sub-clause (b) of clause (if) of subsection (2) of section 13 of the Repealed Ordinance provided that the tenant has used the building for a purpose other than that for which it was leased out or has infringed any condition of the tenure on which the building is held by the landlady. The learned Controller has found the Pan-shop was not constructed on the premises let out to the appellant/ respondent but was constructed outside the boundary wall as such the respondent was not liable to be evicted from the premises in dispute.

P. W. No. 1 Jawaid Iqbal deposes that the appellant had constructed pan-shop in it which he rented out to some one. The respondent had constructed without permission. He admitted in his cross-examination that the pan-shop is outside the house but adjacent to it. The son attorney of the appellant admitted in his cross- examination that the wall was not broken.

A.W.2 Shafaat Hussain deposes that the respondent constructed a pacca shop just in front of the house. This witness further deposes that the respondent had put up over the courtyard of the house and had covered it.

As against the above evidence the respondent deposes that he had not made any additions and or alterations or damaged the same. He deposes that "there is one cabin of Pan-Beri-Shop outside the disputed premises which has got no concern with the house". The respondent admitted in his cross-examination that the cabin is adjoining the wall of the disputed house. He showed his ignorance as to whether, the cabin was constructed within seven feet of the disputed house .B The finding of the Controller in contrary to the evidence on record. The respondent admitted in 'his cross-examination that he had; constructed the cabin adjoining the wall of the disputed house. I reverse the finding on this issue.

I am, therefore, of the opinion that this appeal deserves to be accepted and is hereby accepted. The order of the Controller on this ground is set aside. However, looking to the difficulties in getting accommodation in Karachi, four months time is allowed to the respondent to vacate the premises on payment of rent for this period. In the circumstances of this case the parties shall bear their own costs.

H.B.T./A-180/K Appeal accepted.

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