QUDRAT ALI Versus MAQBOOL FATIMA

The facts which constitute the background .of this appeal filed under section 21 of the Sind Rented Premises Ordinance, 1979, are that the appellant is the landlord of the building' situated on plot No. 3 of 714, Liaquatabed, Karachi. The ground, floor consists of residential portion and three small shops bearing Nos. 1,2 and 3, on the front side. Hakim Abdul Majid Khan, since dead, was the tenant of shop No. 2, at a monthly rent of Rs. 100, under the terms of agreement dated 10‑3‑1980, valid for eleven months. On 1‑3‑1981, the appellant filed an application for ejectment against said Hakim Abdul Majid Khan under section 15 of the Sind Rented Premises Ordinance, 1979, on the following grounds:‑‑

(a) That the said Hakim Abdul Majid Khan was using the shop premises as a store in which bottles and tins are kept and where the grinding of medicines was also being made by the thrust of hammer which has damaged the entire floor, thereby impairing the value and utility of the building.

(b) That on account of such hammering the peace and tranquillity of the appellant and his family members living in the residential portion is being disturbed.

(c) That the premises is required for the personal and bona fide need for himself and his sons, since the appellant was at the verge of retirement.

(d) That the tenancy has ceased to be valid as the agreement had expired at the time of the filing of application for ejectment.

2. Hakim Abdul Majid Khan, since dead, had controverted the allegations based on facts in his written statement. According to him, the "lease agreement" was obtained by force under the pressure of police, and a suit being No.499 of 1981, for its cancellation was pending decision.

3. The appellant examined himself (P.W.2) and his son Syed Ghayoor Akhtar (P.W.1). The said Hakim Abdul Majid Khan filed his affidavit‑in‑evidence. He, however, died before he could be cross examined. The respondents were then brought on record. They examined one of them, namely, Muhammad lqbal (D.W.1.).

4. On the pleadings of the parties the learned Rent Controller framed the following issues:‑

(1) Whether opponent has damaged the demised premises?

(2) Whether opponent has committed nuisance for applicant?

(3) Whether applicant requires the demised premises for bona fide use of his sons?

5. On the assessment of the evidence adduced by the parties the learned Rent Controller decided all the issues against the appellant and consequently dismissed the application for ejectment vide order dated 2‑8‑1986. This order is the subject matter of this appeal.

6. I have heard the learned counsel for the parties and have also perused the record carefully.

7. Clause (iv) of subsection (2) of section 15 of the Sind Rented Premises Ordinance, 1979, empowers the Rent Controller to direct the ejectment of a tenant, if he is satisfied that the tenant has committed such acts as are likely to impair the material value or utility of the premises. The word 'impair' connotes the idea of making worse, less valuable or weaker; of lessening injuriously; of damaging. In order to establish the acts likely to impair the value or utility of a building much more convincing evidence was required than the one A produced by the appellant. Even the technical evidence to show that the floor of the shop was damaged due to the acts of respondents is lacking in this case. No exception, therefore, can be taken to the finding of learned Rent Controller on issue No.l.

8. Clause (v) of subsection (2) of section 15 of the Sind Rented Premises Ordinance, 1979, relates to ejectment on the ground of nuisance in the following words:‑ "the tenant has indulged in such activities as are causing nuisance to the neighbours."

9. The word 'nuisance' has not been defined in Sind Rented Premises Ordinance, 1979. "Nuisances" are divided into public and private, although it is quite possible for the same conduct to amount to both. A public nuisance is a crime while a private nuisance is only a tort. As observed in Mst. Firdous Begum v. Dr. Shams‑un‑Nisa, reported in 1982 C L C 332, the term nuisance used in the Ordinance does not mean public nuisance. The observations made in the above authority at pages 340 and 341 are again relevant:‑

"22. It is further submitted by Mr.Mahmood Ahmad that in section 13(2) the words used are such that 'nuisance' should be to the occupants of the buildings in the neighbourhood.

He, therefore, argued that Legislature intended to use these words for 'public nuisance' and not 'private nuisance'. But I am of the view that it would not be proper to read the word 'public' in the provisions for that would limit its scope for which there is no indication whatsoever it the provisions.

Further, under the provisions of the General Clauses Act, word in the singular includes the plural and vice versa. Therefore, 'nuisance' to an occupant of a building would also come within the mischief of clause (iv) of section 13(2) of the Ordinance.

23. Then it is argued that the nuisance as mentioned hereinbefore should be to the occupants of the buildings in the neighbourhood but not to the landlord, but in the instant case the landlord is residing in the premises on the upper floor of the building, on the ground floor whereof respondent is residing, therefore, she would be an occupant in the neighbourhood, so far as the occupant of ground floor is concerned. In this connection the learned counsel referred to the commentary by Qazi Muhammad Ashraf who in his book entitled "The Urban Rent Restriction Ordinance, 1959, 1978 ‑Ed." has observed that the nuisance to the landlord is not sufficient to the provisions of clause (iv) of subsection (2) of section 13 of the Ordinance. According to the author the nuisance to occupier of the building in the neighbourhood should be proved. In support the learned author has relied on 1964 P.L.R. 601 but has not given the facts of the case and the report is not readily available. In my opinion if the landlord resides elsewhere and not in the neighbourhood then nuisance to him may not be relevant so far as the provisions of clause (iv) are concerned, but if the landlord resides in the neighbourhood or stays in the same building wherein or whereabout the nuisance is created by the tenant that in my opinion, would be hit by the provisions of clause (iv)."

10. It is not possible to give any precise and universal formula of what activities constitute a nuisance. Nuisance to neighbouring occupiers may arise from the vibration of hammers. The degree of inconvenience or discomfort by the continuous vibration of hammers may be productive of torture, specially to an old person, who is a retired official. In this context the following statement of appellant made on oath cannot be brushed aside lightly:‑

"3. That the opponent is running a Dawakhana with the name of Sabri Dawakhana at shop No.2/741 Liaquatabad, Karachi‑19, while my shop No.2 on plot No.3/714 is situated just opposite to his Dawakhana. The opponent is using the said shop as a store for keeping bottles, empty tins and grinding of medicines are also being made in the same shop, by the thrust of hammer by which the floor of my shop has been damaged. On the first floor of the said building my family is residing and by the thrust of hammering, peace and tranquillity is being continuously disturbed."

11. The respondents have not challenged this evidence in cross examination. There is no iota of evidence in rebuttal about the nuisance. Even a passing reference about this assertion has not been made. In this view of the matter, the observation of learned Rent Controller that other neighbours should have been examined was D uncalled for. The law does not require any number of witnesses to prove a particular fact. Simply because the evidence is of one witness only, that cannot by itself be a ground for not acting upon a testimony.

In my view the unchallenged testimony of the appellant, who is residing on the first floor of same building, and is thus a neighbour, was sufficient to decide issue No.2, in his favour.

12. Clause (vii) of subsection (2) of section 15 of the Sind Rented Premises Ordinance, 1979, empowers the Rent Controller to order the eviction of tenant, if the landlord requires the premises in good faith for his own occupation or use or for the occupation or use of his spouse or any of his children. Admittedly there are three small shops on the front side of the ground floor. The appellant requires the disputed shop for the use of his sons for doing some business. He has examined himself (P.W.2.) and his son Syed Ghayoor Akhtar (P.W.1), who have testified that the disputed shop is required by them for their own use. The appellant, who was at the verge of retirement at the time of filing application for ejectment, has in fact retired during the pendency of these proceedings. His need to occupy this shop due to this changed situation, therefore, cannot be overlooked. The appellant had filed application for ejectment against all his tenants under section 14 of the Sind Rented Premises Ordinance, 1979. During the pendency of those cases he got possession of one shop and on that score his application for ejectment filed under section 14 against the respondents came to be dismissed. The learned Rent Controller relying upon the case of Mirza Mehmood Beg v. Muhammad Arif, reported in P L D 1981 Karachi 67, came to the conclusion that the appellant cannot be allowed to proceed with the pending case, and consequently he dismissed the application for ejectment. He, however, lost sight of the fact that the reported case related to proceedings under section 13(3) of the Sind Urban Rent Restriction Ordinance, 1959 (since repealed), which prescribed pre‑conditions for seeking ejectment of a tenant on the ground of personal requirement. The learned Rent Controller should not have read the provisions of section 13(3)(a)(1) of the Sind Urban Rent Restriction Ordinance, 1959, in clause (vii) of subsection (2) of section 15 of the Sind Rented Premises Ordinance, 1959, which simply lays down that a landlord has only to establish that he requires the premises in good faith.

13. It may be noted that the respondents and their predecessor‑in -interest are tenants of this shop since 1965. They had occupied this shop about 23 years back and during this long period the family members of the appellant have grown up. The desire of the appellant to adjust them in business appears to be natural. The requirement of the appellant in this context appears to be in good faith and he cannot be denied to occupy his own shop simply because his son was still a student. One should not start with any presumption against the landlord and discard his evidence simply because the rates of rent have now gone high and the landlord would be interested only to get higher rent after getting the premises vacated. The finding of learned Rent Controller on issue No.3 is, therefore, reversed.

14. Lastly it was half‑heartedly suggested on behalf of the appellant that the learned Rent Controller erred in not framing and deciding the issue to the effect that tenancy agreement dated 10‑3‑1980 had ceased to be valid beyond 31‑1‑1981, as this ground was available at the time of filing of application for ejectment.. It is needless to point out that this ground was available only in respect of new tenancy and had no application in respect of tenancy which was created in the year 1965.

15.. In view of my finding on issues Nos.2 and 3, the appeal is allowed with no costs. The respondents are directed to vacate the demised premises within two months.

H.B.T./Q‑23/ K. Appeal allowed.