This First Rent Appeal under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter called the Ordinance) is directed against the Order .Dated 12-1-1980, passed by XIII Civil Judge & V Rent Controller, Karachi, whereby he dismissed the application of the appellant for eviction of the respondent.
2. The facts giving rise to this appeal briefly stated, are : The appellant is the owner of a double- storeyed house situated on plot of land bearing No. 12-16-H/I1I, Nazimabad, Karachi. The ground floor of the house has been let out by the appellant to the respondent at a rent of Rs.190 per month while the upper floor of the house is occupied by the appellant.
3. On 22-5-1975, the appellant filed an application under section 13 of the Sind Urban Rent Restriction Ordinance, 1959 (hereinafter. Called `the 1959 Ordinance') on the ground of default in payment of the rent, conversion of the premises from residential to commercial, damage to the property, and nuisance.
4. The respondent in the written statement denied all the 4 grounds.
5. On the pleadings of the parties the following 4 issues were settled by the Controller.
"(1) Whether the opponent has committed default' in payment of rent as alleged in the application ?
(2) Whether the opponent has converted the use of the premises as alleged in the application ?
(3) Whether the opponent has committed such acts by which he has damaged the property?
(4) Whether the opponent has committed or is committing acts which are nuisance for the applicant ?
6. In support of her case the appellant examined herself and one witness Husna Begum (Exh. 9). No oral or documentary evidence was produced by the respondent. She however, annexed to the written statement a Photostat copy of the letter dated 24-1-1972 from the KESC which was addressed of the respondent.
7. The Controller decided all the four issues against the appellant and consequently, dismissed the application by the order now impugned in the appeal before me.
8. I have heard Mr. Inamul Haq, learned counsel for the appellant and Mr. Mahmood Ahmad, learned counsel for the respondent and have also gone through the evidence on record. The learned counsel fort the parties have filed a typed written copy of the deposition of the appellant and her witness Mst. Husna Begum for the evidence on record is in the handwriting of the Controller and is not legible at places.
9. Mr. Haq has questioned the finding of the Controller only on two issues namely, issue No. 1 and issue No. 4. He has in categorical terms stated that he is not questioning the findings on other two issues.
10. So far as the default in payment of the rent is concerned the claim made in the application was that the respondent had not paid the rent from 1-II-1974 to 30-4-1975. The explanation of the respondent was that she was depositing the rent in Court in Application No. 525 of 1975 after the refusal of the appellant to accept the rent by money order. According to the counsel for the respondent the rent for the month of November was sent by money order which was accepted, which is clear from the postal money order receipt (Exh. 9). It is in these circumstances that the appellant in her deposition has stated that the respondent has not paid the rent from 1st December, 1974. However, it is submitted by Mr. Haq that according to the agreement between the parties dated 1-11-1968 (Exh. 2) the rent was payable in the first week of every succeeding month.
Therefore, in accord--ance with the provisions of section 13 (2) of the 1959 Ordinance the rent for the month of December should have been paid or sent by money order or deposited in the Court within 15 days i. e. By 22-1-1975. However, the rent was deposited as agreed by both the counsel on 9-2-1975. Thus, it is argued that there was a clear default in payment of rent for one month.
However, it was submitted by Mr. Mahmood Ahm.-d that the agreement dated 1-11-1968 (Exh. 2) was only for a period of I1 months and after its expiry the tenant became the statutory tenant, accordingly, the rent deposited in the Court on 9-2-1975 for the month of December, 1974 was well within time. In support of his submission the learned counsel relied upon Amir Ali v. Mrs. Alima Ahmad (PLD 1981 Kar. 150) wherein my learned brother Ajmal ;Mian, J. At page 153 of the report observed as follows "In support of the above contention Mr. Muhammad Ali Sayeed has referred to the case of Alifdin v.
Khadim Hussain (1980 SCMR 767) in which Anwarul Haq, C. J., and Nasim Hasan Shah, J. Held that a tenant continuing in occupation of property after termination of the tenancy, remains subject to the terms of the lease deed/agreement, and approved a D. B. Lahore case, namely, Muhammad Ashraf v. Muhammad Sharif and 3 others (PLD 1971 Lab. 610) in which the same view found favour with a Division Bench comprising of the present Chief Justice of Pakistan and Mr. Justice Sardar Muhammad Iqbal. The above rulings support the contention of Mr. Muhammad Ali Sayeed.
However, a large Bench of the Supreme Court has recently taken a contrary view in the case of Muhammad Yousuf v. Abdullah (PLD 1980 SC 298) in Civil Appeal No. K-90/78 (decided on 30-8- 1980), wherein the majority view comprising of Dorab Patel, Muhammad Haleem and Abdul Kadir Shaikh, JJ. Was that upon the expiry of the period of lease/tenancy agreement the tenant becomes a statutory tenant under the Rent Restriction Ordinance and that the terms and condi--tions of the lease/tenancy agreement cease to apply. Whereas, Nasim Hasan Shah, J. Concurred with the conclusion arrived at on merits, but dissented from the majority view on the question of correctness of the aforesaid Lahore case of 1971 and held that the same was correctly decided. In other words Mr. Justice Nasim Hasan Shah adhered to the view taken in the aforesaid earlier Supreme Court case, namely Alifdin v. Khadim Hussain. Since the case of Muhammad Yousuf v.
Abdullah has been decided subsequently by a larger Bench. I am bound to follow the latter case. In fact I had followed the aforesaid judgment of the Supreme Court recently in First Rent Appeal No. 23 of 1980, decided by me on 8-11-1980. In this view of the matter the contention of the learned counsel for the respondent that the appellant was obliged to pay monthly rent in advance by 5th of each month because of clause (4) of the expired agreement dated I-9-1968 Exh. 6 is untenable."
11. I have no special reason to take a view different from the one taken by my learned brother Ajmal Mian, J. However,. I may point out that in Muhammad Yousuf v. Abdullah the case of Alif Din v.
Khadim Hussain which was decided only about 4 weeks earlier and wherein different view was taken, was not brought to the notice of the learned Judges of the Supreme Court. Although the case of Muhammad Ashraf v. Muhammad Sharif and 3 others has been referred to, which was also referred to in Alif Din's case. However, in view of the latest pronouncement by the Supreme Court I have to hold that there was no default on the part of the respondent payment of the rent.
12. Now, taking up the second ground I may mention that the appellant has specified the following five acts in the application constituting nuisance: "(a) That ever since the opponent has again married a Police Inspector in about the year 1972, she is indulging in acts, of law lesseness by abusing, ill-treating and using violence against the applicant taking advantage of the facts that the applicant has unfortunately also lost her four children after the death of her husband who was a Section Officer in the Central Government of Pakistan and the applicant is now residing in the first floor of the said house with her only surviving daughter who is a student of Home Economics College, Karachi and as a result of the said acts of lawlessness on the part of the opponent, the applicant is suffering from Tacheardia and she become breathless very often ;
(b) That the opponent has intentionally caused damage to the premises in dispute, and keeps the water supply to the applicant's premises on the first floor stopped by keeping the water-tap on the ground floor constantly open resulting in complete stoppage of the supply of water to the first floor of the house.
(c) That the opponent also intentionally tampers with the flow of electricity, due to which the electric supply to the first floor was cut of and the applicant had to run for restoration of the electric connection at a huge cost and inconvenient ;
(d) That the opponent also made attempt to get the electric meter changed in her name but without success as the applicant somehow came to know in time about the said attempt made by the opponent ;
(e) That finding the applicant helpless and surrounded by calamities of life, the opponent in collusion with her husband is also threatening to deprive the applicant of our property somehow."
13. So far as the facts mentioned in paragraph (a) are concerned the appellant has deposed that the attitude of the respondent was not good towards her. Her friend and friends of her son used to throw rubbish at her instance and that the respondent, her son and one Siraj had also beaten her.
There--fore she had lodged a report with the Police, a certified copy whereof was produced marked as Exh.
3. It is further deposed that the respondent also tried to get the electric meter changed in her name. She also deposed that the respondent used to receive her postal letters and therefore she had to get her letters on different addresses. She produced 4 envelopes marked Exhs.
4 to 8. Three of them i. e. Exhs. 5 to 8 show that they are addressed to the appellant not at her own address but care of others on their addresses.
14. So far as her statement regarding throwing rubbish through friend, servant and friends of the son of the respondent, and threats that the daughter of the appellants would be abducted and.
Taking her postal letters and she is getting her mail at different addresses are concerned the same have gone unchallenged for no questions were directed towards this part of deposition in cross- examination nor was any evidence produced in rebuttal.
15. So far the allegation of beating the appellant is concerned it is submitted that the report was lodged by the appellant against one Siraj. Police Constable and not against the respondent.
However, it is admitted fact that Siraj is the name of the husband of the respondent and he is in Police Department and the report (Exh. 3) lodged with the Police shows that the dispute had arisen on disconnection of the. Water supply. Therefore, Siraj mentioned in the report could be no other person than the husband of the respondent. Accordingly the statement of the appellant is corrobo--rated by the report. It is submitted by Mr. Haq that the respondent used to' disconnect the water connection by keeping the water tap on the ground floor open but there ii no sufficient evidence to that effect except the uncorroborated statement of Mst. Husna Begum that the respondent used to stop the water supply of the appellant. In fact the appellant in her deposition has made a grievance that the respondent had got the water connection disconnected and not that she used to stop water supply by putting the water-tap open. Thus this allegation is not proved and the evidence on this point is vague for it is not stated when the water connection was disconnected and how long it remained disconnected and how the respondent was responsible for the same.
16. With regard to grounds --c' and 'd' the only statement made was that the respondent tried to get the electric meter changed in her name. Even if I accept this statement that by its. If will not in my opinion, constitute any nuisance. However, with regard to ground (a) it is submitted by Mr. Mahmood Ahmad that even if the evidence of the appellant is believed on the point of beating, threats of kidnapping her daughter, throwing rubbish, receiving letters addressed to the appellant, that would not constitute nuisance within the meaning of section 13 (2) (Iv) of the Ordinance. It is further submitted by Mr. Mahmood Ahmad that the `nuisance' and not `private nuisance' and then nuisance should be to the occupants of the buildings in the neighbourhood and not to the landlord. In support of his submission he relied upon section 208 of the Pakistan Penal Code which reads as follows "A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstructions, danger or annoyance to persons who may have occasion to use any public right."
"A common nuisance is not excused on the ground that it causes some convenience of advantage."
He also relied upon Inayatullah v. Majeed (1969 P Cr. L J 300), Allah Dad v. A. Karim (1972 P Cr. L J 680) and Durrani v. Muhammad Tan etc. (PLD 1979 Quetta 17).
17. Now, I would consider the meaning of the term `nuisance'. The word `nuisance' is neither defined by the Ordinance nor by the General Clauses Act, either Central or Provincial, though no doubt `public nuisance' has been defined in section 3 (47) of the Central General Clauses Act, 1897 and in section 2(52) of the Provincial General Clauses Act, 1956 as follows "Public nuisance' shall mean, a public nuisance as defined in the Pakistan Penal Code."
18. Since in the Ordinance the term used is `nuisance' and not the phrase 'public nuisance' which has been given special meaning in section 268 of the Pakistan Penal Code, therefore, reference to the same will not be relevant as I have to refer to its ordinary dictionary meaning and it is judicially defined. In the Oxford English Dictionary, Vol. VII, 1961 Ed. Pages 253 and 254 its meanings are stated as follows : "(1) Injury, hurt; harm, annoyance (in later use only as implying sense 2(a) and 2(b).
(2) Anything injurious or obnoxious to the community, or to the indivi--dual as a member of it (esp.
As an owner or occupier of property), for which some legal remedy may be found.
(b) In more general use ; Anything obnoxious or annoying to the community or individual by offensiveness of smell or appearance by causing obstruction or damage, etc.
(d) A highly obnoxious or troublesome practice, instruction, state of things, etc.
(e) A source of annoyance something personally unpleasant or disagree--able."
That which annoys and disturbs one in possession of his property, rendering the ordinary use or occupation physically uncomfortable to him. Yaffe v. City of Smith, 178 Ark. 406, 10 S W 2nd 886, 890, 61 A L R 1138. Everything that endangers life or health, gives offence to senses, violates the laws of decency, or obstructs reasonable and comfortable use of property."
According to Winfield, Tort (5th ed.), p. 442, `nuisance' is the unlawful interference with a person's use or enjoyment of land, or of some right over, or in connection with it", which has been cited with approval in Read v. Lyons & Co. Ltd. ((1945) K B 216) affirmed by the House of Lords in (1947) A C 156)
Howard v. Walker ((1947) 2 All. E R 197), Newcastle under Lyne Corporation v. Wolstantion Ltd. ((1947)
Ch. 92).
I may here also refer to Tod Heady v. Benham ((1889) 40 C D 80) cited by Mr. Inamul Haq wherein it was observed by Bowen, L J at page 97 of the report as follows "Whether the term is employed in the covenant in the exact sense of the term at Common Law or not, is a matter that may be doubted, but I will assume as matter of argument only, that `nuisance' in this covenant means only a nuisance at Common Law ; that is in the language of Vice- Chancellor Knight-Bruce in Walter v. Sego, (4 De G & Sm. 322) "an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people". Any material interference with the ordinary comfort of existence ; that would be a nuisance. The law, in thus defining `nuisance' has stopped short, I will not say of protecting the fancies of people, because the mere fadcies of people I do not think can in any view be an element in the definition, but has stopped short, according to what is said in Alfred's case (2 Rep. 58 b.) of giving an action in respect of that which is a matter only of delight, and not of necessity."
19. It is difficult to define this term but from the above-quoted meanings it will be seen that any act or conduct which cause injury, damage, hurt, inconvenience, annoyance, or discomfort to another in the enjoyment of his respective right of person or property, may constitute 'nuisance'. Something unpleasant or disagreeable would also be covered. But what may constitute d `nuisance' in a particular case will depend upon many things, such as the type of neighbourhood, the nature of thing or wrong complained of, its proximity to those alleging injury or damage, its frequency of continuity, and the nature and extent of the resulting injury, damage, or annoyance resulting. (See : The Americas case namely. Lehmkuhi v. Junction City (56 A L R 2d 1409). It may also be useful to quote here Pollock C. S. From Bamford v. Turnley (31 L J 0 B 292).
"I do not think that the `nuisance' for which an action will lie is capable of any legal definition, which will be applicable to all actions and useful in deciding them. The question so entirely depends on the surrounding circumstances. The place where the time, when the alleged nuisance, what the mode of committing it, how---and the duration of it, whether temporary or permanent occasional or continual-as to make it impossible to lay down any rule of law applicable to every case, and which will be also useful in assisting a jury to come to a satisfactory conclusion. It must at all times be a question of fact with reference to all the circumstances of the case. Most certainly, in my judgment, it cannot be laid down as legal proposition or doctrine that anything, which, under any circumstances, lessens the comfort or endangers the health or safety of a neighbour must necessarily be an actionable nuisance. That may be a nuisance in Grosvenor Square which would be none in Smithfield Market. That may be a nuisance at midnight. That may be a nuisance which is permanent and continual, which would be no nuisance if temporary or occasional only. A clock striking the hour, or a bell ringing for some domestic purpose, may be a nuisance if unreasonable loud and discordant, of which the jury alone must judge, but although not unreasonably, loud if the owner, from some whim or caprice, made the clock strike the hour every ten minutes, or the bell ring continually. I think that a jury would be justified in considering it to be a very great nuisance. In general a kitchen chimney, suitable to the establishment to which it belonged could not be deemed a nuisance; but if built it an inconvenient place or manner on purpose -to annoy the neighbours, it might very properly be treated as one. The compromises that belong to social life, and upon which the peace and comfort of it mainly depend, will furnish an indefinite number of examples in which sonic apparent natural right is invaded, or some enjoyment abridged, to provide for the more General Convenience or necessities of the whole community."
It, therefore, follows that each case trust, or necessarily, depends upon parti--cular facts and circumstances.
I may also here refer to D. B. Godse and another v. K. S. Ramchandra Iyer (AIR 1955 Mys. 107) cited by Mr. Inamul Haq.
20. If the facts which have been proved are examined in the light of the above meanings and observations then it would be clear that. They constitute nuisance for the appellant on account of these facts cannot live in her own house in peace, and in my opinion, who can live when be besides being beaten, receives threats from the tenant who resides in the premises down below, and who without authority takes the mail of the landlord and does not deliver to it to her.
I may also here refer to Mst. Sunder v. Lalta Prasad (AIR 1956 All. 211) which too wa! Cited by Mr. Inamul Haq. In this case the question' was whether the acts of ill-treating, abusing and beating the landlord who happens to be an old lady and who is residing in a part of the house constitute a nuisance or not Answering this question Sapru, J. At page 211 of the report observed: "I think the words "creating a nuisance" are capable of a wider inter--pretation. They include, on the part of the tenant in my opinion, acts and behaviours which make it extremely inconvenient for the landlord or any other tenant occupying a portion of the house to live in it in a peaceful manner.
A person who abuses his position as a tenant .By resorting to acts violence against his landlord who is occupying a portion of the house creates, in my opinion, "a nuisance such as would entitle the landlord to go to a Court of law and seek his ejectment without the permission of the District Magistrate under* S. 3 of the Act.
To put any other interpretation upon the words "creating a nuisance" would be to put a premium on gross misbehaviour on the part of a tenant occupying a house in a portion of which his landlord also happen to be staying.".
This case I may say, is very close to the case under consideration.
21. Now, remains the arguments advanced by Mr. Mahmood Ahmad, to be dealt with. So far as the term `nuisance' used in the Ordinance as concerned I have already said it does not mean the `public nuisance' .I Therefore, any reference to the phrase `public nuisance' defined in section 26&' of the Pakistan Penal Code is irrelevant and cannot be used for the purpose of section 13 (2) (iv) of the Ordinance. Here I may refer to passage from the Principles of Rent Control by R. B. Andharujina' page 294.
"The word `nuisance' is neither defined by the Rent Act, nor by the General Clauses Act, either Central or Bombay. The General Clauses Act no doubt defines "public nuisance", but the nuisance contemplated by the present Act is not "public nuisance", but nuisance only. The definition of the word has almost eluded the grasp of judges and jurists alike. In Walter v. Selfe [(1851) 4 De Gex and Smaile's Reports. 315 at p. 322]. Sir Lancelot Knight Bruce, V. C. Has attempted a definition which may be found workable in majority of cases. The Vice-Chanceller puts it thus . . . . . . " both on principle and authority the important point next for decision may properly . . . . . Be thus put. Ought this inconvenience to be considered in fact more than fanciful, more than one of delicacy or fastidiousness as an inconvenience materially interfering with the ordinary comfort physically or human existence, not merely according to elegant or dainty modes and habits or living but according to plain and - 'sober and simple notions among the English People."
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 proper to read the word `public' in the provisions for that would limit its scope for which there is no indication whatsoever in 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 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 ins 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 fad as the provisions of clause (iv) are concerned, but if the landlord) resides m the neighbourhood or stay in the same building wherein or where about the nuisance is created by the tenant that in my opinion, would be hit by the provisions of clause (iv).
24. It is lastly, submitted by Mr. Mahmood Ahmad that the application made by the appellant for eviction ,of the tenant was mala fide inasmuch as she had served a notice in the year 1972 that she required the premises for her own use but she did not file the application on that ground and she has in her deposition stated that the respondent has sublet the premises though no such ground has been mentioned in the application.
25. Now, the question of mala fide in my opinion, is not at all relevant to the provisions of section 13
(2) (iv) and it might have been relevant, if the landlord had required the premises on the ground of personal use and occupation. As regards the deposition relating to subletting the premises the same is of no consequence for she has not sought eviction of the respondent on that ground and if this statement cannot be taken into consideration for the purpose of ordering eviction on that ground, the same also becomes irrelevant so far as the question of nuisance is concerned.
26. It is further submitted by Mr. Mahmood Ahmad that the report lodged with the Police and four letters were not mentioned in the application. For an application under the provisions of the Rent Ordinance, it is nor at all necessary to state the evidence which is to be produced, in support of grounds on which eviction is sought under section 13 of the Ordinance. In my opinion, mention of the grounds with relevant facts would sufficient.
27. In the result I allow the appeal and set aside the order of the Controller and direct the respondent to vacate the premises and put the appellant into physical and peaceful possession of the premises.
28. Since the respondent is a Doctor and is running a clinic in the premises it would be appropriate if I allow her six months time to vacate the premises and hand over its vacant possession to the appellant.