1. ' The respondent filed an application for ejectment against the appellant who is a tenant in respect of first floor of Building No, II on Plot No, 59 Britto Road, Karachi. It was alleged that the monthly rent was fixed at Rs,80 by the Rent Controller on 15-7-1955, with effect from 1953 exclusive of local taxes.
2. The husband of the respondent was the original tenant who was a habitual defaulter in payment of rent and an ejectment application filed earlier in 1960 was compromised on 14-1-1966. It was alleged that the appellant was not paid rent for the last 10 years from 12-5-1976, when the ejectment application was filed. The other ground was that the respondent has a large family of which 4 children are of marriageable age, and, therefore, the premises is required in good faith for her own occupation and occupation of her other family members, The third ground was that the appellant on coming to know that the respondent requires the premises for her personal need made life of the family members of the appellant and her guests miserable and it became difficult for the applicant to live on ground floor of the premises first floor of which is in occupation of the opponent. It was alleged that the appellant has been guilty of such acts and conduct which are nuisance to the neighbors also. The appellant denied the allegations and maintained that she had no knowledge of any order passed by the Controller on 15-7-1955 fixing the fair rent. It was pleaded that the appellant is paying rent @ Rs,90 p.m., inclusive of all taxes. It was denied that her husband was habitual defaulter, but the compromise is admitted and pleaded that the entire accounts were settled for which a receipt was issued by the appellant on 25-2-1967. It is also pleaded that that after this receipt was issued the respondent permanently resided at Lahore and her address was not known nor any one came to collect the rent. After getting hold of the Lahore address rent was remitted through money orders which were refused. The appellant therefore, started depositing rent in Miscellaneous Rent Application No, 8/70 and continued to do so till the order for deposit of rent was passed in the ejectment case. It was further stated that she has been paying the entire taxes although she was not liable to do so and reserved the right to deduct adjust or recover the said amount of taxes from the respondent. The bona fide requirement of the respondent was denied and it was stated that her children are permanently residing at Lahore. It was pleaded that the respondent has been obtaining possession of various premises in the building and renting out from time to time. She is occupying premises sufficient to meet her requirement and the claim for bona fide personal requirement is frivolous. The allegations regarding harassm ent and nuisance were also denied. The learned Controller framed the following issues:--
(1) Whether the opponent has committed default in payment of rent?
(2) Whether the applicant bona finely requires the premises in case in good faith for personal use?
(3) What is the rate of rent?
(4) Whether the opponent is liable to pay the taxes?
(5) Whether the opponent is a source of nuisance?
(6) What should the order be?
3. ' The learned Controller held that the rate of rent is Rs,90 p.m. Exclusive of taxes which are to be paid by the appellant share wise, as fixed by the Authorities from time to time, and that the appellant has committed default. The finding on issues Nos. 2 and 5 was also given in the affirmative.
4. ' The foremost question for determination is what is the rate of rent. The learned Controller has held it to be Rs,90 p.m. Exclusive of taxes. Mr. Farooq Naik the learned counsel for the appellant has assailed the finding of the learned Controller and has mainly relied on document Exh. D/1 which is a receipt, dated 25-2-1967 and reads as follows:-- RECEIPT.
5. ' Received a sum of Rs,3,465 (Rupees three thousand four hundred sixty-five only) from Mst. Hashmi Begum widow of Mr. Syed Husan Javeri as arrears of rent from 1-10-1961 to 28-2-1967 at the rate of Rs,90 p.m. Mst. Hashmi Begum has deducted a sum of Rs,2,385 (Rupees two thousand three hundred eighty-five) as the amount of taxes and repairs charges paid by her. This settles the rent account up to 28-2-1967.
6. Dated 25-2-1967. For Mst. Alya 2ohra.
7. ' On the other hand Mr. Raja Haq Nawaz the learned counsel for the appellant has contended that in Case No, 1934/53 by order, dated 15-7-1955 the rent for the premises in possession of the respondent's husband was fixed by the Controller at Rs,80 p.m. Exclusive of taxes. Mr. Naik the learned counsel for the respondent contended that the respondent's husband was not a party to the proceeding, but no document to that effect has been produced and therefore it is not possible to entertain this objection. From the order it is clear that S. Hassan i.e, the late husband of the appellant was tenant at that time in respect of the first floor of bungalow No,
2. While fixing the rent at Rs,80 p.m. It was observed as follows:-- 'This is done from 15-8-1953 the date of filing of application for fixation of fair rent and is exclusive of the increase in K.M.C. Taxes in respect of two old bungalows and is exclusive of the portion of taxes to be paid by the tenants so far as newly-constructed bungalow is concerned which will be added and charged over and above the rent fixed.'
8. ' From tha order it seems that on the said plot there are three bungalows. Bungalows Nos. 1 and 2 are old bungalows and bungalow No, 3 is the newly-constructed bungalow. It is, therefore, clear that the appellant was liable to pay Rs,80 p.m. And his share of taxes. However, as is the admitted position the respondent filed an ejectment case which was compromised and on 25-2-1967, the appellant paid rent which was accepted by the respondent and accounts upto 28-2-1967 were settled. According to this receipt the rent from 1-10-1967 to 28-2-1967 was charged at the rate of Rs,90 p.m. And the appellant was ,given adjustment towards the taxes paid by the appellant, and the costs of the repairs incurred by her. There is no evidence to show what was the amount of taxes paid by the appellant. However, from the wordings of the receipt it can be inferred that the amount of taxes paid by the appellant was deducted from the rent. The parties, therefore, agreed that the rent will be at the rate of Rs,90 p.m. Inclusive of taxes. The learned Controller has completely overlooked this aspect of the case by ignoring the receipt Exh. D/1. The respondent's attorney has filed her affidavit of evidence, but he had no personal knowledge of these facts, therefore, he is not in a position to state anything about the settlement between the parties. The attorney was appointed on 20-12-1977 and has admitted that he had never sent any intimation to the respondent regarding payment of taxes. Even if for argument sake it is accepted that the rent was Rs,90 p.m. Exclusive of taxes, the appellant could not have paid the taxes unless her share of the taxes, which were demanded by the assessing authority under a challan in a consolidated form, was notified to her. In the absence of any such information being given to the appellant for non- payment of taxes she cannot be termed a defaulter.
9. ' Now coming to the question of default in payment of rent the respondent has made a general statement that the rent is due for the last 10 years, No specific date for non-payment of rent has been given. Ten years have to be calculated from the date of application viz. 12-5-1976. The appellant on the other hand has denied it and stated that after the settlement the respondent went away to Lahore where she is residing permanently and her address was not available to her.
10. She searched for the address and sent a money order on 18-9-1969 (Exh. D/3). By this money order she had remitted Rs,373 and by money order of the same date a sum of Rs,1,000 was remitted. She had calculated the rent from 1-3-1967 to 30-11-1969 at the rate of Rs,90 p.m. For 31 months amounting to Rs,2,790. Out of this amount she had deducted K.M.C. Taxes at Rs,1,317.80, and property taxes at Rs,99.16. Therefore, according to her calculation Rs,1,373 were the rent due up to 30th September, 1969. These money orders were refused and were not accepted. Thereafter, the appellant filed an application for deposit of rent in Rent Case No, 8/70 at the rate of Rs,90 p.m. The learned Controller granted the application after notice was issued to the respondent. This order was passed on 10-1-1970 and since then the appellant is depositing rent in Court regularly. She continued to deposit the rent till such time the Controller passed an order for deposit of rent in the ejectment case, which has been complied with. On the basis of these facts the learned counsel for the appellant has pleaded that when the ejectment application was filed the appellant was not in arrears, The learned counsel has contended that the respondent is entitled to file ejectment application only in respect of rent which is due and as rent beyond period of three years cannot be termed as 'rent due', the appellant cannot file ejectment application in respect of default committed three years prior to the filing of the ejectment application i.e, 2-5-1973. According to the learned counsel as the rent is being deposited in Court from the year 1970, which is a proper tender, there is no default in the preceding three years, The learned counsel has relied on Muhammad Ahmad v. MRs, Qamar Anwar Sheikh 1980 CLC 664 where it was observed as follows:-- 'It was next urged by the learned counsel for the appellant that on the date of the application for ejectment on 8-3-1968 the respondent was entitled to claim arrears of rent only for a period of 3 years prior to the date of the application, for, it is well-established that the word 'due' refers to the rent due in law and recoverable in an action at law vide PLD 1968 SC 230. It was, therefore, contended that the ejectment cannot be sought on the basis of arrears of rent for a period falling beyond the limit of three years from the date of institution of proceedings. There can be no quarrel with the proposition of law submitted but it not material for the present purposes.'
11. ' Mr. Raja Haq Nawaz the haired counsel for the respondent has contended that once the tenant has defaulted in payment of rent subsequent payment cannot condone the default, and the landlord is entitled to file ejectment application in respect of the default committed by the tenant in the past irrespective of the fact whether it falls within a period of three years or beyond a period of three years, The learned counsel has referred to the Supreme Court judgment relied upon in the afore-stated case, and contended that it relates to section 13(6) of the Sind Urban Rent Restriction Ordinance and therefore, the observation will not apply to section 13(2) of the same Ordinance.
12. According to the learned counsel words 'rent due' in ejectment proceeding, on ground of default should be construed differently from the same words used in proceeding taken for deposit of rent under section 13(6). In Ashfaq-ur-Rehman v. Mohammad Afzal PLD 1968 SC 230 the Supreme Court was considering the question "whether the words 'all the rent due' in subsection (6) of section 13 of the Ordinance No, VI of 1959, include rent, though unpaid cannot be recovered, in view of the statute of limitation through a civil Court." It was held that the provision of section 13(6) of the Ordinance could not be employed to deprive the tenant of a legal defence under the general law. It was observed as follows:-- 'Another aspect of the proposition is that in an action for eviction or fixation of fair rent if brought before the Rent Controller a party shall not be deprived of a legal defence which would be available to him in a Court of general jurisdiction. In the case of Bira v. Hildage (2 AELR 7) the Court of Appeal construed the words; 'rent lawfully due' in the Rent and Mortgage Instruments Restrictions (Amendment) Act, 1938, as rent which can be recovered by process at law. Dealing further with the effect of tender after the due date where time is not made the essence of a contract their Lordships observed that where a debtor has a defence in law to a claim for money whether it be a rent or otherwise it seemed impossible to say that the money claimed is lawfully due from debtor to the creditor or the tenant to the landlord. Though the word 'lawfully' is not added to 'all the rent due' in section 13(6) yet the effect remains the same. When rent is sought to be recovered by a legal process be it before a Court or a tribunal the word 'due' would carry the connotation of 'due in law' or recoverable in an action at law.'
13. ' Finally it was observed that the Controller acting under section 13(6) of the Ordinance cannot direct the tenant to deposit rent in respect of which legal remedy has become barred under the statute of limitation. From these weighty observations of the Supreme Court, it is clear that the words 'all rent due' mean such rent which is recoverable under law. In section 13(2)(a)(i) it is provided that if the Controller is satisfied that the tenant has not paid or tendered 'rent due' by him then he can eject the tenant. It is a well-recognised principle of interpretation that if the same words find place in a statute then unless it is not possible same meaning should be assigned to them and not differently. Therefore, the expression 'rent due' should mean the rent which has remained unpaid and is legally recoverable under the law. It is well-settled that a landlord cannot recover the rent beyond a period of three years, ' Mr. Raja Haq Nawaz the learned counsel for the respondent referred to Article 110 of Limitation Act which provides a period of limitation of three years for recovery of rent and Article 139 which provides limitation of a period of 12 years for filing ejectment case against a tenant and contended that the landlord can file an ejectment case in respect of non-payment of rent for a period of past 12 years, There can be no two opinion that Article 110 of the Limitation Act provides a limitation of three years for recovery of arrears of rent, from the date when the rent becomes due. Article 139 provides limitation of 12 years for an action by a landlord to recover possession from a tenant from the date when tenancy is determined. Therefore, the cause of action in both the cases are different.
14. In one case it starts from the date when the rent becomes due and under Article 139 when tenancy is determined. In the present case the tenancy has not been determined. The ejectment case has not been filed on the basis of determination of tenancy but on grounds of default, nuisance and personal bona fide use and occupation. Therefore, reference to Article 139 for the purpose of interpreting the words 'rent due' cannot be of any assistance. In view of this discussion I am of the view that the landlord cannot file application for ejectment in respect of rent which is not legally due and recoverable from the tenant.
15. ' In the present case the period during which rent was not paid can be divided in four parts (1) from 1-3-1967 to 30-9-1969, (2) from 1-10-1969 to January, 1970 (3) February, 1970 to April, 1973 and (4)
16. May, 1973 to April, 1976. The rent for the first period was remitted by money order which was refused.
17. Then in February, 1970 the appellant deposited the rent from 1-3-1967 till January, 1970 after deducting the taxes for the first period and continued to deposit in Court. So when the ejectment application was filed the rent for the third and fourth period had been deposited in Court. Now the non-payment of rent up to the third period i.e, April, 1973 cannot be made basis for ejectment application. For the fourth period i.e, May, 1973 to April, 1976 the appellant has regularly deposited the rent @ Rs,90 p.m. Such deposit is a legal tender. Even if the appellant was liable to pay taxes and has not paid the same she cannot be blamed for that. The respondent never intimated the appellant about her share of taxes, therefore, she cannot be held to be a defaulter because she has not paid the taxes. In these circumstances the appellant is not a willful defaulter.
18. ' The next ground for ejectment is personal bona fide requirement of the respondent. According to t;)e learned counsel for the respondent there are three buildings on this: plot. The building No, 1 consists of the ground and first floor. The ground floor is occupied by A.Q. Raja, who is the attorney of the respondent, the first floor is occupied by the respondent. In Building No, 2 the ground floor is vacant and in possession of the respondent and the first floor is occupied by the appellant. In building No, 3 on the ground floor there are 2 garages which are occupied by A.Q. Raja the attorney and another small room is occupied by a servant. The first and second floors of the premises are subject-matter of litigation in which ejectment has been ordered and I am told by the learned counsel for the respondent that even leave to appeal filed by the tenants has been dismissed by the Supreme Court. Therefore, in the normal course the first and second floors of Building No, 3 will also be available to the landlord. This proves the accommodation available to the respondent in the said buildings. The respondent in her ejectment application has pleaded that the premises is required for her personal use and for her children. From the evidence it is clear that the respondent and her family is residing at Lahore or Bahawalpur. None of them are permanently residing at Karachi, although sufficient accommodation is available here. It has not been proved which of the family members want to shift to Karachi and reside here. Nor has it been explained that the accommodation available to respondent is not sufficient to satisfy her requirements. At the time when the evidence was recorded the respondent's sons were studying at Lahore. Mr. Raja Hag Nawaz the learned counsel contended that the sons would come and start their business at Karachi. No particulars or details of business proposed to be carried out has been given. It seems to be a mere desire and not a real, genuine or bona fide need. The respondent had examined her son who was partly cross-examined, but before its conclusion he went abroad and could not be fully cross-examined. In view of these facts the learned counsel for the appellant has stranuously argued that his evidence may be excluded from consideration. I have gone through the statement of this witness and find that he has sufficiently been cross-examined and if his evidence is taken into consideration, it can hardly prove the personal bona fide requirement of the respondent. It was contended that the respondent has 22 children. From evidence it is clear that she has 10 children and 12 are step-children. Be that as it may, the fact remains that respondent has failed to prove her bona fide requirement. In the fate of the evidence my finding is that the respondent has failed to establish that she bona fide and in good faith requires the premises in dispute for her occupation and for use of her family members, ' The last ground for granting ejectment is that the appellant has caused nuisance to the neighbors, The averment has been made in para. 7 of the application which reads as follows:-- 'That the opponent on coming to know of requirements and personal need of the house by the applicant, made lives of family members of the applicant and guests etc. Miserable by different means and thus it became difficult for the applicant to live on grounds floor, of the premises in occupation of the opponent. In fact this tenant has been guilty of such acts and conduct as are a nuisance to the neighbourers also.'
19. This has been denied in the written statement. At the outset it may be noted that no particulars of nuisance have been given. It is a simple statement without stating any supporting fact. From the averments in paragraph 7 one fact is clear that at the time when the ejectment application was filed the respondent was occupying the ground floor of the disputed premises. This fact has been admitted by the respondent's counsel during the argument. According to the averments made in the application, the appellant was harassing the respondent and her guests. In this regard the only evidence produced is of A.Q. Raja who is the attorney of the respondent and also her tenant. The facts stated in the affidavit of evidence of the attorney are that the appellant had allowed unauthorized some young boys to remain on the top of the house who used the rain pipe for latrine, bathing, washing purposes and making the rubbish to flow in the compound. It is also alleged that one of the occupants of the ground floor namely Raja Haq Nawaz Advocate was so much harassed that he served a notice dated 8-3-1975 on the applicant. The other facts stated are that the appellant her son and daughter-in-law continued their frivolous and harassing tactics by sending legal notice dated 8-3-1980 and threw blood-soaked sanitary napkins in the courtyard of his house and on protest police report was made by the appellant and his servant was involved in a case under section 107/117 and pressures were brought to withdraw the ejectment case filed against the appellant. These are the facts which have been stated to show that the appellant is a nuisance to other residents of the building and the neighbors, The allegations made by the respondent can conveniently be divided in two periods, one before filing the application in 1976 and the other after the filing of the ejectment case. So far the incidents relating to the period after the filing of the ejectment case are concerned they cannot be taken noto of as they did not exist when the ejectment application was filed, and therefore, such grounds cannot be made a plea for seeking ejectment. These incidents include the throwing of blood soaked sanitary napkins in the courtyard and the complaint before the police authorities. The facts that rubbish was being thrown from top floor and rain pipe was used as latrine find place in Exh.P/36 a notice served by the respondent on 8-3-1980. It does not speak of allowing some young boys using it in that manner. In fact the entire allegation is against the family members of the appellant. This incident is also alleged to fall after the filing of ejectment' case.
20. ' In respect of the incidents prior to the filing of the ejectment application, the respondents have only produced a notice of 8th March, 1975 addressed by Mr. Raja Haq Nawaz, Advocate, who at that time was residing on the ground floor of the premises. In this notice Mr. Nawaz has complained personally on his own behalf, but certain incriminating facts relating to the relationship of the respondent and the appellant have been stated. However, the main complaint was that the appellant used to hung filthy pieces of cloth used for cleaning gutter and floor in a window and water from that cloth trickled over the wash basin on the ground floor as well as on persons using it. Secondly two gutter pipes coming from upstairs were used uncontrolled and there was flow of filthy water from them which had caused the ground floor filthy. It is also stated that water is thrown mischievously in the courtyard to annoy his family members and the water flows from rain pipe as the roof is used as a 'Dhobi Ghat' and a bath room by the appellant's servant. It is also stated that the flower pots are watered carelessly or may be intentionally from which water trickles on the ground floor. Water connection to basin in the dining room is found cut or obstructed.
21. ' Mr. Naik the learned counsel for the appellant has contended that mere production of notice is not sufficient to establish the facts stated therein. This notice was addressed to Fazal Hussain son of the appellant and not to the appellant herself. This notice was replied in which it was stated that there is some misunderstanding between Mr. Raja Haq Nawaz and Fazal Hussain and it can be removed by a personal meeting. Thereafrter, till the filing of the ejectment case there does not seem to be any complaint against the appellant, otherwise repeated notices would have been sent to her or to her son. The contention of Mr. Naik has force, as mere production of notice is no proof of fact stated in it. The proper course was that the person who has suffered, should have been examined to prove these facts. The word 'nuisance' has not been defined, but it means, acts or omissions which cause common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the neighbourhood. In order to establish nuisance it is necessary to show that the tenant is guilty of such acts of omission or commission which have caused danger or annoyance or discomfort to the neighbours or residents of the building.
22. Occasional or sporadic incidents which may be annoying cannot cause nuisance unless same or similar incidents causing annoyance, danger or inconvenience are reported. In the present case firstly the facts stated in the notice have not been fully proved, and secondly there is nothing on record to show that even after notice, dated 18-3-1975 the appellant continued the alleged acts of nuisance which caused annoyance and danger to Mr. Raja. There is nothing on record to show whether Mr. Raja vacated due to the alleged nuisance nor the date of vacating has been mentioned. The admitted fact is that the respondent is occupying the ground floor which was previously occupied by Mr. Raja, and she does not seem to have made any grievance or complaint to the appellant nor served any notice till the filing of the ejectment case that the appellant is causing nuisance which has caused danger to her. The only incidents alleged by her attorney happened during the year 1980 which cannot he made a ground for ejectment in respect of a case filed in the year 1976. For these reasons the respondent has failed to establish that the appellant has caused any nuisance.
23. ' The order of the learned Controller is set aside and the appeal is allowed.