' The dispute in this second appeal under the West Pakistan Urban Rent Restriction Ordinance (hereinafter called the said Ordinance) relates to a property on plot No,3, West Wharf, Karachi. The property comprises a building and some open land in front of it. The respondent is the lessee of the land from the Karachi Port Trust and the appellant is in turn the respondent's lessee, and it is also material to observe that the respondent has leased to the appellant a godown at Rs,675 per month and some open space in front of the godown at Rs,50 per month. Further, it is admitted before me that there is more open space in front of the building and from time to time the respondent leases the other open space also to the appellant. The appellant is however a carrier and its eviction was based largely on the ground that it was committing nuisance, the respondent filed an eviction case against it in the Court of the 7th Civil Judge and Rent Controller, Karachi. As the eviction application was allowed by the Rent Controller by his order dated 1-11-1968, the appellant filed an appeal in the District Court which was dismissed by an Additional District Judge on 22nd February, 1971, therefore, it filed a second appeal in this Court which has now come up for hearing before me.
2. I have said that the respondent's eviction application was based largely on the ground that the appellant had committed nuisance, and although the appellant's eviction has been ordered on this ground, a brief reference to the pleadings will be helpful. The respondent has stated in its eviction application that it was the lessee of land from the Karachi Port Trust under a lease deed which it filed with its eviction application. It has further pleaded that with the permission of the Karachi Port Trust it had leased a godown to the appellant under written lease deed which had also been filed with its application. It has been pleaded that in 1962-63 it had received complaints from the Karachi Port Trust that the appellant was parking its loading trucks on the main road and obstructing traffic "to the plot of Liptons Limited", therefore it had informed the appellant of these complaints and thereafter the appellant "stopped the complained violations". Then, according to paragraph 10 of the eviction application, a couple of years later, it received another complaint from the Karachi Port Trust dated the 26th May, 1965 that the appellant had again started parking its trucks on the road thereby creating traffic congestion and nuisance to the occupants of the locality, therefore by this letter the Karachi Port Trust informed it (the respondent) that it has cancelled the permission granted by it to the respondent to sublet premises to the appellant. The respondent has then pleaded that the appellant's conduct amounted to nuisance and therefore sought its eviction. The appellant contested the eviction case filed against it and it denied all the allegations of nuisance against it. But I may point out here that with reference to the respondent's reliance on the terms of its own lease with the Karachi Port Trust the appellant stated that it was not aware of the terms and conditions of this lease.
' On these pleadings the two relevant issues framed by the Court were:--
(1) Whether the opponents have violated the terms of sub-tenancy, if so, its effect?
( 2) Whether the K .P . T . Has cancelled the right of the applicants to grant sub-tenancy, and if cancelled to what effect?
' Both the parties produced evidence in support of their respective contentions on these two issues and both the Courts below have decided both the issues against the appellant and ordered its eviction. However, I have to state with very great regret that the First Appellate Court had heard arguments in the appeal on 3rd March, 1970 and delivered its judgment on 22nd February, 1971. Obviously therefore the First Appellate Court had delayed pronouncing judgment for a period which was extremely unreasonable and this was one of the grounds pressed by Mr. Munawwar Abbass in support of the appeal. I agree with the learned counsel that the gross and unreasonable delay by the First Appellate Court does not inspire confidence in its finding and with this observation I will now examine the evidence on the question of nuisance.
4. Although the first issue, which I have quoted, refers to the terms of the lease between the appellant and the respondent, the evidence produced by the respondent relates only to the question of nuisance. Mr. Dastagir, learned counsel for the respondent, has also argued the issue only with reference to the question of nuisance. And I may point out here that in its lease (Exh.8) the appellant has expressly covenanted not to use the demised premises in a manner which would constitute nuisance. But the question is what is nuisance? Noise, smells, pollution of air or water are the most usual instances of nuisance, and th forms which nuisance may take are protean, as observed by Lord Wright. But in all cases nuisance arises only when the defendant does somethin which amounts to unwarranted interference with the rights of his neighbours. As observed by Winfield at pages 395 of his Law of Tort, 7th Edition: "The whole law on the subject (of nuisance) really represents a balancing of conflicting interests. Some noise, some smell, som vibration every one must endure in any modern town otherwise modern life there would be impossible." Further, nuisance is always relativ and what may be nuisance in one country will not be nuisance in another. Similarly, I have no doubt that what is nuisance in Civi Lines, of Clifton would not be nuisance in Kharadar or Saddar. As observed by Lord Wright in Sedleigh-Denfield v. O'Callaghan 1940 A C 880 at 903: "A balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with. It is impossible to give any precise or universal formula, but it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society. The forms which nuisance may take are protean."
' As nuisance is relative, the considerations which seem to me decisive in the present case are that the demised premises consist of a warehouse with an open space in front of it and that the demise was to a carrier with the consent of the Karachi Port Trust. It is also significant that according to the evidence there are warehouses in the ' vicinity. Now, as the appellant is a carrier, it is obvious that its object in taking the demised premises on lease from the respondent was to store goods in them and to remove them as and when required by its business as a carrier. Such business cannot be carried on anywhere in the world without causing some noise and some disturbance t neighbours, and further, the noise and disturbance that may constitute nuisance by a carrier in England may not amount to nuisance when committed by a carrier in Karachi, therefore, the real question in the appeal is whether -the appellant has violated the rule of give and take and of live and let live which constitute the real foundation of the law of nuisance.
5. I will now examine the judgments of the Courts below in the light of this principle, and at the out- set I have to observe that, although they held that the appellant had committed negligence, they did not even attempt to lay down any standard or criteria by which the appellant has thus been condemned. However, the parties had given evidence in support of their respective contentions and both the Courts below have accepted the evidence of the respondents and held that the appellant was guilty of nuisance because it used to allow its employees to sleep at night "in the open space which blocks the road and creates nuisance for the neighbours" (vide the second last Paragraph of the trial Court's judgment) and because it used to park and operate its trucks in a manner which constituted nuisance. I will first examine the evidence in support of these findings.
6. In order to appreciate the evidence I would repeat here that the appellant is the lessee of a godown, but the godown does not abut on the pavement because there is an open space between the godown and the pavement, and the appellant pays a substantial rent for the lease of 300 square feet of that open space. Further, as the respondent is in possession of more open space, it is also admitted that from time to time it has allowed the appellant to hire that open space. Finally, beyond the pavement is the road. Taking first the allegation that nuisance had been caused by the cots used by the appellant's employees, although the respondent examined himself and three witnesses, two of these witnesses Abdul Karim and Shahabuddin have not even alleged in their evidence that the appellant's employees used to place cots either in the open space or on the pavement or on the road, yet the respondent stated in his evidence: "They also spread cots on the road and by this act the passage of the people is blocked." It is difficult to imagine a person however stupid lying down on a cot on a busy road, therefore it is not surprising that the respondent was compelled to admit in his cross-examination as follows: -- "I have also seen cots lying in the front of the premises leased on the space given on rent with the godown."
' Before I turn to the question whether this evidence makes out any case for nuisance, I would point out that according to Mr. Dastagir it was supported by the evidence of Mr. Wasiul Hassan, a Supervisor of the Karachi Port Trust. Mr.Wasiul Hassan has not said .a word in his evidence about the cots, but he produced a report signed by a Mr.Burney (Exh.20). The report can have evidentiary value only if Mr.Wasiul Hassan was Mr.Burney, and of this, unfortunately, there seems to be no evidence. The report (Exh.20) is signed by W.H. Burney, therefore, Mr. Dastagir invited me to hold that Mr. Wasiul Hassan was the author of the report. I cannot accept this argument because it would mean the substitution of evidence by conjecture. Additionally, on examining this report, I find that it is dated 30th August, 1962. It stated that the appellant's employees were parking their loading trucks "at the western berm of West Wharf Road" and that the appellants' chowkidars, etc." put their cots in the same vicinity which create a bad look. So necessary action may please be taken to stop the said unauthorized use of our land by Messrs. Crescent Carriers." Despite this report, neither of the two witnesses of the K.P.T. Examined by the respondent have said anything in their evidence about the use of the K.P.T. Property for the placing of cots. In these circumstances, no reliance can be placed on this so-called report. In any case, the allegation about cots has been denied both by the appellant and by his witness Jalil Ahmed who was a neighbour. As the burden of proving its case was on the respondent, I have no doubt that the respondent has failed to prove its allegations about the cots and the Courts below have taken a contrary view by ignoring the fact that the burden of proof of this allegation was on the respondent. However, even if it is assumed for the sake of argument that the respondent has proved this allegation, can it conceivably amount to nuisance? As I have observed, nuisance is relative and what is a nuisance in Clifton would not be nuisance in Kharadar. But the demised premises are not even in a residential area, therefore, whilst I agree with Mr. Burney, whoever he be, that the placing of cots outside a building 'creates a bad look' I have no doubt that this does not amount to nuisance o West Wharf Road in the absence of evidence and as I shall presently show there is none, to prove that there had been interference with traffic, and it is unfortunate that the Courts below ignored this aspect of the case. However, in condemning the appellant for nuisance, the have treated the view of the Karachi Port Trust (vide the report Exh.20) and the Karachi Port Trust's letters (Exh.9/1 to 9/3 an Exh.15) as sacrosanct. But as I have explained the report (Exh.20) is of no value because its author was not examined and by itself fails to prove nuisance. As to the letters, I may explain here that they contain complaints by the Karachi Port Trust about the appellant, but the authors of the letters were not examined and as their contents merely reflect the opinions of the authors, these letters are not of an evidentiary value. Unfortunately, in relying upon them the Courts below overlooked the provisions of section 45 of the Evidence Act. Be that as it may, although the K.P.T. Has written four letters of complaints about the appellant, only one of these letters (Exh.9/3) which is date 19-9-1962 contains any complaint about cots. The letter is not fit to be relied upon not only because its author was not examined but also because, at the highest, it alleges an isolated incident which cannot possibly constitute nuisance.
7. However, Mr. Dastagir placed reliance on these letters, because, according to learned counsel, the K.P.T. Was the head lessor and as the K.P.T. Was entitled under its lease with the respondent (Exh.6) to terminate the lease in favour of the respondent, the view of the K.P.T. Was rightly accepted by the Courts below. The argument obviously had reference to the respondent's lease deed (Exh.6) which stated that the respondent "Shall not do or permit anything to be done in the said premises which may be in any way a nuisance or dangerous or inconvenient to the Board or to the tenants of another property in the neighbourhood as to which fact the Chief Engineer and Estate Officer shall be the sole and final judge " As the complaint about the cots had been made in the letter of the Estate Officer (Exh.9/3) Mr.Dastagir though somehow that unless the appellant was ejected, the K.P.T. Would terminate the respondent's lease. But both the respondent and the appellant are tenants under the said Ordinance and neither the respondent can eject the appellant nor can the K.P.T. Eject the respondent except under section 13 of the said Ordinance, therefore the opinion of the K.P.T's. Chief Engineer and Estate Officer is of no direct relevance to his appeal. In the circumstances discussed, I hold, firstly, that the respondent has failed to prove its allegation about the cots, and secondly, even if that allegation has been proved, it does not amount to nuisance.
8. The Courts below have however also accepted the respondent's allegations that the appellant used to park its trucks in a manner which blocked traffic, and then keep the engines running in a manner which disturbed the locality. Mr. Dastagir also stressed in his arguments that nuisance had been caused by the use of cranes by the appellant for its loading and unloading work and I would first consider this allegation. It is referred to by the Chief Engineer in his letter of 15-8-1963 (Exh.9/2) to the respondent. But as the Chief Engineer was not examined, this letter is of no evidentiary value.
Secondly, neither of the witnesses of the Karachi Port Trust Abdul Karim and Wasiul Hassan, who were examined by the respondent have referred to any nuisance caused by the use of cranes, therefore, this casts grave doubt on the allegation in the letter (Exh.9/2) and when I invited Mr. Dastagir to show me how this allegation had been proved, learned counsel could only refer me to the evidence of Mr. Shahabuddin. This witness has emphatically said in his evidence that the appellant used heavy cranes for its loading and unloading work which caused nuisance. But Mr. Dastagir admitted that cranes were being used by carriers for such purposes and he was further compelled to admit that the cranes used by the appellant had been hired from the K.P.T. Yet no evidence was given to show that, comparatively, the cranes used by the appellant were heavier or more noisy than those normally used by carriers in the business of loading and unloading at their warehouses. Therefore, as the demised premises had been leased to the appellant as a carrier and as the law of nuisance is simply the rule of live and let live, eve if I accept Mr. Shahabuddin's evidence, I do not think it is sufficient to prove nuisance because there is no evidence to show that the nois created by the cranes was either unusual for the business of carriers or unusual by the standards applicable to West Wharf Roads. On th other hand, as against the solitary testimony of Shahbuddin is th evidence of the appellant and of Jalil Ahmed, and as I shall presentl show, the Courts below erred in preferring the evidence of Shahabuddin, therefore, I hold that the respondent has failed to prove its allegatio that the use of cranes by the appellant amounted to nuisance.
9. Finally, as I have observed, the respondent has alleged that the appellant had many trucks which it used to park in a manner which caused traffic congestion, and further, it used to keep the engines of the truck running and carried out repairs on the road, therefore this constituted ,nuisance and this allegation has been accepted by both the Courts. The evidence in support of the allegation is that of the respondent, of Mr. Wasiul Hassan and of Mr. Shahabuddin. On the other hand, the appellant and his witness Jalil Ahmed pave emphatically denied these allegations, therefore the question is whether in preferring the respondent's evidence the Courts below have committed an error of law.
10. Although the respondent's partner Gulzar Ahmed emphatically asserted in his evidence that the appellant caused nuisance by the manner in which it parked its trucks. Gulzar Ahmed was compelled to admit in corss-examination "We have no personal complaint against the opponent."
According to Mr. Munawar Abbas, this admission meant that to Gulzar Ahmed's knowledge the appellant had not caused any disturbance in the locality. On the other hand, Mr. Dastagir thought that what the witness meant to say was that his allegations about the appellant were not based on personal knowledge. Even if I accept Mr. Dastagir's interpretation, it follows that Gulzar Ahmed had deliberately sought to misguide the Court because he had tried in his evidence-inchief to pass off as a witness who had personal knowledge of matters of which he had only learnt from others.
Secondly, in his view of the matter his evidence becomes pure heresay and it is unfortunate that the Courts below have relied on it. However, Mr. Dastagir stated that the respondent's case was supported by the evidence of Mr. Shahabuddin and of Mr. Wasiul Hassan, the supervisor of the K.P.T.
And by the letters of the K,P.T. Exh.9/1, 2/2, 9/3 and 15. The evidence of Mr. Shahabuddin no doubt fully supports the respondent's case. He has not only stated that the appellant's trucks were parked in a manner which constituted nuisance but that it used to leave the engines of its trucks running so as to create further nuisance. The allegation that truck engines were thus kept running seems difficult to believe and it is not surprising that Mr. Wasiul Hassan has not supported this allegation.
He has merely said in his evidence, "In 1962 I have observed that opponent used to park their loading trucks in West Wharf Road and due to that complication used to arise in traffic". Thus the discrepancy between the evidence of these two witnesses is material and casts great doubt on Mr. Shahabuddin's evidence. I have also earlier pointed out that Mr. Shahabuddin's evidence about nuisance by cranes is equally unreliable. Therefore it was unfortunate that the Courts below relied so heavily on it. But, according to Mr. Dastgir, they were justified in so doing because his (Mr. Shahabuddin's) evidence was supported by the statements in the K.P.T's. Letters to the respondent.
Now, although the respondent examined two supervisors of the K.P.T. Neither of these witnesses went to the length of making against the appellant the allegations contained in the K.P.T's. Letters.
Further, the statements in these letters are only that statements of the opinions of the authors of the letters, and as they were not examined, the letters are of hardly any evidentiary value. I am therefore, of the opinion that Mr. Shahabuddin's evidence was grossly exaggerated an is not fit to be believed. On the other. Hand, the only nuisance committed by the appellant, according to Mr. Wasiul Hassan, was that it Parke' its trucks in a manner which blocked traffic. But as the appellant carried on business as a carrier, it was entitled to park its trucks s long as it did so in a reasonable manner. Therefore, the real question I is whether it has acted unreasonably, and the proper authority fo deciding this question would be the police and not the Karachi Port Trust. As there is no evidence whatever to show that the appellan was ever prosecuted for causing traffic congestion, and as there is no evidence whatsoever to show that the K.P.T. Or Mr. Wasiul Hasse had ever made any complaint to the Police, I am not impressed by Mr.Wesiul Hassan's evidence. By this I do not mean that the witness was not a witness of truth, but his opinion that the appellant was causing a traffic congestion was not sufficient to establish nuisance.
11. I now turn to the evidence produced by the appellant. The appellant examined its traffic Manager and one Jain Ahmad, who was employed in an adjoining office in the same building. Both these witnesses have emphatically denied all the allegations of nuisance against the appellant, and the question is whether there is any reason to prefer the evidence of Mr. Shahabuddin Ahmed and Mr. Wasiul Hassan to that of these two witnesses. It is true that the Courts below have preferred the evidence of Mr. Shahabuddin and Mr. Wasiul Hassan. They have not cared to examine the discrepancies between the evidence of the two witnesses nor have they considered the effect of the respondent's failure to examine the traffic Department of the Karachi. Police to prove the allegation that the appellant was obstructing traffic and thereby committing nuisance. On the other hand, they have rejected the evidence of the appellant and of his witness Jail Ahmad on the ground that they were interested witnesses. As a litigant is seldom an interested witness the Courts below acted correctly in being critical of the evidence of the appellant's Manager. But I find his evidence is fully supported by that of Jalil Ahmed, and it is necessary to refer to Jail Ahmed's evidence.
12. Jail Ahmad was employed in Edruc Limited, a Company which has its Offices in the very building in which the appellant has its warehouse, and he said in his evidence "We have no complaints against opponents for parking their trucks They do not keep the machines of the trucks running when trucks are parked. There are other godowns also in the locality". Naturally the evidence of the witness was limited to what happened during the day because he worked in an office and offices are seldom open at night. Now, although this evidence fully supports the appellant's case, the trial Court rejected it on two grounds, that Mr. Jail Ahmad was an interested witness and that he had no knowledge of what happened at night and therefore his evidence was irrelevant. As to the first ground, on the basis of two letters produced by the witness in his cross-examination (Exhs.25 and 27) the trial Court has come to the conclusion that there was a dispute between the company in which Jalil Ahmad worked and the respondent.
Assuming that a dispute between his employer and the respondent was sufficient to make the witness an interested witness, the respondent had at least to prove this dispute. But Gulzar Ahmad had not said anything about any dispute with Edruc Limited in his evidence. I have therefore, examined the letters (Exhs.26 and 27) on which the trial Court relied for its finding. The first letter is a copy of an inter-departmental letter of Edruc Limited, according to which there was some delay in forwarding a cheque for rent to the respondent. By itself and without any evidence by the respondent, and there is none, this letter (Exh.26) cannot possibly lead to the conclusion that there was a dispute between Edruc Limited and the respondent. Similarly, in the other letter (Exh.27)
Edruc Limited have asked the respondent to carry out repairs. A landlor is under a statutory obligation to carry out repairs from time to tim and as there is no evidence to show that the respondent ever repudiated liability for its obligations. The mere production of this letter (Exh.27 cannot possibly lead to the conclusion that there was a dispute betwee Edruc Limited and the respondent.
' I now turn to the second ground given by the trial Court for rejecting Jail Ahmad's evidence. That ground was that, as the witness did not work in. His office by night, he was not aware of the nuisance committed by the appellant at night. But the alleged nuisance was the blocking of traffic by parking trucks and noise caused by keeping the engines of its trucks running. Assuming for the sake of argument that the appellant's trucks caused noise at night, the demised premises were not in a residential locality nor is there any evidence whatsoever to show that any one worked on West Wharf Road at night, much less any evidence to show that any one worked at night in the building in which the respondent's godown was situated therefore even if the evidence of the respondent's witness about noise is believed, I do not see how this could amount to a nuisance because there would be no one to disturb. Similarly, the parking of trucks on West Wharf Road at night cannot cause a traffic congestion because there is hardly any traffic on that road by night. The result of this discussion is that the trial Court rejected Jalil Ahmad's evidence by misreading it and by misreading the law. It is true that the First Appellate Court has agreed with the trial Court's finding, but on the sole ground that Jalil Ahmad's evidence was negative and therefore could not be accepted. Presumably, the evidence was described as negative because the witness had denied the respondent's allegation of nuisance. To say the least, the view of the First Appellate Court is peculiar and can only be attributed to its gross delay in pronouncing judgment. As rightly submitted by Mr. Munawar Abbas, the First Appellate Court has not cared to scrutinise the evidence but has reiterated the trial Courts view without applying its mind to it. Therefore Jail Ahmad's evidence was wrongly rejected. It is reliable and lends support to the evidence of the appellant's General Manager. In this situation, bearing in mind the heavy burden of proof on a party alleging nuisance, I do not see how the evidence of Mr. Shahabuddin or of Mr. Wasiul Hassan is sufficient to prove the respondent's case.
13. Mr. Dastgir then advanced the usual argument that as this wa a second appeal I could not interfere with the concurrent findings of the Courts below against the appellant. Rut as those findings ar based on a misreading of evidence and on a misapprehension of the law I set them aside and I hold that the respondent has failed to prov that the appellant has committed nuisance and/or violated the terms o his tenancy.
14. I now turn to the second issue which is the only other material issue in this appeal. That issue relates to the cancellation of the K.P.T's. Sanction to the respondent to grant a sub-tenancy to the appellant and the effect of that cancellation.
15. The respondent's case under this issue is based entirely on the K.P.T.'s letters to it, to which I have referred earlier, and it is sufficient to state here that the K.P.T. Had purported to cancel it sanction for the sub-tenancy in favour of the appellant by its letter dated 19-9-1962 (Exh.9/3). Similarly, by another letter to the respondent dated 26-5-1965 (Exh.15) it had again cancelled the permission granted by it to the respondent for the sublease to the appellant. It is true that under the head lease (Exh.6) the respondent could sub-lease to tenants only with the sanction of the K.P.T. But as no tenant, whether of open land or of a building, can be ejected except under the provision of the said Ordinance, the real point for determination under the issue is the legal effect of these letters.
The letters (Exhs. 9/3 and 15) of the K.P.T. Might be relevant to the contractual tenancy between the appellant and the respondent. But as the appellant is admittedly protected by the said Ordinance, as long as the said Ordinance is in force, it can only be evicted under section 13. The result is that I order to eject the appellant the respondent has to prove not that the K .P.T. Has come to the conclusion that the appellant has committee nuisance but to prove that appellant has been committing nuisance. As I have held that the the respondent. Has failed to prove its allegation of nuisance against the appellant, it follows that the view of the K.P.T. As contained in the aforesaid letters is not relevant, the more so a the authors of the letters were never examined. Therefore even if the K.P.T. Has purported to cancel the sub-lease of the appellant, the cancellation is of no effect in view of the said Ordinance. Accordingly, this issue is also decided in the appellant's favour.
16. I set aside the judgment of the Courts below and dismiss the respondent's eviction application.
The respondent shall pay the costs of the appeal. For the reasons give hearth this judgment was pronounced in Court on 21-3-1972.