1. MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought form judgment, dated 20th February, 1986 of the Sind High Court; whereby the petitioner-tenant's appeal against orders of his eviction from a shop, was dismissed.
2. The petitioner runs a poultry business in the shop, While the respondent-landlord's plea is that the cages full of live poultry are placed in and around the shop, the petitioner's case was that he used the shop as his office and the cages were placed on the footpath. The respondent's further allegation against the petitioner was that the bad smell of poultry; as also, the rubbish and filth which was the by-product of the poultry business on account of slaughtering the same in front of the shop (not disposed of by the petitioner in proper manner and it was thrown around the shop) caused serious nuisance to the inhabitants of the building. As against this the petitioner's reply was that his was not the only poultry selling shop; there were several others in the same street which had become a full-fledged Bazar on account of several shops including those selling vegetable, meat and fish. He denied the allegation with regard to the slaughtering of the poultry. According to him it was done by other persons who were available on hire in the street. And that it was further pleaded by him that there was no filth or rubbish. It was kept in proper containers.
3. The question of nuisance has been discussed in the impugned detailed judgment with reference to case-law for and against the proposition as to whether in the circumstances of this case the petitioner was guilty of nuisance so as to be liable to be evicted on this ground.
4. Learned counsel, inter alia, contended that when a whole locality becomes a business area the addition of one or other shops would not amount to nuisance for residents of the locality. In other words, the plea is that when the entire locality has become a business area where every type of eatables are being sold including the poultry which is slaughtered after purchase by the customers at their instance in the street by persons available for doing this act the petitioner alone could not have been picked up for having created nuisance for the inhabitants. He has relied in this behalf in particular on cases from foreign jurisdiction--St. Helen's Smelting Co. v. Tipping 1865 XI H.L.C., 642= 2, English Report 642 and, Bihari Lal v. James Maclean and others (1924) 46 All. L R 297.
5. After hearing the learned counsel, we consider it a fit case to examine the questions raised in this petition. Accordingly leave to appeal is granted.
6. Security Rs.2,500.
7. Stay granted on 26-6-1986 shall continue in operation till the decision of the appeal.