The respondent filed an ejectment application against the appellant in the Court of IIIrd Civil Judge and Rent Controller, Karachi (East), inter cilia, alleging that the appellant was a defaulter in payment of rent, that the premises were required in good faith for the personal use of the respondent's son, namely, Abdul Hamid Siddiqi, who was residing abroad and wanted to permanently settle in Karachi after his marriage and, lastly, that the appellant had become a source of nuisance for the respondent and other neighbours in the locality.
2. The application was resisted by the appellant. However, the learned Controller, after recording evidence, ordered the appellant's ejectment from the premises in question on the ground of personal requirement of the respondent's son but the other grounds did not find favour with the learned Controller.
3. I have heard Mr. Shaikh Abdul Majeed, learned counsel for the appellant, and Mr. War Hadi Shah, learned counsel for the respondent.
4. It may be pointed out, at the very outset, that it is an admitted position that the respondent's son, Abdul Hamid Siddiqi, had joined service in Kuwait and was not residing in Pakistan. This has been admitted by the witness himself in his cross-examination. Mr. Zafar Hadi Shah although concedes that the witness is still serving in Kuwait but the learned counsel further contends that it has not been denied that the witness got married in Karachi during the pendency of the proceedings before the learned Controller. The learned counsel further contends that the wife of the witness requires the premises for her personal use as she is residing in Karachi. I am afraid there is no evidence on record to that effect. The only evidence adduced by the respondent in support of the personal requirement was that his son, P.W. Abdul Hamid Siddiqi, wanted to get married and permanently settle, in Karachi. Since it is an admitted position that the P.W. Abdul Hamid Siddiqi has not permanently settled in Karachi after his marriage, there is nothing on record to establish that the premises are genuinely and in good faith required by the respondent for his son.
Consequently, I agree with the learned counsel for the appellant that the learned Rent Controller has not exercised his discretion properly by ordering the appellant's ejectment from the premises on the ground of the personal requirement of the respondent's son. Mr. Zafar Hadi Shah has placed reliance on the case of Mst. Ahmedunnissa and others v. Mst. Parveen Siraj (1985 SCM R 2012) wherein it was held that notwithstanding the fact that the landlady was permanently, residing abroad and was visiting Pakistan occasionally, a case for personal use would still be made out.
However, the facts of the instant case are clearly distinguishable because as, I have pointed out, there is no evidence to show that the son of the respondent is visiting Pakistan occasionally or that his wife or children are living in Pakistan.
5. Although the respondent has not challenged the findings of the learned Controller on the other two issues which have been decided against him by either filing an appeal or cross-objections, however, Mr. War Hadi Shah contends that according to Order XLI rule 22 CPC the respondent could still support his case on the issue where have been decided against him. Support has been sought by him from the case of Henry Stanley Ramsden v. S.M. Fazil and Co. (P.L.D. 1964 (W.P) Karachi 290).
Even if the contention is accepted, I do not think that the evidence adduced by the respondent can sufficiently support his plea of nuisance. No doubt, according to the case of the respondent, the appellant had been dealing in illegal sale of labour and men and women of suspicious character were visiting him during late hours of the night etc. But apart from his own evidence on the point, no other evidence was produced in support thereof. Since no person living m the neighbourhood was examined by the respondent in support of his case, the learned Controller did not accept this plea based on his lone statement. Mr. Zafar Hadi Shah has placed reliance on Mst. Firdous Begum v. Dr. Shamsunnissa (1982 CLC 332) wherein it was held that any act or conduct which causes injury, damage, hurt, inconvenience, annoyance or discomfort to another in the enjoyment of his respective right of person or property may constitute nuisance. Mr. Zafar Hadi Shah has also placed reliance upon Ex.6/A which is a news item published in daily "Jung" of 24th July, 1985, showing that the appellant had been apprehended by C.I.A. In connection with his dealing in illegal sale of liquor. However, this evidence by itself is not sufficient to make out a case of nuisance. It must be shown that the tenant has become a source of nuisance to the landlord or other neighbours in the locality which does not contemplate isolated incidents, but persistence. Even if it is accepted that the appellant had been arrested by the police on the above charges his evidence by itself is not sufficient for ordering ejectment of the tenant from the demised premises on the ground of nuisance when, as pointed out above, not even a witness from the neighbourhood was examined by the respondent in support of his case. Mr. Zafar Hadi Shah has contended that the respondent himself was the appellant's neighbour in the premises and, therefore, his evidence was sufficient to support the plea and no further evidence was needed on the point. Although it is true that the sole testimony of a witness can be accepted by the Court but the respondent being the landlord of the premises and an interested witness, implicit reliance could not have been placed on his sole testimony. Mr. Zafar Hadi Shah has not pressed the third issue in regard to the default.
6. In the result, the findings of the learned Controller on the ground of personal requirement are reversed and this appeal is allowed and the impugned order is set aside. The parties are left to bear their own costs.
M.Y.H./0-12/K