1. ' SAJJAD ALI SHAH, J.---This appeal with leave calls in question judgment dated 11-11-1985 of High Court of Sindh in F.R.A. No,868 of 1983, whereby appeal against order of eviction passed under section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959 is dismissed. Briefly stated relevant facts giving rise to this appeal are as under:- ' Appellants and respondent before us are tenants and landlord respectively (to be referred as such hereafter) of tenement which is consisted of two shops situate on the ground floor on Plot No,11-C, Commercial Area, Mohammad Ali Housing Society, Karachi, on rental of Rs,700 per month.
2. On 1-9-1970, both parties executed agreement of lease, which contains provisions, inter alia, that tenants would not make change or alteration in the premises or any part thereof without prior permission of landlord and also there is a prohibitory clause in the said agreement stopping tenants from causing inconvenience or nuisance to the neighbours or adjoining tenants. On 6-2- 1972 landlord filed ejectment application which was registered as Rent Case No,462/72 in the Court of XVII-Civil Judge and Rent Controller Karachi, for eviction under section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959. It was alleged in the said application that tenants in violation of terms of agreement and without prior permission of landlord, had cut a big hole in the southern side of the wall of the tenement and fixed a big exhaust fan in it, which caused vibrations throwing fumes polluting the air. It was also alleged that tenants used demised premises as Snack Bar and as such obnoxious fumes produced by frying of fish, vegetables and other eatables on gas burners and thrown out by exhaust fan had become nuisance for inmates in nearby residential flats. It was also alleged that tenants had been using Deep Freezers, Air-conditioners, Ice-cream machines and other electric appliances unauthorisedly exposing water pump dynamo to serious risks and endangering the whole building. Also complaint was made that tenants had been serving customers outside in the open till 4-00 a.m. In the morning, hence noise caused by shouts of waiters and blowing of horns caused nuisance. In the written statement filed by the tenants allegations made against them were denied. Execution of agreement of lease was admitted with the exception of clause 10(a) which was alleged to have been added surreptitiously. About exhaust fan, plea was taken that it was fixed with prior permission of landlord. It was further stated that landlord had filed Suit No,540/71 against tenants in which same allegations were made as in the ejectment case hence the matter was sub judice. Keeping in view pleadings of the parties, as many as nine issues were framed. In the evidence, landlord examined himself and four other witnesses. On the other hand tenants examined Hassan Ahmad and four other witnesses. Issues Nos.1 to 5 and 8 were found in the affirmative. Separate findings were recorded for Issues Nos.6 and
7. Resultantly eviction was granted on the grounds that tenants caused nuisance to neighbours and other tenants and value of the property was impaired by the acts of the tenants.
3. ' Against order of eviction dated 8-10-1978, in R.C. No,462/72, tenants filed Rent Appeal No,585/78 which was heard in the Court of VIIth Additional District Judge at Karachi. During the hearing of appeal, tenants filed an application dated 16-9-1979 for recording of additional evidence of three witnesses named therein as Jamaluddin, Sabir Ali and Abdul Khalid working in KMC. This application was dismissed vide order dated 11-12-1979 and subsequently appeal was dismissed on merits vide judgment dated 31-3-1980. Somehow, copy of this judgment is not included in the paper book. Against dismissal of appeal, as stated above, tenants filed second Appeal No,209/1980 in the High Court of Sindh at Karachi. This second appeal was allowed vide judgment dated 20-12- 1982, whereby the case was remanded on the ground that the Rent Controller was not justified in closing the side of tenants and the first Appellate Authority acted illegally in disallowing request of tenants to summon three witnesses named in the application. Consequently case was remanded back to the Court of Rent Controller with direction that summons be issued for examination of the witnesses mentioned in the application dated 19-4-1978 and the case be decided afresh in accordance with law in the light of the evidence brought on the record.
4. ' Against the order of remand by the High Court, landlord filed in the Supreme Court Civil Petition No,121-K of 1983 for leave to appeal in which leave was granted vide order dated 23-1-1985 and resultant Civil Appeal No,6-K/85 was dismissed as withdrawn vide order dated 21-4-1985.
5. ' After remand back in the Court of Rent Controller, the same Rent Case No,462/72 came to be decided by Mr.Allah Rakhio Leghari, VIIth Senior Civil Judge/Rent Controller, Karachi, who, as directed by the High Court, examined two witnesses namely, Jamaluddin and Sabir Ali, both Inspectors from KMC while third witness named in the application was given up on the ground that either he had died or left service of KMC and his whereabouts were not known. After assessment of evidence already on the record and additional evidence recorded by him, the learned Rent Controller allowed eviction and directed tenants to hand over vacant possession within 60 days from the date of his order. Against the order of eviction, tenants carried appeal to the High Court which was registered as F.RA. No,868/83 and was heard and dismissed vide judgment dated 11-11- 1985, which is impugned in this appeal before us.
6. In appeal for consideration before us, leave was granted to examine the three contentions: (1) whether permission to install exhaust fan had already been granted by the landlord, (2) whether such permission was in accord with stipulatibn in the lease agreement that tenants were permitted, to make additions and improvements in the demised premises at their own expense as may be necessary for their business, and (3) since disputed premises were let out as snack bar and restaurant so permission of exhaust fan in the kitchen was implicit in the lease agreement.
7. ' In order to examine the contentions mentioned above, it would be necessary to examine firstly lease agreement, secondly the pleadings of the parties and the evidence brought on the record and thirdly the correct legal position on the issues of nuisance and damage to the value of the property. Now so far agreement of lease is concerned, photo copy thereof is available in the paper book at page 200, and this agreement was executed by the parties on 1-9-1970. Relevant features of this agreement for the purpose of this appeal under consideration are that the premises are let to be used and utilized for purposes of establishing and running an ice-cream and snack bar and a restaurant. Secondly, tenants are required to keep the premises clean and in hygienic condition and to enjoy peaceful possession without causing any nuisance or inconvenience to the tenants over-head or in the adjoining shops. Thirdly, tenants shall be responsible to control their employees and customers from trespassing into other portions of the building and shall in no case use Verandah or passages leading to the staircase for storing empty cans or other stuff or occupying the same in any other manner. Fourthly, tenants, at their own expense and after written consent of landlord can cause such alterations and improvements as may be required for the purposes of their business. It is also mentioned in the said agreement that after expiry of lease, tenants shall vacate premises and put the landlord in possession of the same after restoring the same in good order and condition but shall not remove or pull out any fixtures or other improvements excluding air-conditioner or other articles used by tenants for their own purposes and comforts.
8. ' In the ejectment application filed on 6-3-1972, copy of which is in the paper book at page No,85, grievances were made that tenants in violation of terms of agreement and without permission of landlord, cut through a big hole in the wall of the building and fixed a big exhaust fan in it. The fan caused virbrations and started throwing out fumes which polluted the air for residents of the flats overhead. Shop of tenants, while used as snack bar, produced obnoxious fumes due to frying of fish, vegetables and other eatables on gas-burners which passed through the exhaust fan, making it disagreeable and unhealthy for the inmates of residential flats. Due to the offending acts mentioned above, two tenants named therein felt compelled to give up their tenements. In spite of repeated requests and notices, tenants had refused to remove the said exhaust fan and stop nuisance. Tenants unauthorisedly had taken leads from electric meters for use of deep-freezers, air-conditioner, ice-cream machines and other electrical appliances, exposing water pump dynamo to serious risks of burning and causing denger to the whole building. Tenants served customers outside premises on the road until 4-00 a.m. Hence noise and blowing of horns caused nuisance for residents in the area. Careless and excessive use of water caused choking up of gutter lines and spreading of water in the whole area. Tenants used abusive and insulting language against other tenants of the same building and misbehaved with Chowkidar, care-taker and rent collector of landlord. Tenants unauthorisedly took another shop from Haji Abdul Latif and set up kitchen in it for which unauthorised supply of gas is arranged. Tenants used premises in unhygienic manner by cleaning dirty utensils and throwing vegetables and leftovers of eatables, which had given rise to obnoxious smell causing nuisance to the residents of the area. Finally it is stated in the application for ejectment that offending acts enumerated above, had materially impaired the value and utility of the building causing substential material and financial loss to the landlord.
9. ' In the written statement filed by the tenants, copy of which is in the paper book at page 90, allegations made by landlord are denied including violation in the terms of agreement. It was denied that exhaust fan emitted any fumes to annoyance or inconvenience of others. Assertion was made in the written statement that exhaust fan was installed with prior permission of landlord.
10. Assertion was made in the written statement that landlord had made similar false accusations against tenants in Suit No, 540/71, which was pending in the Court as such the matter was sub judice. All other allegations were denied one by one including setting up kitchen in another shop with unauthorised gas connection.
11. ' In the evidence, landlord examined himself and four other witnssess. PW-1 is Erach Aga. He deposed that he was looking for accommodation for his tenant who was to vacate his tenement.
12. He inspected flat above demised premises but did not like the approach because staircase and connected area was blocked by cycles and crates of Coca Cola bottles and empty tins. There was rubbish also and bad smell. Smoke was coming in the flat. Landlord agreed to reduce the rent from 500 to 400 but even then he did not approve the flat for the reason that it was not fit for use of family. In the cross-examination this witness admitted that he was client of Mr. Ibadat Yar Khan and knew him thoroughly well. We exclude his evidence from consideration. PW-2 is Siraj Hussain, who deposed that in June or July 1973 he went to see the flat above demised premises after reading advertisement in "Dawn" and "Sun". He did not like the flat for the same reasons as were stated by PW-1. He informed the landlord that he would take the flat only when defects were removed including smoke coming from exhaust fan. In cross he admitted that flat, he inspected, was in commercial area and there were other snack bars on both sides of the building. In principle he had no objection in living in commercial area but on second visit, flat was not approved by his family. He and his family disliked flat, due to fumes and smoke. PW-3 is Dr. Muhammad Saeed Khan, who deposed that he is tenant of the landlord in this case. He was not satisfied with clinic situation and its surroundings for the same reasons as stated by other witnesses examined by the landlord. His clinic was on the first floor and he had to pass through the staircase which was dirty and remained blocked with empty crates. According to this witness smoke went into rooms above the premises in question. In cross-examination this witness stated that landlord had promised for removal of nuisance, hence he continued tenancy. PW-4 is Muhammad Moinul Karim, an employee of Muhammad Ali Cooperative Housing Society, who identified signature of Asafullah Khan, Officer Incharge, on Ex.11. He further stated in cross-examination that office did not take action against landlord in respect of Ex.11 but verbally asked the tenant and in that context a letter was also sent to the tenant.
13. ' PW-5 is Mr. Ibadat Yar Khan who is the landlord. In deposition his examination-in-chief runs into seven pages. He has narrated all-the relevant facts in the background including terms and conditions of the- tenancy and undertaking given by the tenants to him that they shall not conduct their business in such a manner as to cause nuisance to other tenants and reduce the rental value of the building. He enumerated acts of commission and omission by the tenants in violation of terms of agreement as stated in the application for ejectment and claimed further that he lost several tenants residing in the flats above-demised premises including Mr. M. Alhararry Commercial Attache of Saudi Arabian Government, Mr. Woolrich and two other tenants from PIA one of whom was employee of Nairoby and those tenants had to go away on account of hostile attitude of the tenants of the demised premises and their offending acts which amounted to nuisance. Landlord also mentioned that on account of such acts of the tenants of the demised premises there were protest letters from KESC and Administration of Muhammad Ali Housing Society. He also received letters from Mr. Alherairy, which were produced as Exhs.13, 17 and 18 in Suit No,540/71. Landlord, also stated that on account of offending acts of the tenants of demised premises, his flats in the same building mostly remained vacant and interested parties used to hesitate and shy away from accepting tenancy in those flate because of acts of tenants of demised premises amounting to nuisance. Landlord has further fully supported and backed all the allegations made by him in the application for ejectment even with documents wherever found necessary. Landlord complained that tenants had dug a big hole in the wall of the shop and fixed a big exhaust fan which started throwing fumes and gases causing discomfort to the occupants of flats. There was no funnel on the exhaust fan and when date was fixed for inspection in Suit No,540/71, quickly a tin funnel was fixed on the fan only and such photograph was also taken by him. Landlord was subjected to very lengthy cross-examination running into nearly 11 pages, which was recorded in instalments.
14. ' In cross-examination landlord has explained how clause 10(a) came to be inserted in the agreement providing 10% concession in the price to him. This clause was added subsequent to the typing but before signature. Landlord has explained that originally the shop was let out as Ice- cream selling centre with some light items of vegetables which could be called as a snack bar but it was expressly agreed that keeping in view the situation of premises there would not be a full- fledged kitchen or any other establishment disproportionate to the safe situation of the premises.
15. In agreement it was left to the good sense of the parties but the things were to be done within the limitations agreed between them. Main complaint was that due to vibration of huge exhaust fan there was noise disturbing the peace and also fumes and smoke were thrown into the living rooms of two flats on the first floor of the building. Breaking up of the wall and masonry was done without permission of the landlord. Landlord admitted that first exhaust fan was fixed just after tenancy but it was not an exhaust fan but was an exhaust duck. No fan was ever fixed before the disputed one.
16. Landlord admitted that he did not make any complaint to the KMC or Administrator of Muhammad Ali Housing Society but he received complaint from the Society itself. In the suit filed by him, application was made for injunction and also for site inspection and before that date at night, tenants put up a chimney over the exhaust fan. Landlord also produced letter dated 1-9-1973 Ex.25 from Mr. Ibrahim-bin-Digo, a Libyan trainer in PIA who had taken flat for a long time but on account of nuisance caused by the tenants of demised premises had to leave after two nights.
17. ' On the other hand, tenants have examined Syed Hassan Ahmed and six other witnesses. DW-1 is Syed Hassan Ahmed, who is Manager of the firm of tenants called M/s. Asad Brothers. He is partner in the business of Spinzer run by tenants in the disputed premises. According to him, premises in dispute were taken for running a snack bar, which business is done between 10 a.m. And 2 a.m.
18. There are 8 other snack bars in the same locality which is commercial area. According to this witness he did not receive any complaint from any quarter and tenants had permission for fixation of exhaust fan which is a must for such business. He has his own meter of electricity. He did not use water from the water pump of the landlord. He sold drinks and snacks to customers outside the premises but in their cars. He admitted having cooling machine to supply cone ice-cream. He did not receive any complaint from the landlord or any other person regarding mode of service. He denied creating any nuisance by spilling water near the water tank. His whole examination-in-chief runs into one and a half pages. It is not necessary that his examination-in-chief should be as long as that of landlord but it is expected that all allegations made by the landlord in the application for ejectment or in his evidence should be sufficiently met or answered in reasonable manner one by one.
19. ' Anyway, in the cross-examination this witness replied that when he took premises there were two overhead tanks but water was stored in one and he took water from the said tank. Meter of water pump was changed to his name at his own request and electrictity meters were also transferred in his name. Eatables are prepared in the other shop having water pump and there is a kitchen in that shop. This shop is in possession of Haji Abdul Latif. Gas meter of the shop in occupation of Haji Abdul Latif is situated in the open space near the wall of Spinzer. This witness has admitted that he has kitchen in snack bar and there is pantry within the shop premises in his occupation. He has denied that shop of Haji Abdul Latif is in his possession but has admitted that he has kitchen in that shop. He has denied that he has installed gas meter and gas line in the said shop without permission from landlord. He has admitted that he requested landlord for blue-prints of the building for fixing up exhaust fan and air-conditioner and landlord wrote to him that he would come personally and give him that permission verbally. Thereafter landlord came and gave him requisite permission. This witness also stated that landlord did not give him the blue-prints. He admitted that there are about 13 or 14 bearers in the snack bar. He denied other allegations made by the landlord with regard to making noise, throwing rubbish, blocking up staircase etc. He expressed ignorance that due to vibrations caused by exhaust fan, many tenants in the building had left tenements.
20. ' DW-2 is Choudhry Altaf Hussain, who has deposed that he is tenant of the same landlord in the same building of tenement on the first floor. He has never been affected by the fumes of the chimneys behind the snack bar. No other occupant on that floor made such complaint. He denied that tenants in the disputed premises caused any nuisance in any manner. In cross-examination this witness admitted that landlord had filed a case of ejectment against him and on the order of the Court he has deposited in the Court arrears of rent amounting to Rs,10,500 and also has been depositing current rent. This witness also admitted that he and other tenants complained to Martial Law Authorities for non-supply of water. He denied that landlord demanded from him and other tenants electricity charges for water pump. This witness admitted that one flat in the building was still lying vacant. It would be best to keep evidence of this witness out of consideration for the reason that he has grievance against the landlord as per his own admission.
21. ' DW-3 is Muhammad Ashraf Qazi. He has deposed that he has been visiting commercial area since 1969 and has been visiting Mr. Muhammad Saeed who has clinic in the same building in which Spinzer snack bar is situated. He had never seen dirt, filth or garbage lying inside or outside the building. He has also stated that electric connection in the premises of Spinzer is same which K.E.S.C. Had installed. In cross-examination this witness stated that he saw Dr. Saeed only twice or thrice when he was unwell. In 1974, he inspected switch-board under the staircase. He did not know Proprietor of Spinzer but met Mr. Hassan a few days ago. He came to the Court on the request of landlord to depose whatever he had seen. He did not charge anything from Spinzer for inspecting switch-board. DW-4 is Azizul Hague, who had deposed that he is employee of National Beverges and has been supplying Coca Cola and other cold drinks to Spinzer. He did not see any filth or dirt or garbage in the premises. He has stated that empty bottles were not kept outside because they are costly. In cross, this witness stated that he has friendship with Choudhry Altaf and used toilet near the staircase in the demised premises. DW-5 is Abdul Majeed who has deposed that he was employee of landlord for about a year and half in the past as Chowkidar of the same building. It was 5 or 6 years ago. He knew proprietor of Spinzer. There was toilet beside the staircase which was for common use and the one inside Spinzer was in the use of Spinzer. He saw no dirt or filth or garbage in the premises. He received no complaint from anyone. In cross, he admitted that he has been visiting tenants of disputed premises oft and on for the last 5/6 years but further claimed that he had appeared in the Court because he received summons. He admitted that 10/12 days ago tenants of the disputed premises asked him to come to the Court for recording his evidence. He also admitted that owners of the snack bar used to give him food as he was Chowkidar of the building. It is obvious that these three witnesses DW-3, DW-4 and DW-5 are interested witnesses and are not fit for reliance.
22. ' DW-6 is Jamaluddin who was Health Inspector, KMC in the year 1975-76. He deposed that he visited Spinzer snack bar and had not received any complaint about its unhealthy condition. He did not see any garbage in the premises. Exhaust fan is connected with chimney and there was no bad smell or smoke. He never received any complaint nor challaned proprietor of that snack bar. In cross-examination he stated that he did not remember whether there was exhaust fan in the disputed premises in the year 1975-76. He had not seen Haji Abdul Latif in person but stated that licence of the snack bar was in his name. He stated that there was no chimney in the shop of Haji Abdul Latif but there was exhaust fan in the said shop for which chimney was not necessary. He did not challan Haji Abdul Latif. He did not remember as to who were challaned by him in the last five years. DW-7 is Sabir Ali who deposed that he was Food Inspector in the year 1973-75 and again 1978-80. He visited Spinzer snack bar to check food adulteration and general sanitary conditions.
23. He did not notice any defect or fumes or smoke coming from exhaust or chimney. In cross this witness admitted that he was giving evidence from his memory in the absence of record from KMC Food Department. He admitted that he did not remember if there was chimney in the disputed premises in the year 1973 but exhaust fan was there. He also stated that chimney was necessary in the year 1973 under KMC Licensing Rules, 1973 for eating houses but did not remember whether he reported to the authorities that licensee of Spinzer snack bar was to be prosecuted for want of chimney. This witness was put a lot of questions by the Court. In answer to the Court questions he stated that he had come to the Court for recording of his evidence without bringing record of KMC.
24. According to him he was not summoned to produce the record and nobody asked him to give evidence on any particular point. He admitted that he had not checked licence record of eating houses before giving evidence. He had not seen record showing Abdul Latif as running kitchen adjoining the disputed premises. He insisted that there was no entry in the record about sanitary condition of the disputed premises and he had checked the same before coming to the Court. We may observe here that evidence of these two witnesses from KMC does not inspire confidence and they appear to have given evidence rather obligingly and in the absence of the supporting record.
25. It may also be mentioned here that tenants did not examine third witness from KMC, whose name appeared in the list for the reason that his whereabouts were not known and closed the side.
26. ' It would be pertinent at this stage to mention that the learned Rent Controller inspected the site on 17-7-1978 in presence of counsel for the landlord and attorney of the tenants and also their General Manager. According to this inspection report, copy of which is in the paper book at page 151, there was underground water tank for entire building at the front side entrance. Water pumping machine was lying disconnected from power meter. There was separate and parallel water pipe line connected with power meter leading to small overhead tank in the shop in possession of Haji Latif.
27. That shop was being used as big kitchen. Open space on the ground floor, which was available to the inmates of the whole building was closed by wall limiting its use for the benefit of tenants of the disputed. Premises and shop of Haji Latif. Toilet in the corner of that space was being used as pantry and place for washing utensils. Gutter lines of three upper tenements passed through and down to the said toilet. A big hole was made in the toilet to allow gas chimney of tenants of the disputed premises to pass through. Chimney and another such chimney connected with the exhaust fan opened on to the roof of the building. Exhaust and air-conditioners were fixed in the wall of premises under occupation of tenants of the disputed premises.
28. Evidence produced by both the parties as stated above, clearly shows that evidence produced by the landlord is in quantity as well as quality more reliable and convincing in nature standing in good stead supporting contentions of the landlord. He has produced documents. As against that evidence, on the other hand, evidence produced by the tenants is unsatisfactory. On the questions of fact evidence produced by the landlord has been believed by the learned Rent Controller and the High Court in appeal.
29. ' Before us, Mr. Fakhruddin G. Ebrahim, learned counsel for the apellants/tenants submitted that tenants have not committed any acts of nuisance which have been attributed to them and further they have not violated terms of the agreement. It was further submitted that landlord has enumerated offending acts imputed to the tenants amongst which the main complaint is that the tenants have cut a big hole in the wall of the tenement and fixed an exhaust fan, which causes vibrations and emits smoke and smell resulting into inconvenience and nuisance for occupants of the flats on top of demised premises and other neighbours. On behalf of tenants these and other allied allegations have been stoutly denied and in support of denial reference is made to several documents.
30. ' Mr. Fakhruddin contended that in order to appreciate the stand taken by the tenants, it would be necessary to keep into consideration salient features of the case that firstly there was agreement to open and run snack bar and restaurant. Secondly, tenants were permitted to carry out alterations and improvements as may be required for purposes of their business. Thirdly, permission had been obtained from the landlord for fixation of exhaust fan. In this context we have perused the contents of the agreement of tenancy executed between the parties. This agreement was signed on 1st September, 1970. At that time premises as were available with landlord and described in second paragraph of this agreement were let out to the tenants as show-room consisting of two shops situated on the ground floor of the building with mezzanine floor over the said hall on terms and conditions, which have been specified in the said agreement. There is no dispute about the fact that premises were let out for the purposes of establishing and running an Ice-cream and snack bar and restaurant. This was allowed to be done subject to the limits fixed in clauses 2, 3 and 4 of the same agreement, which provide riders that tenants shall keep the premises clean and in hygienic condition and shall enjoy peaceful possession without causing any nuisance or inconvenience to the tenants overhead or in the adjoining shops. Secondly, the tenants shall not use Verandah or passage leading to the staircase for storing empty cans or other stuff or occupying the same in any other manner. Thirdly, the tenants at their own expense and after written consent of the landlord shall cause such alterations and improvements as may be required for the purpose of their business. It is quite obvious that alterations and improvements have been made not after obtaining written consent from the landlord. Now question arises for consideration whether in the instant case written consent has been obtained or not for making a hole and fixation of exhaust fan in the wall. In the written statement in paragraph 5 assertion is made that exhaust fan had been fixed with prior permission of the landlord. No mention was made about permission in writing. In paragraph 2 of application for ejectment, landlord stated that as per terms of agreement, tenants were not to make any change or alterations in the premises without obtaining prior written permission from the landlord and in the written statement in paragraph 3 it is stated that contents of paragraph 3 of ejectment application are not denied. Moreover, clause 4 of the agreement clearly shows that written consent of the landlord has to be obtained. In an effort to show that consent was obtained, reference was made to letter dated 6th November, 1970 written by Manager of the tenants and addressed to the landlord. According to this letter, suggestion was made for fixing several items including two exhaust fans for which approval of landlord was sought. Landlord replied vide letter dated 9th November, 1970 informing the tenants that so far requirements of fixing air-conditioners, exhaust fans and other items were concerned, there would be no objection provided tenants sent to the landlord draft plan or discussed the scheme personally on site so that position of the proposed items may be discussed. It was further mentioned that while fixing these items care should be taken that no cutting through the pillars or beams is made in any case and secondly that these items are fixed at such position as to cause no inconvenience to other occupants -)f the building. At the end of this letter it is stated that funnels for exhaust lines be taken high above the living flats to avoid pollution of air. There is another letter dated 22-11-1970 on the record which is addressed by landlord to Mr. Hassan informing him that for exit of smoke if there is no other way except bath room then in that case hole should be made at least one foot below roof so that no damage is done to beam and slab over it.
31. Tenants were further called upon in that letter to direct their men to show the position of the place of making hole to the landlord before undertaking that exercise. Now there is no evidence produced to show that directions given by landlord in his letter dated 9th November, 1970, were carried out by the tenants and draft plan was sent to the landlord or the scheme was discussed with him personally at the site. Even letter dated 22-11-1970 of landlord addressed to Mr. Hassan contains further direction that hole before being dug be shown to the landlord. Total reliance has been placed by the tenants upon the letter of the landlord written by him on 23rd December, 1970, addressed to the tenants and it is contended that this letter signifies total satisfaction of all the works carried out by the tenants including hole in the wall and fixation of exhaust fan. This contention is not acceptable for the reason that the letter mentioned above connotes satisfaction of landlord in respect of colour washing and other works undertaken by the tenants and bringing business arrangement to normal. Even then landlord complained that at the rear of the building and in the open space stuff was stored which was directed to be removed. Tenants were directed to remove stuff from the shop as well as open yard and peeling of potatoes and onions in the open yard and stocking of empty milk bottles in the open yard was prohibited for the reason that on that account flies were attracted and ugly look was given to the place which was unpleasant to the tenants and their visitors. It was pointed out that at the end of this letter mention was made that masonry broken by the workmen while taking out Chimney was still not repaired and landlord gave direction that the same be done and masonry works be restored to its original position.
32. It is very difficult to read in the letter of landlord dated 23rd December, 1970 mentioned above, that he was fully satisfied with all the works carried out by the tenants including digging of hole in the wall and fixation of exhaust fan. Had it been so landlord would not have made other complaints in it. Secondly there is no mention in it as to whether the hole was made and whether it was made at the place suggested by the landlord and further whether the place was shown to the landlord before the hole was dug and approval was sought from him or not. Business arrangements could be brought to normal and such certification could be made without fixation of exhaust fan in the wall. DW-1 Syed Hassan Ahmed, Manager of the firm and partner in the business has deposed at page 126 of the paper book that they sold drinks and snacks to customers outside the premises but in their cars. He further stated at page 127 of the paper book that water pump was situated in one of the shops which was not in his possession. Eatables were prepared in the shop having water pump and there was kitchen in that shop. That shop was in possession of Haji Abdul Latif. The said shop was open on the back side of the building. He purchased eatables from that shop for his snack bar. Cash memo. Was not given for eatables purchased by him from that shop. Coming back to the letter dated 23rd December, 1970 of landlord, it does not appear clearly that landlord had given written consent or approved making of hole in the wall and fixation of exhaust fan.
33. Tenants had to do something more than simply relying upon this letter to imply in it which is not expressly stated that landlord gave consent for hole in the wall and fixation of exhaust fan. Such assertion should have been proved by the tenants with positive evidence. It was incumbent upon them to have produced evidence of the kind which could support the contention made by them.
34. ' Landlord testified before the Rent Contoller that initially there was agreement between the parties that in the premises will be run ice-cream selling centre with service of some light items and keeping in view the situation of the building no permission was given for opening a full-fledged kitchen. Landlord had permitted tenants to put up a gas stove within the shop near the counter of the bar. In the beginning of the tenancy, tenants had put up an exhaust duck and no exhaust fan was ever fixed before the disputed one. Main dispute arose when tenants made a big hole in the wall and fixed a very big exhaust fan which started vibrating and throwing fumes and gases to the discomfort of occupants of two flats namely Mr. Harairy and Mr. Woolrich who complained to the landlord about the nuisance. Landlord has also deposed that there was no funnel on the exhaust fan to take the fumes out and when the Court fixed a date for inspection on 17-7-1978, the tenants put up quickly a tin funnel on the fan and the rest was open and landlord had taken such photograph of the construction which was not allowed to be produced. The landlord was shown letter dated 23rd December, 1970 and he stated that the said letter was written not by him but by his clerk Hassan Ali Khan. In any case, we are of the view that this letter is not sufficient to presume as asserted by tenants that landlord had given his consent or approval for digging a big hole in the wall and fixing big exhaust fan. There is another letter dated 26th Febraury, 1971 in the paper book at page 212 written by landlord to the tenants in which it is stated that Commercial Attache of Saudi Arabia, who was tenant above demised premises had threatened to vacate if nuisance complained of was not removed and that nuisance was on account of exhaust fan which produced noise, smoke and smell. In this letter it is also mentioned that other tenants had also complained about the noise made by customers. Then there is another letter dated 6-3-1971 addressed by landlord to the tenants in which they are requested to stop operation of exhaust fan immediately as landlord had received telephonic complaints from other tenants in the same building.
35. ' Lastly, there is letter dated 16th March, 1971 on the record at page 217 of the paper book addressed by tenants to the landlord in which reply is given to many of his letters written earlier resting with last letter dated 11th March, 1971. Exceptions were taken to allegations made by the landlord which were vehemently denied. Relevant paragraphs from this letter are reproduced verbatim as under:- - "You complain that our customers are causing .Nuisance which is very strange. We have not taken your property on lease to be preserved as a monument or to be used as a museum. It is a commercial area and we are fully entitled to the use of the premises for commercial purposes within the framework of the law of the land.
36. ' Your baseless complaints and the equally baseless complaints of other tenants (if any) are straining our relationship. You will appreciate that as your tenants we are enjoying certain rights, privileges and amenities appurtenant thereto and nobody will be permitted to interfere with our rights, privileges and amenities. You have been indulging in unlawful activities by holding out threats against us and interfering with us and not allowing us the peaceful enjoyment of the property and denying us the privileges, amenities etc. We expect you to put an end to the present nuisance. We will continue to do our best to maintain the good relationship with you and our neighbours but we reiterate and re-emphasise that we shall not allow anyone to tamper or interfere with our tenancy rights, privileges and amenities.
37. ' Our explanation of the various points raised by you should put to an end the needless and superfluous controversy. In future if you ever address us make sure that the language is that of a gentleman for a gentleman. Our above letter will give you an example."
38. In this case ejectment application was filed on 6th March 1972 under section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959. Offending acts specified in the application and evidence produced show that eviction had been sought on the grounds firstly, that tenants have committed such acts as are likely to impair materially the value or utility of the building and secondly, that tenants have been guilty of such acts and conduct as are nuisance to the occupants of the buildings in the neighbourhood as contemplated under section 13(2) (iii)(iv) of the Ordinance mentioned above. After appraisement of the evidence made by us as stated above, we are of the view that landlord has produced on the record sufficient evidence of convincing nature to justify eviction on the grounds sought by him. This evidence has been evaluated by the Court of Rent Controller and High Court in appeal and their findings are that the tenants are liable to be ejected on the grounds mentioned above. We find no reason whatsoever to disagree with these findings. It is borne out from the evidence that on account of the offending acts of the tenants value and utility of the building was affected to the extent that tenants living above demised premises felt compelled to go away and flats remained vacant for spells of time. New tenants hesitated on accepting tenancy even on reduced rental. On the question of nuisance it can be said that there is difference between residential area and commercial area but that does not mean that in the commercial area there is open licence to the tenants to do whatever they like. There is agreement between the parties in which limitations were stipulated that demised premises were to be used in such a manner that no nuisance or inconvenience was caused to the tenants in the building even if it is said that this agreement had expired. Parties are bound to follow these conditions for the reason that they were consistent with requirements enunciated in West Pakistan Urban Rent Restriction Ordinance, 1959, which provides that eviction can be granted on the ground if acts and conduct of tenants are nuisance to the occupants of the building in the neighbourhood.
39. Commercial area is not such commercial area declared by the law where residences are not permitted. It is in fact residential-cum-commercial and the intention is that there should be shops on the ground floor permitting reasonable commercial activity so that residential requirements in the buildings are also fulfilled. In any case parties to the agreement had themselves agreed that there could be no nuisance for other tenants. Plea of the tenants is not tenable that because tenants were not challaned under the Municipal Act for nuisance or any other offence hence they cannot be said to have committed nuisance at all. Evidence of two Health Inspectors produced by tenants is not helpful to them because their evidence appears to be obliging in nature and was given by them in the absence of record as a gesture of favour. Tenor of letter dated 11th March 1971 of tenants, relevant paragraphs from which have been produced in earlier part of the judgment, clearly shows that tenants were persistently determined to do what they liked without caring for the needs of others just because they were enjoying tenancy rights in commercial area. In the judgment of the High Court impugned in this appeal, there is proper discussion on the definition of nuisance in the light of the case-law on the subject with which we are in complete agreement.
40. ' For facts and reasons stated above, we maintain the judgment of the High Court and dismiss the appeal with no order as to costs.