1. ' This judgment will dispose of First Rent Appeals Nos. 683 of 1989, 684 of 1989, 686 of 1989, 687 of 1989 and 692 of 1989, as common questions of law and facts arc involved in all these appeals.
2. ' Briefly the facts are that the respondent is owner/landlord of Wahid Market Paposh Nagar, Karachi and the appellants are tenants in respect of flats and shops.
(1) In First Rent, Appeal No,683 of 1989, Sultan Ahmed is tenant of Flat No,14/2 on 2nd floor at the rent of Rs,700 excluding electric, sui gas and other charges.
(2) In First Rent Appeal No,684 of 1989 Arif is tenant in .Respect of Shop No,18 (ground floor) at the rent of Rs,100 per month excluding electric, sui gas and other charges.
(3) In First Rent Appeal No,686 of 1989 Salahuddin is tenant in respect of Flat No,19/I (new No,5/1) 1st floor at the monthly rent of Rs,200 excluding electric, sui gas and other charges.
(4) In First Rent Appeal No,687 of 1989 Salahuddin is tenant in respect of Shop No,19/1 (ground floor) at a monthly rent of Rs,100 excluding electric, sui gas and other charges.
(5) In First Rent Appeal No,692 of 1989 Sultan Ahmed is tenant in respect of Shops Nos. 15, 16 and 17 at the monthly rent of Rs,1.00 each shop totalling Rs,300 per month for three shops excluding electric and other charges.
3. ' The respondent filed eviction applications against the appellants on the ground of default and nuisance. The respondent averred in eviction applications First Rent Appeals Nos. 684 of 1989, 686 of 1989, 687 of 1989 and 692 of 1989 that the appellants failed to pay rent since December, 1983 and as such committed wilful default. The respondent averred in eviction application No,326 of 1986 (New No,729 of 1989) First Rent Appeal No,683 of 1989 that the appellant failed to pay rent since April 1985 and as such he is wilful defaulter and liable for eviction. The respondent averred in para. 4 of the eviction application that the appellant has stored plastic goods in permises in question which is highly inflammable and as such caused nuisance to the locality also.
4. ' The appellants abovenamed filed separate written statements and resisted the eviction applications. The appellants denied the allegation of default. The appellants pleaded that the rent for the premises were paid to the respondent for each month for which no receipt was executed by the respondent despite repeated demands by them. The respondent filed separate affidavits-in- evidence in' all such eviction applications. The respondent repeated the same facts in the affidavits. He stated that rent was payable every month for which he used to issue receipts to the appellants. He stated that he repeatedly demanded rent but the appellants avoided payment of rent on one pretext or the other. He further stated that he had no knowledge that the appellants were depositing rent in Court for the premises in question.
5. ' To a Question in cross-examination he replied that he used to issue proper receipt to the tenants as payment of rent. He denied the suggestion that he used to issue receipt of the past months after the continuous demands of the appellants. To a question in cross-examination he replied that he issued receipt when he received payment of rent. He denied the suggestion that he filed the eviction cases to enhance the rent to harass the appellants.
6. ' As against the above evidence, appellant Sultan Ahmed stated in his affidavit that 'I have been regularly paying the monthly rent and I have committed no default at all in the payment of rent'.
7. The appellant Sultan Ahmed stated in his affidavit that in the month of August, 1985, respondent received an amount of Rs,9,100 from him and he issued a Katcha receipt in this regard. He further stated that while receiving the said amount, it was agreecd that the said amount would be adjustable in future rent of the flat and the shops rented out to my sons namely Aril and Salahuddin. To a suggestion in cross-examination, the appellant replied that 'I have paid Rs,9,100 on 26-8-1985 to the appellant and the applicant not signed the receipt'.
8. ' In Allah Din v. Habib PLD 1982 SC 465 the Honourable Supreme Court held as follows:- "It is no doubt correct to say that the initial burden of proof lies upon the landlord to establish that the tenant has not paid or tendered rent due by him as required by section 13(2)(1) of the Sindh Urban Rent Restriction Ordinance, 1959, but it must be appreciated that non-payment of rent is a negative fact, therefore, if the landlord' appears in Court and states on oath that he has not received the rent for a certain period, it would be sufficient to discharge the burden that lies under the law upon him and the onus will then shift to the tenant to prove affirmatively that he had paid or tendered the rent for the period in question.
9. Applying the above principle to the facts of the instant case, it is clear to me that upon asserting in the evidence that he has not received the rent for disputed period, the respondent had successfully discharged the burden of proof and the onus was shifted to the appellants. If, therefore, the evidence of the two parties consisting of oral assertion testifying that they had paid rent but no receipts were issued to them, the issue could only be decided on the ground that the tenants had failed to discharge the onus to prove the fact of payments.
10. ' Appellant Sultan Ahmed stated in his affidavit that he paid Rs,9,100 to the respondent in August, 1985. This statement does not help him on more than one grounds. Firstly this plea was not taken in written statement. Secondly the respondent was not confronted with this statement when he appeared in the witness-box. Thirdly the appellant Sultan Ahmed stated that respondent issued a Katcha receipt. The appellant admitted in his cross-examination that the respondent did not sign the receipt.
11. ' The appellants asserted that they deposited rent in Miscellaneous applications. It is well- established legal position that the deposit of rent after due date is of no help to the tenant. In the instant case, the appellants have not established that they deposited the rent within due date. The conclusion is that the respondent has successfully established that the appellants had committed default in the payment of rent and are liable to be evicted from the premises. c Having gone through the entire evidence on this issue, I see no valid reason to differ from the finding arrived at by the learned Controller that the appellants had committed default in payment of rent for disputed period.
12. ' Reverting to the second ground of nuisance by the respondent in his eviction application, it is to be observed that the appellants admitted in their written statements that they have stored plastic goods in the premises in question which is highly inflammable.
13. ' Clause (v) of subsection (2) of section 15 provides that the tenant has indulged in such activities as arc causing nuisance to neighbours.
14. The term 'nuisance' is incapable of exact and exhaustive definition. The word 'nuisance' is derived from French word 'Nuke' which means to injure, hurt or harm. According to Shorter Oxford Dictionary, it means 'anything injurious or obnoxious to the community or to the individual as member of it, for which some legal remedy may be found'. Liberally anything that causes annoyance or that works hurt or injury, harm or prejudice to an individual or the public or anything wrongfully done or permitted which injures or annoys another in the legitimate enjoyment of his legal rights would constitute nuisance.
15. ' In short anything done which unwarrantably affects the right of the others, endangers life or health, gives 'offence to the sense, violates the laws of decency or obstructs the comfortable and reasonable use of property may amount to nuisance.
16. I think the words creating a nuisance are capable of a wider interpretation. They include on the part of the tenants in my opinion, acts and conduct as are a nuisance to the occupants of flats and shops in a building which make it extremely inconvenient or any other tenant occupying a flat or shop to live or to do business in it in peaceful manner. I uphold the view of the learned Controller.
17. ' In the result the appeals fail and are dismissed. There will, however, be no Order as to costs. The appellants are allowed three months' time to vacate the premises subject to the condition that they shall continue to deposit rent in Court as directed by the Controller during this period.