1. ' This Revision under section 115, C.P.C. Is directed against the judgment and decree dated 3-12- 1986 passed by the then learned First Additional District Judge, Karachi, East, in Civil Appeal No,143 of 1979, whereby he affirmed the judgment and decree dated 17-2-1979 and 11-4-1979 respectively passed by learned Civil Judge, Karachi, in Suit No,396 of 1972. The facts forming background of this revision are as follows.
2. ' Respondent Ibadat Yar Khan filed abovementioned suit on 7-3-1972 against the applicants for recovery of damages and injunction. The case of respondent, as set up in the plaint, is that he is the owner of Alfalah Building, situate on Plot No,11-C, Commercial Area, Muhammad All Cooperative Society, Karachi, and applicants are tenant in respect of two shops on ground floor and a portion of Mezzanine floor in said building on monthly rent of Rs,700 payable by the 5th of each running month in advance under the terms and conditions embodied in the agreement of lease dated 18- 9-1970 and in respect of the premises specifically described in said agreement of lease. The applicants are running a Cone Ice Cream and Snack Bar under the name "Spinzer Snack Bar and Eldee Cone Ice Cream" in the shops let out to them. It is alleged that applicants have trespassed into the open space and have converted the common toilet as their pantry by breaking the W.C.
3. Basin and the flush tank and have rendered this toilet completely unserviceable. They are using open courtyard partly as a junk yard, where milk and beverages bottles and cases are usually found scattered. Some portion of the yard as well as staircase is being used for peeling vegetables.
4. They are not keeping this portion clean and as such it has become breeding place for cockroaches, flies and other insects. The employees of applicants are causing nuisance to the other residents of the building by their conduct. It is said that two residential tenants on account of this nuisance, have left their flats, which remained vacant for several months and ultimately had to be let out at reduced rents. It is said that applicants have committed breach of a tenancy agreement and have caused nuisance to other tenants and neighbours. Hence, the suit was filed for the following reliefs:- "(1) A decree for Rs,2,500 on account of charges for wrongful use and occupation of the plaintiff's property, for Rs,1,000 as damages and charges for consumption of water.
(2) Future charges at Rs,15 per day for unauthorised and wrongful use of open space and Rs,3 per day for similar use of toilet and Rs,150 per month for extra water consumed from date of suit till vacation of the said unauthorised use and Rs,100 per month for reduced rent of two flats.
(3) A permanent injunction restraining the defendants, their servants, employees, workmen and agents or any one for or on behalf of the defendants from trespassing into and using the open courtyard at the back of the demised premises and for using the toilet and/or other passages of the building other than those specifically let out to the defendants and causing, creating and/or making any nuisance of whatever kind in the said premises and/or causing any inconvenience to the other tenants/occupants of this building by creating insanitary or unhygienic conditions in the said building or in any part thereof.
(4) Any other relief or reliefs which this Hon'ble Court may deem fit and proper under the circumstances of this case and award costs of this suit."
5. ' The applicants resisted the claim of respondent and denied all the allegations. According to them, there is no agreement for mesne profits in the agreement of lease, and they have not trespassed in the open courtyard, which is a passage to the toilet.
6. ' Following consent issues were framed by learned trial Judge:--
(1) Whether the common use of the open courtyard attached at the back of the two shops with common toilet included in the rented premises?
(2) Whether the defendants have caused any damage to the W.C. And flush tanks?
(3) Whether the defendants have caused any nuisance as alleged?
(4) Whether the plaintiff is entitled to mesne profits as claimed in the suit?
(5) Whether the defendants have committed any breach of the agreement as alleged?
(6) What damages, if any, has the plaintiff suffered?
(7) What should the decree be?
7. ' At trial, the respondent examined Dr. Arif Alvi, S. Mossaid Ali Hashmi, Shamsuddin Khalid and himself. The applicants examined Hussain Ahmed, Chaudry Altaf Hussain, Abdul Majid, Aslam and Muhammad Riaz Ahmed.
8. ' For issue No,1, learned Civil Judge decided that the premises let out to applicants compromised of two shops and Mezzanine floor only. Issues Nos.2 to 5 were decided against applicants. For issues Nos. 6 and 7, she gave the findings that respondent had suffered losses. Consequently she decreed the suit as prayed with costs.
9. ' Learned First Additional District Judge, Karachi, East, by impugned judgment upheld the findings of learned trial Judge.
10. ' Mr. Mohsin Tayabally, learned counsel for applicants during the course of arguments, confined his submissions on the point of damages only, and did not challenge the findings recorded by two Courts below on other points. He argued that rent of the disputed premises was Rs,700 p.m. Only, and looking to said amount the quantum of damages is abnormally excessive. He also contended that water charges, at the rate of Rs,150 p.m., have been awarded without any evidence. He submitted that the matter be remanded back to lower Court for determining quantum of damages afresh in accordance with the settled principles of law. As against this, learned counsel for respondent submitted that concurrent findings of two Courts below in revision cannot be challenged, particularly when it is not established that two Courts below have exercised a jurisdiction not vested in them, or failed to exercise a jurisdiction so vested, or acted in the exercise of their jurisdiction illegally or with material irregularity.
11. From the record, it is evident that both the Courts below had jurisdiction in the matter and they had correctly exercised jurisdiction, which was vested in them. Learned counsel for applicants submitted that the point of damages has not been discussed at all by the two Courts below, and only this much has been stated that respondent is entitled to damages. According to learned counsel by doing so the two Courts below acted illegally and committed material irregularity. The contention is not sound and must fail. Learned lower Courts have first discussed all the points involved in the issues and then recorded the findings of damages. So it cannot be said that there is no discussion. On the contrary, the points in vowed in the issues have been discussed at length.
12. Besides, the finding of fact is not open to revision unless it is shown to be not based on evidence or suffering from non-reading or misreading of material evidence. On this point reference can be made to the case reported in 1992 SCM R 786, Jan Pari v. Muhammad Abdullah. It is not disputed that applicants had caused nuisance, and nor probably it could be disputed for the reason that in the eviction proceedings between the parties, the matter, as reported in PLD 1991 SC 645 Messrs Asad Brothers v. Ibadat Yar Khan had gone up to Supreme Court, where the Hon'ble Supreme Court upheld the finding that nuisance was caused by the applicants. The contention of learned counsel for applicants that quantum of damages, looking to the rent of the premises, seems to be excessive is without any substance. There is always a difference between authorised and unauthorised use of the premises and in case of latter the amount of compensation/damages invariably is much more than for the authorised use. The measure of damages in contract and nuisance cannot be alike. In contract the plaintiff is entitled to recover damages for the loss of his bargain, and in case of unauthorised possession and nuisance even exemplary damages can be awarded. Learned Civil Judge in the last para. Of the judgment dated 17-2-1979 observed that in her view the damages claimed by respondent were less than actually for what he was entitled. The observation is relevant for the reason that nuisance, besides causing physical damage to the property, also causes annoyance, inconvenience, discomfort and even illness under certain circumstances. Under such circumstances, the occupant of the premises would also be entitled to damages for discomfort, anxiety and distress the suffered.
13. ' In consequence, I do not find any merit in this revision and the same is dismissed with cost.