1. ' Impugned in this appeal is an order passed by the learned IInd Senior Civil Judge and Rent Controller, Karachi (East), whereby the application under section 15 of the Sindh Rented Premises Ordinance, 1979, filed by the appellant has been dismissed vide order, dated 7th May, 1991.
2. ' The facts forming the background of this appeal is that the appellant is the landlady in respect of premises, duly reflected in her application, being L-126/1, Block 13-G, Gulshan-e-Iqbal, Karachi and the opponent is the tenant of the said premises. Initially, the disputed premises was stated to have been let out on 11 months' agreement renewable upon request at the monthly rent of Rs,750 payable in advance on 5th of every calendar month. Upon expiry of the said agreement, the respondent has acquired the status of being a statutory tenant. Grounds seeking ejectment of the respondent urged before the learned Rent Controller were default in payment of rent, personal bona fide need and impairing the utility of the disputed premises. In addition to these grounds, a ground of nuisance was also agitated before the learned Controller for seeking ejectment of the respondent. On the other hand, the respondent had, before the learned Rent Controller, denied the allegations and took a position that the premises in question being residential in nature were being utilized as premises for residential purposes and no other purpose whatsoever.
3. ' In order to substantiate the contention, the appellant before the learned trial Court had examined as many as four witnesses, namely, Syed Idris, Syed Ayub, Muhammad Mohiuddin and Taj Muhammad. On the other hand, the respondent had examined himself in addition to three other witnesses, namely, Ghulam Sarwar, Masroor Hussain and Mirza Azmatullah. The learned counsel for the appellant has contended before me that the learned Rent Controller has misread the entire evidence, which has resulted into miscarriage of justice and has consequently, arrived at a wrong conclusion. He has further contended that mere statement of the landlady would be enough to order eviction of the respondent, which has not been so done. He has contended that it has transpired in the evidence that has been brought on record, that the respondent has been managing and operating a workshop meant for repairs of vehicles, which has created nuisance, pollution and also inconvenience to the Namazis, who could only reach the mosque once they pass through the premises which is being used as a workshop. The learned counsel has further contended before me that the appellant in the cross-examination has asserted personal need and the disputed premises are, admittedly, built on 80 sq. Yds. In so far as witnesses of the appellant namely, Syed Idris and Syed Ayub are concerned, it was contended that personal need through them also stands established coupled with the element of nuisance and default. Witness Muhammad Mohiuddin was contended before me to be an independent witness. However, he had categorically stated in the cross-examination, that the respondent is not carrying on business of a kind like workshop inside or outside the premises. When this aspect was confronted to the learned counsel for the appellant, no satisfactory answer came forthwith. In so far as prosecution witness Taj Muhammad is concerned he was also canvassed before me to be an independent witness and was stated to have substantiated the contentions of the appellant before me. The learned counsel for the appellant has further contended that conversion of the premises from residential to commercial would warrant ejectment and breach of terms of tenancy would also lead to the same consequence in addition to the aspect of nuisance that has been canvassed before me.
4. ' On the other hand, the learned counsel for the respondent has submitted that personal bona fide need, as canvassed, has not been substantiated as all documents which have been produced and relied upon by the appellant do not pertain to Plot No,L-126/1, Block 13-G, Gulshan-e-Iqbal but in fact all these documents in terms of electricity bill and other documents pertain to Plot No,L-121, which is the adjoining property of the appellant. In so far as the ground of impairing the utility of the disputed premises is concerned, the learned counsel for the respondent has canvassed before me that had there been any impairment of the disputed premises then there was nothing to prevent the appellant to have sought an inspection of the premises which had neither been done before the learned Rent Controller nor any effort has been made in the said direction before this Court.
5. Meeting the allegation of default, made by the appellant, the learned counsel for the respondent has contended that up to the month of July, 1989 rent had been accepted by the appellant, whereas rent in respect of August, 1989 and thereafter, continues to be paid by the respondent in miscellaneous rent case bearing No,662 of 1989. This position of withdrawing the rent deposited by the respondent, has been confirmed by the learned counsel for the appellant, who has further stated before me that all rents, deposited uptodate have been continued to be withdrawn by them.
6. I have carefully considered the evidence of the parties, which has been read out in extenso before me, examined the record and the contentions which have been agitated before me. In the first instance, I am of the considered view that nuisance as has been urged before me, has to be a conduct on part of the respondent which could cause injury, damage, hurt, inconvenience, annoyance or discomfort to the appellant in the enjoyment of the appellant's right of person or for that matter the property of the appellant. It has to be something which could occasion unpleasant or disagreeable situation. In order to meet this explanation of nuisance, my reliance would be on the reported judgment 1982 CLC page 332, authored by my brother Naeemuddin, C.J., former late Chief Justice of this Court. I would be failing in my duty if I would not record that at the very outset I had called upon the learned counsel for the appellant before me as to whether he would be satisfied if the respondent is asked to enhance the rate of rent. The learned counsel for the appellant, upon instructions, had stated that he would not be satisfied even if the rate of rent is enhanced. Hence there was no occasion to call upon the learned counsel for the respondent as to what position would be taken by the respondent in this behalf. Keeping in view the fact that these are premises which are small and not exceeding 80 sq. Yds and persons living in these premises having a vehicle or for that matter even two vehicles, the same are bound to be parked outside the disputed premises. Such position has not been denied by any of the witnesses appearing for the parties before the learned Rent Controller, who have categorically said that occupants of 80 sq.
7. Yds. Property all over the area parks their vehicles outside their property. Such being the situation, congestion is bound to occur but at the same time such is the situation of our social fabric lie when small accommodation and large families are living in properties of a nature mentioned hereinabove. It may appear to be nuisance to any one or it may, at least, give a cause of inconvenience but magnitude of such nuisance and inconvenience cannot be of a nature to warrant eviction of the respondent as a tenant from the disputed premises. Having dealt with the aspect of default in terms that the appellant has not, in any manner, stated that there was a brake in the receipt of rent for each calendar month towards payment of rent by the respondent.
8. Whether the appellant has withdrawn such rent from the miscellaneous rent case or not is an altogether different issue, keeping in view the fact that the respondent is already out of pocket of the amount of rent for each calendar month. Keeping in view also the impugned judgment before me and the reasons assigned in refusing ejectment of the respondent before me, I see no reason for interference in the impugned judgment. Consequently, this appeal fails and First Rent Appeal No,328 of 1991 stands dismissed.