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First Rent Appeal No. 800 of 1982, decided on 6th May, 1984.

---S. 13(2)(iv)--Sind Rented Premises Ordinance (XVII of 1979), S.21- Ejectment--Plea of public nuisance against sons of tenant--No specific allegation made to be established through evidence--Allegations general and vague in nature--Registration of certain cases against sons of tenant at police station but nothing on record to show that evidence was recorded or any conviction took place against any of sons of tenant--Mere letter from Police Officer referring to registration of cases against them, held, not sufficient to establish case of nuisance under S. 13(2)(iv) of West Pakistan Urban Rent Restriction Ordinance, 1959--Plea of nuisance not sustained.

---S. 13--Sind Rented Premises Ordinance (XVII of 1979), S. 21- Ejectment--Personal requirement--Landlord failing to give exact accommodation in his occupation and intentionally suppressing information in this regard--Ejectment application on ground of personal requirement, held, liable to be set aside.

---S. 13(2)(i)--Sind Rented Premises Ordinance (XVII of 1979), S.21- Ejectment-- Default in payment of rent--No case made out by landlord on merits on question of default--No agreement of lease existing between parties--Ejectment application filed when 60 days not expired from period for which rent became due--Tenant held, not a defaulter--Order of ejectment set aside.

Farooq H. Naek for Appellant.

Iftikhar Javed for Respondent.

Dates of hearing: 12th February; 18th March and 6th May, 1984.

Ejectment Application No. 5000 of 1978 was filed on 25-10-1978 by the respondent/ landlord for the eviction of the appellant/ tenant from the premises in question, a portion on ground floor of the house on Plot No. 123-L, Block 2, P.E.C.H. Society, Karachi, on the following grounds:---

(i) The appellant is a habitual defaulter and has not paid rent since July, 1978, amounting to Rs. 1,705 upto 31-10-1978.

(ii) The respondent was in occupation of the first floor of the house in question and the accommodation in his occupation was insufficient and inadequate to meet the increasing requirements of the respondent's family members, 10 in all at that time, and that his children were going to get married in the near future. Two-roomed accommodation in occupation of the appellant was required on the ground of personal requirement of the respondent and his family.

(iii) Appellant's three sons had become a constant public nuisance on account of their acts, behaviour, attitude and bad habits which were harmful and injurious for the youngsters of the locality.

The application was resisted by the appellant, who filed her written statement. The respondent apart from himself examined two witnesses, namely, Abdur Rahim and Mumtaz. The appellant examined herself. By the impugned order dated 31-5-1982, the ejectment application was allowed by the learned Rent Controller on the ground of personal requirement and nuisance, but the ground of default was rejected. Being aggrieved, the appellant/ tenant has filed the present first rent appeal under section 21 of the 1979 Sind Rented Premises Ordinance. I have heard at length the arguments of Mr. Farooq H. Naek, learned counsel for the respondent.

2. On the question of public nuisance, it has been contended by the learned counsel for the appellant that the evidence led on behalf of the respondent had not established that the appellant had been guilty of such acts and conducts as are nuisance to the occupants of the building in the neighbourhood as required by section 13(2)(iv) of the 1959 Rent Ordinance. The evidence of the respondent (paragraph 9 of his affidavit-in-evidence dated 23-I 1980) is that the appellant's three sons are "Habitual criminals and constant public nuisance for the locality. They have made the lives of the surrounding inhabitants miserable by their unwanted acts, behaviour, attitude and bad habits. They are harmful and injurious for the youngsters of the locality". The respondent also produced a letter dated 20-1-1980 from the S.H.O. Ferozeabad Police Station addressed to the respondent, in which it was mentioned that some cases are pending against the sons of the appellant. Then there is the evidence of the two witnesses on behalf of the respondent (Abdur Rahim and Mumtaz) to the effect that the appellant and her family members are a constant source of nuisance for the Muhallah people and that their presence in Muhallah is injurious for the character of other innocent children of the locality. On the basis of this evidence, issue of nuisance was decided in favour of the respondent /landlord. In my view, this evidence is not sufficient to establish a case of nuisance under section 13(2) (iv) of the 1959 Rent Ordinance. The allegation against the sons of the appellant by the respondent as well as by the two other witnesses are general and vague in character. Specific allegations should have been made and it should also have been established through evidence that the specific acts of the sons of the appellant were a cause of nuisance directly to the respondent or his family members or the occupants of the buildings in the neighbourhood. Such specific evidence has not come on record. Not a single specific instance has been cited in the evidence led on behalf of the respondent against the sons of the appellant. As observed earlier, the allegations are general and vague. Then the letter of the S.H.O. Ferozeabad Police Station only refers to registration of certain cases against the sons of the appellant. Copies of the F.I.Rs. in such cases have not been produced. It has not been brought on record as to who were the complainants in such cases. It has not come on record that in any of such cases any evidence was recorded or any conviction took place against any of the sons of the appellant. Mere production of aforesaid letter of S.H.0. Ferozeabad Police Station in my view, could not establish a case of nuisance under section 13(2)(iv) of the 1959 Rent Ordinance. The finding of the learned Rent Controller on the issue of nuisance cannot be substained.

3. In paragraph 4 of the ejectment application the respondent stated that the accommodation in occupation of the respondent on the first floor of the house in question was insufficient and inadequate for the needs of the respondent's family. A clear impression has been given that in the entire house in question only the first floor was in occupation of the respondent. In paragraph 2 of his affidavit-in-evidence dated 23-1-1980, the respondent has stated that he was in possession of a portion of the said property consisting of 5 rooms only which was inadequate and insufficient for his accommodation and for the use and occupation of family members. However, in cross-examination he stated that there were two rooms on the second floor and two other portions on the ground floor which had not been let out to any tenant and therefore they were also in occupation of the respondent and his family members. In the evidence of the appellant it was stated that the premises in occupation of the appellant were not required in good faith by the respondent. It was stated that the house had three floors and the entire first and second floors were in occupation of the respondent and his family members; that first floor had 6 rooms, 3 bath-rooms, kitchen, store, verandah and other amenities; that second floor had also 6 rooms with other amenities; that the ground floor had 4 portions, out of which one portion consisting of 2 rooms was in appellant's occupation, and out of the other three portions on the ground floor, one portion was with one of the sons of the respondent, whereas the other two portions on the ground floor were lying vacant. As far as the accommo dation is concerned, the evidence given by the appellant was not subject to any serious or material cross-examination. On the contrary, from the cross-examination it has come on record that the respondent had 16 rooms in his occupation. There is no cross-examination on the question that there are 6 rooms on the first floor and 6 rooms on the second floor and there are three other portions on the ground floor, out of which one is in occupation of the respondent's son and other two portions are lying vacant. It is apparent from the evidence on record that in the ejectment application the respondent did not give the exact accommodation in his occupation, suppressed the fact that he was occupying the entire second floor and that he was also in possession of three portions on the ground floor, out of which two were lying vacant. In his affidavit-in-evidence also the respondent did not correctly disclose the exact area in his occupation. It was required of the respondent to disclose the exact area in his occupation in his ejectment application or at least in his examination-in-chief. Relevant facts in this connection were intentionally suppressed by the respondent. In these circumstances, the ejectment application should not have been allowed on the ground of personal requirement. The order of the Rent Controller is accordingly liable to be set aside.

4. As noted earlier, the question of default was decided in favour of the appellant and against the respondent. It was held by the learned Rent Controller that the appellant was not a defaulter. Learned counsel for the respondent raised the plea that the decision of the Rent Controller on the ground of default was wrongly decided in favour of the appellant. It was submitted by Mr. Iftikhar Javed, learned counsel for the respondent, that although no cross-objection or cross-appeal was filed by the respondent under section 21(3) of the 1979 Rent Ordinance, this Court has jurisdiction and is competent to reverse the finding of the learned Rent Controller on the issue of default and can allow the ejectment application on the ground that a default had been committed and the Rent Controller had not correctly decided the issue relating to default. On the other hand, Mr. Farooq H. Naek, learned counsel for the appellant, argued that as no appeal had been filed by the respondent against the finding of the Rent Controller rejecting the ground of defendant, the respondent is not competent to raise this question in this appeal filed by the appellant. I have heard the learned counsel on merits also on the question of default. However, I find that it is not necessary to decide this question in this appeal. I am of the view that no case has been made out on merits by the respondent to reverse the finding of the Rent Controller on the question of default.

As observed earlier, the ejectment case was filed on 25-10-1978 inter alia alleging that rent had not been paid from July, 1978 to October, 1978. Admittedly there is no agreement in writing between the parties and as such a case of default could have been made out if it was established that the rent had not been paid by the appellant within 60 days from the period for which the rent is due under section 13(2)(i) of the 1959 Rent Ordinance. As the ejectment application had been filed on 25-10-1978, 60 days had not expired as far as the rent of August and September, 1978 is concerned. At the most there could have been default of 60 days in so far as the rent of July, 1978 is concerned. Here reference may be made to Annexure A-7 to the affidavit-in-evidence of the respondent. This is a copy of the letter dated 8-10-1978 written by the respondent to the appellant. In this letter it was stated that as on 31-7-1978 an amount of Rs. 355 was due, which means that a part of the rent of July, 1978, had already been received by the respondent as admitted monthly rent is Rs. 450. After adding the rent for three more months i.e. August, September and October, 1978, according to Annexure A-7, the amount due from the appellant to the respondent, as on 31-10-1978, was Rs. 1,705. By the said letter dated 8-10-1978, the respondent asked the appellant to pay the amount due at the earliest and to vacate the premises, as the premises were required for respondent's use. However, instead of waiting for sometime, during which the amount could have been paid by the appellant as was desired by the respondent by his letter dated 8-10-1978, the respondent went ahead and filed the ejectment application on 25-10-1978. As a part of the rent of July, 1978, had already been paid by the appellant to the respondent and as the respondent himself had asked the appellant to make payment of the amount at the earliest convenience of the appellant and as by letter dated 8-10-1978, the respondent had calculated the rent due as on 31-10-1978 and therefore, the respondent himself expected the appellant to clear the dues by 31-10-1978, whereas the ejectment application was filed on 25-10-1978, in my view, this is not a case where the appellant could have been held to be a defaulter under section 13(2)(i) of the 1959 Rent Ordinance for which the appellant could have been ordered to be ejected. In the circumstances, I am not inclined to reverse the finding of the Rent Controller on the ground of default.

5. As a result, First Rent Appeal No. 800 of 1982 is allowed and the ejectment order dated 31-5-1982 passed by the Rent Controller is set aside and the ejectment application filed by the respondent stands dismissed.

There will be no order as to costs.

M. Y. H. Appeal allowed.

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