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First Rent Appeal No. 828 of 1980, heard on 15th May, 1984.

----S. 13(2)(i), (iv)--Ejectment--Default in payment of rent and nuisance by tenant--Default not established--Actual commission of acts of nuisance nut being proved by production of concerned person or competent eye witnesses--Ejectment refused--Order maintained in first appeal.

P L D 1982 S C 453 ref.

Faruoq Naik for Appellant.

M. Umer Qureshi for Respondent.

Dates of hearing: 13th, 14th and 15th May, 1984.

This is an appeal directed against the order of Vth Rent Control ler, Karachi, dated 2ti-8-1980 whereby the application for ejectment filed by the appellant was rejected. It is an admitted position that the appellant is the landlady and the respondent is the tenant of the premises in dispute. Application for ejectment had been filed oil the grounds of bona fide personal use, wilful default in the payment of rent and on account of acts of nuisance having been committed by the respondent and his family. Evidence was led oil behalf of both side. The Rent Controller decided all the issues against the appellant.

The learned counsel for the appellant has attacked tile findings in respect of default not having been committed and nuisance haying nut been proved. The learned counsel however, has not attacked the finding in respect of personal-need not- having-been-proved.

3. Counsel contended that the appellant had purchase property on 7-9-1977 rind had issued notice under section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959 intimating tile respondent about transfer of the property and had demanded rent from the respondent. The same was acknowledged by the respondent by letter dated 28-3-1978, and it was asserted that since the previous landlord had refused to accept the rent, therefore, the respondent had deposited the same in Miscellaneous Rent Case No. 2276 of 1977 for seven months. It was asserted it) that letter that rent of March, 1978 had been sent fly Money Order. The receipts of rent deposited in tile above cited miscellaneous case do show that the rent at the rate of Rb.275 per month had been deposited by the respondent, for seven months. It is also an admitted position that Money Order of Rs.275 had been sent by the respondent to the appellant in March, 1978 but the same was refused by the appellant. Rs.275 was deposited in favour of tile appellant by tile respondent in another miscellaneous rent case on 11-5--1978 and then again lts.550 had been deposited on 27-7-1978 in Miscellaneous Rent Case No. 2144 of 1978 then on 10-9-1978 Rs.550 were deposited land and again on 10-10-1978 Rs.'275 were deposited later on Rs. 275 were deposited on 25-10-1978. The application for ejectment had been filed on 13-8-1978 and it was claimed that the respondent was entitled to rent from 7-9-1977. None of the receipt, and Money Order Coupons, which had been exhibited in Court, show as to for what particular mouth tile rent had been deposited and, therefore, the net position remains that a sum of Rs.3,850 had been deposited by the respondent in miscellaneous rent proceedings either in the name of previous landlord or to the name of the present appellant. In this respect it would be useful to refer to rent account produced by the two parties. The appellant demanded Rs.3,575 on 28-10-1978 from September, 1977 to September, 1978 (13 months). 'the opponent/ respondent's rent account of the same date showed that he had deposited Rs.3,850 for 14 months front September, 1977 to October, 1978 in tile two rent cases. There is no evidence forthcoming from the previous landlord as to whether there was any amount due to him in this respect and since both the parties are claiming rent and to be deposited from September, 1977, therefore, it is obvious that the rent which was due to appellant has been deposited by the respondent.

4. In this respect the submission made by the appellant's counsel was that the amount of rent deposited by the respondent in favour of the previous landlord should trot be considered as a payment of rent due because section 13-A postulates that the tenant shall pay the rent due to the new landlady within 30 days of the receipt of notice under section 13-A. The submission appears to be attractive but since the respondent had deposited the rent in favour of the previous landlord unto the month of February, 1978 only and upto that time no notice under section 13-A had been received by the respondent from the present appellant, therefore, the obvious conclusion is that the respondent had deposited rent due in favour of the previous landlord. If I have to accept the submission of the appellant then the tenant shall have to be burdened with the double responsibility of first having deposited the rent bona fide in the nacre of the previous landlord and then again paying the rent to the present landlady. At the mint it could be said that it would be inconvenience to tile appellant to withdraw tire rent deposited in favour of the previous landlord but in this respect it is sufficient to point out that apart from the inconvenience involved there would have been no real difficulty in this respect. Because in paragraph 5 of the reply made by the respondent on 28-3-1978 it has been stated that the appellant was advised to collect the rent from the Court concerned. If the appellant had made such a request then it is clear that respondent would not have objected to the same. Even now it tile appellant makes that request and wants no objection from the respondent the respondent's counsel has assumed us that respondent will show their willingness to help the appellant in this regard. Default could not therefore tie found to be established.

5. Counsel for the appellant has submitted that tile nuisance had been proved in tile case in as much as the copy of report made by Mst.Zakia Rashid against tile wife of tile respondent had been produced which showed that Mst. Zakia had been assaulted by the wife, of respondent. Even a prescription from the Karachi Municipal Corporation dispensary has been produced showing that Mst.Zakia was given prescription for an assault. But the difficulty in this case is that Mst. Zakia who is the person who was allegedly assaulted by the wife of the respondent had not been examined in this case and, therefore, the next result is that there is neither statement of the person who had been actually assaulted or the statement of any person who was a witness to that assault nor is there any statement on record of the doctor who had examined Mst. Zakia. Mr. Farooq submitted that F.I.R. had been allowed to be produced and even prescription had been produced and, therefore, they should be deemed to have been admitted by the appellant. I do not find any justification for this argument because the production of document is quite different from it's proof. In any case proof of assault had to be given by a person who was either the subject of the assault or a witness of that assault. The learned counsel relied upon section 120 of the Evidence Act for the submission that the husband and wife are competent witnesses to a civil or criminal trial. There is no doubt about that proposition because this is the law of the country but mere competency of a person being a witness in a case in respect of wife or husband does not grant that person who has not seen particular incident could give statement oil behalf of the person who was the subject of the assault. Counsel had submitted that the appellant's husband M.H. Rashid who had given evidence in this case was present at the time of assault on 10th March. However, this does not seem to be correct because Exh.10, which is a letter sent by M.H. Rashid himself to D.C. West shows that M.H. Rashid was not present at the time of alleged assault and he came later on.

6. It is necessary in every case of nuisance relied upon by the parties to prove .the actual commission of acts of nuisance by production on witnesses who have seen that nuisance. Until and unless that is done nuisance acts cannot be found to have been proved.

7. Mr. Farooq has relied upon P L D 198L S C 453 for the proposition that man handling of landlord by a tenant constitutes great nuisance. I respectfully agree and if the act if nuisance alleged by the appellant had in fact been proved, according to the requirements of tile proof, I would not hesitate in accepting the appeal oil the ground of nuisance. Consequently this appeal is found to be without merit and is hereby dismissed.

M.I Appeal dismissed.

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