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First Rent Appeal No.651 of 1.983, decided on 13th September, 1987.

---S.21--West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.15(4), Explanation-- Appeal--Cross-objections--No provision similar to that of Explanation to S.15(4) of West Pakistan Urban Rent Restriction Ordinance, 1959 regarding cross- objections available under Sind Rented Premises Ordinance, 1979--Cross-objections in proceedings under Sind Rented Premises Ordinance, held, were not, therefore, maintainable.

1985 M L D 511 ref.

1984 C L C 2554 and 1983 C L C 2020 distinguished.

---S.15(2)(vi)--Ejectment on ground of personal requirement of premises by landlord-- Rent Controller allowing ejectment application on grounds of default in payment of rent and nuisance but dismissing same on grounds of personal requirement and conversion of premises- Landlord, in appeal filed by tenant against ejectment, urging that appeal be dismissed and that ejectment should be allowed on grounds of personal requirement and conversion of premises as well--Personal requirement of premises by landlord found to be negatived because premises in possession of tenant were similar to other portion on first floor of building which had been vacated by other tenants in January 1982 but rented out to other tenants at enhanced rent- Application for ejectment having been filed in October 1982 and similar premises having already been rented out in January 1982, no explanation coming from landlord in evidence .as to why a new need had arisen for him to occupy the premises of tenant in October 1982 when they had no such need in January 1982--Need of tenant's premises by landlord, held, was not, bona fide.

---S.15(2)(iii)(b)--Ejectment on ground of conversion of premises from residential to commercial--Landlady in her cross-examination stating that she had never seen any goods of merchandise lying anywhere in tenant's use and that she had never seen any person purchasing any goods from the tenant--Charge of change of use of house as commercial premises, held, was not, proved against tenant in circumstances.

---S.15(2)(ii)--Ejectment on ground of default in payment of rent- Agreement of tenancy proving that rent shall be paid within 15 days of each calendar month having expired in 1979 and thereafter statutory tenancy between parties having started rent could be paid by tenant within sixty days of becoming due---Rent for months in dispute proved by documentary evidence to have been remitted by tenant in time by money orders--Tenant, held, hid not, therefore, committed any default in payment of rent.

---S.15(2)(ii) read with S.2(i)--Gas charges--Tenant for a few months paying Rs.20 per month as gas charges but later on remitting Rs.10 p. m. by money orders which were received by landlord without any protest and thus landlord would be deemed to have waived any right in respect of tender of Rs.20 p.m. as gas charges--Gas charges have to be the amount payable by tenant for quantity of gas consumed and should be in proportion to consumption--Landlord having failed as to what the actual share of tenants out of bills submitted to them by the Gas Company, finding of Controller in respect of lesser payment of gas charges, held, was not correct.

---S.15(2)(v)--Ejectment on ground of nuisance--Landlord in ejectment application asserting that tenant adopted the practice of abusing them and their other family members on one pretext or, other and that tenant had said that one of the landlords was new and recent upshot and Nayadolatia--No other specific allegation as to what was further stated by tenant and what abuses were hurled nor was it explained as to how many times suck allegations were made by the tenant- Material discomfort and inconvenience caused by a neighbour to other neighbours by the use of his premises can be generally called the act of nuisance but every case would depend upon its own facts--Details and frequency of allegations as well as manner of levelling such allegations not proved to be of such a nature as could amount to an activity causing nuisance to landlord--Rent Controller, held, was not, therefore, justified in treating nuisance to have been proved against the tenant.

Gharib Nawaz for Appellant.

S. Inayat Ali for Respondents.

Dates of hearing: 27th August, 1st and 2nd September, 1987.

This appeal is directed against the ejectment order issued by IInd Senior Civil Judge and Rent Controller, Karachi, dated 31-7-1983, whereby the appellant was to be ejected on the ground of default and nuisance.

2. The relevant facts are that the appellant was the tenant of the respondents in respect of one portion on the first floor initially at Rs.300 per month, which was raised to 84.450 per month. The tenancy had started in 1978 and one of the conditions was that the gas, electricity and water charges shall be payable according to the bills. It was also one of the conditions that the rent will be payable in advance on every month of tenancy. However, the initial rent agreement expired in 1979.On 24-10-1982, the respondents filed ejectment application on the ground of default in payment of rent from July, 1982 and default in gas charges @ Rs.10 per month from 1-9-1979 till the filing of the ejectment application. Respondents also claimed personal requirement of the premises for their family. It was also alleged that abuses were hurled from the appellant to the respondents and they were humiliated. Further, ground of ejectment was that the use of the property had been converted from residential to commercial one.

3. In the written statement all the allegations were denied and it was stated that money order had been sent for the rent of July, 1982 and onwards, but was refused by landlord. It was also averred that water and gas consumption charges tentatively at fts.10 per month as the agreed and fixed water consumption charges and Rs.15 per month as the agreed and fixed gas consumption charges were to be paid, but no receipts for the same were issued by the respondents. The personal need of the respondents was denied and it was asserted that they want to make a big business out of the rent proceedings. The conduct of nuisance was also denied and it was stated that the appellant had tried to maintain a good deal of relationship. It was, however, asserted that the respondents were in search of big business and aspiring either by hook or crook to be over night amongst the twenty-three families of the country and they have become a perpetual source of nuisance to the respondents. Conversion of the premises was denied.

4. P.W.1, Muhammad Younus, P.W.2, Mst.Begum Jan, P.W.3, Muhammad Umer son of respondent No.2 and P.W.4, Mukhtar Ahmed son-in-law of the respondent No.2 filed their affidavits in support of the application. They were duly cross-examined. Shaikh Anisur Rehman, the husband and attorney of the appellant examined himself in defence. The Rent Controller allowed the application on two grounds of default and nuisance, but dismissed on the grounds of personal requirement and conversion of the premises. Hence this appeal. Cross-objections in respect of the appeal were also filed by the respondents urging that the appeal should be dismissed and further urging that the ejectment should be maintained on the ground of personal use and conversion of the premises into commercial use. Both the appeal and cross-objections are being disposed of together after hearing the two learned counsel on opposite sides.

5. Mr. Gharib Nawaz raised a preliminary objection that cross -objections could not be filed under Sind Rented Premises Ordinance, 1979 and if the respondents felt aggrieved against any part of the judgment then they should have filed an appeal against the same. He relied upon 1985 M L D 511, where it was held by the learned Single Judge of this Court that right to file cross-objections is akin to a right of appeals and that cross-objections are incompetent in proceedings under S.R.P:O. 1979. The learned Single Judge came to this conclusion after comparing the provisions S.R.P.O. 1979, with the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959. He was of the view that cross-objections were competent under W.P.U.R.R.O. 1959 in view of the explanation of section 15(4) of the said Ordinance, but no similar provision being available under the present Ordinance, therefore, the cross-objections could not be entertained.

Syed Inayat Ali submitted that in 1984 C L C 2554 decided by me, I had taken up the position that the landlord could urge the point of default in appeal filed by the tenant without filing cross -objections. However, that case was decided under W.P.U.R.R.O., 1959. Again in another case reported in 1983 C L C 2020, the same learned Judge, who had decided the case reported in 1985 M L D 511, observed that the landlord could support an ejectment order on the ground of personal requirement even without filing cross-objections and further observed that such being the position the maintainability of the cross-objections was merely of academic value. This was again a case decided under W.P.U.R.R., 1959. I agree with the view taken by my brother Judge in 1985 M L D 511 for the reasons given by him in his judgment and, therefore, cross-objections are not found to be maintainable.

6. However, the question of personal requirement was heard by me and, therefore, I would like to observe that the personal requirement of the premises in possession of the appellant had been negatived because the premises in possession of the appellant are similar to the other portion on the first floor of the building. In cross-examination of Muhammad Younus, respondent No. 1, it was clearly brought out that the other portion on first floor had been vacated by the other tenants in January, 1982, but the same was rented out to another tenant at the enhanced rent of Rs.1,000 per month, which was originally Rs.500. Muhammad Younus had also admitted that Rs.30,000 had been taken as deposit from the new tenant. The application for ejectment had been filed by the respondents in October, 1982 and since they had already let out similar premises in January, 1982, it was necessary for them to explain as to why a new need had arisen for them to occupy the premises of the appellant in October, 1982 when they had no such need in January, 1982. Unfortunately no such explanation has come from the respondents in evidence.

Before me Syed Inayat Ali put a question to his client about this change in the need and his client told him that his sister had come in the premises after the other portion had been let out to the other tenants in 1982 January. But Mr. Gharib Nawaz pointed that the husband of that sister, namely, Mukhtar Ahmed had clearly admitted in cross made in 1983 that he had been residing in the premises since last three years, which would make his occupation to be from 1980.

7. This being the position the need of the appellant's premises by the respondents appears to be not bona fide when the similar premises which were available to the respondents in January, 1982 have not been made use of by them and have been let out to the other tenants. If the respondents had in fact, needed the premises because of the members of their family then they would have grabbed upon this part, but they did not do so and hence personal requirement was rightly negatived by the Rent Controller.

Similarly I find from the cross-examination of Begum Jan that the conversion of the premises from residential into non-residential is not proved. She had admitted that she had never seen any goods of marchandise lying anywhere in the opponent's house. She had further stated that she had never seen any person purchasing any goods from the opponent. This being the position and the premises of the appellant being first floor premises, it appears to me that the charge of change of use of house as commercial premises was not proved against him.

8. The ejectment on the ground of default is based in the finding that the appellant had failed to pay the rent of June, July, August and September, 1982 within the stipulated time of 15th day of each calendar month. This finding is really based on a misconception because the agreement of tenancy dated 15-7-1978 was for a period of 12 months and it came to an end on 15th June, 1979. And, therefore, the condition of this agreement that the rent shall be paid in advance before 15th of each calendar month, expired in 1979. Thereafter, the statutory tenancy started between the parties and hence the rent could be paid by the appellant within 60 days of the date when the rent became due. The rent of July, 1982 became due on 1st of August, 1982 and, therefore, it could be paid by 29th of September, 1982. The same was in fact, tendered by M.O. on 25-8-1982 and, therefore, the tender of rent was in time. Similarly, rent of September was tendered on 25-10-1982 and, therefore, it was again in time. The rent for the month of September could similarly be paid by 29th of November, 1982, but the ejectment application had been filed in October, 1982 and, therefore, by that time the rent for September was not actually due and hence the application for ejectment was premature. In any case, the rent of August, 1982 was tendered by money order on 14-9-1982 as shown in Annexures 0/21 and 0/22 filed alongwith this appeal and admitted on record by granting C.M.A. 529/1985 on 9-5-1985. The counsel for the respondents had stated that he did not wish to lead any evidence in rebuttal and, therefore, Annexures 0/21 and 0/22 are clear proof of sending of money order by the appellant. In the cross-examination of Younus, respondent No.1, it had been clearly brought out that he had refused to accept the rent from July, 1982 till the date of his examination. It is, therefore, clear to me that the appellant had submitted the rent of July, 1982 to September, 1982 in time and, therefore, he had not committed any default in respect of the same.

9. Again in respect of gas charges it is sufficient to state that initially at the time of the start of tenancy between the parties it was stipulated that the appellant will pay the electricity, gas and water charges according to the bills to the concerned authorities. But later on the appellant started paying gas charges directly to the respondents. In application of ejectment it was stated that gas charges were paid at Rs.20 upto August, 1979 and, thereafter only Rs.10 were paid and hence there was less payment of Rs.10 per month from September, 1979 upto 31-9-1982 amounting to Rs.370. In the written statement, however, it was stated in para-1 that tentatively Rs.15 per month was agreed and fixed as gas consumption charges and in para-2 it was stated that the entire water and gas consumption charges, tentatively agreed and fixed, had been paid upto 31st June, 1982. It is correct that from June, 1979 to August, 1979, the appellant paid Rs.20 per month as gas charges by money order to the respondent and, therefore, they should have continued to pay the same. But from September, 1979 to June, 1982 the appellant remitted Rs.10 per month as gas charges by money order and the same were received by the respondent without any protest whatsoever and, therefore, the respondents are deemed to have waived any right in respect of tender of Rs.20 per month as gas charges. However, what is more important according to my point of view is that the rent is defined in section 2(i) of the Sind Rented Premises Ordinance, 1979 as including water charges, electricity charges and such other charges, which are payable by the tenant but are unpaid. Therefore, the question really is as to what are the gas charges payable by the appellant. Apparently, the gas charges should be that amount which is payable by the appellant for the quantity of gas used by him and, therefore, they should be in proportion to the consumption of gas. In the present case this is what had been initially agreed between the parties but then thereafter from January, 1979, the arrangement changed and Rs.20 per month was remitted but it was tentative and it is reasonable to accept that the gas charges will be according to the consumption of gas. The cross-examination of Muhammad Younus shows that he never protested when Rs.10 per month were remitted to him as gas charges by money order by the appellant and further that he did not give ever any account of the bills which are received from the gas company, which had to be shared by the appellant as the gas bills, were common to the appellant and respondents. This being the position, it is difficult to come to the conclusion that there has been a default in the payment of gas charges payable by the tenant. I am quite clear in my mind that a landlord cannot make any profit from the tenant in respect of the gas or electricity charges, and, therefore, it is only the share for consumption of charges of gas consumed by the tenant that can be claimed by the landlord. In the present case, the respondents have failed to prove as to what was the actual share of the appellant out of the bills submitted to them by the gas company and, therefore, the finding in respect of lesser payment of gas charges is not correct.

Consequently, the finding of default in respect of rent and gas charges is set aside.

10. The ejectment was also granted on the basis of nuisance. In para-8 of ejectment application, it was asserted that the tenant adopted the practice of abusing the applicants and other family members on one pretext or the other and accused the applicant on false allegations.

11. The appellant denied the allegation of misconduct and denied the abuses to the family members of respondent. It was asserted that the respondents were in, search of big business and aspiring either by hook or crook to be over night amongst twenty-three families of the Country. In affidavit of Muhammad Younus, it was stated that the appellant had said that Muhammad Younus was new and recent upshot and Nayadolatia. There is no other specific allegation as to what was further stated by the appellant and what abuses were hurled. Then again it was not explained as to how many times such allegations were made by the appellant. He was cross-examined on this aspect, he denied that the appellant ever abused or misbehaved with him or with his mother. Even Begum Jan in her affidavit only made a specific allegation that she or Muhammad Younus were stated that a practice of abusing was adopted by the appellant, but the abuses were never detailed nor the specific instances of the time, when such abuses or allegations were heard, was disclosed in the affidavit. She denied in cross-examination that the appellant was not mischievous to them in any way. It appears to me that the charge of nuisance had been made against the appellant on too flimsy basis. It is probably right that the appellant had called the respondents as Nayadolatia, but this is far from the proof of such activities as are abusing nuisance to the neighbours. It is correctly suggested by Mr. Inayat Ali that the respondents are also the neighbours of the appellant and, therefore, if the activities of the appellant were causing nuisance to the respondents then the same could be covered by the expression used in section 15(2)(v) of S.R.P.O. 1979. But it appears to me that the expression of Nayadolatia used by the appellant has not been asserted by the respondents to have been repeated so many times 'and so often as to amount to such activities, which would be causing nuisance to the neighbours. In fact, it is some material discomfort and inconvenience caused by a neighbour to the other neighbours by the use of his premises, which can generally be called the act of nuisance, but every case would depend upon its own facts. It would be possible that in certain circumstances even the pin-pricho and cynical language used by the neighbour against his neighbours could amount to a nuisance, but before it could be said to be a nuisance, it has to be positively asserted and proved that the same had been repeated a number of times on a number of occasions and in the presence of so many people that the life of the respondents had become miserable. However, in the present case before me those details and the frequency of the allegations as well as manner of levelling of those allegations has not been proved to be of such a nature as it could amount to an activity causing nuisance to the respondents. I am, therefore, of the view that the Rent Controller was not justified in treating the nuisance as having been proved against the appellant. Consequently, this appeal is allowed and the order of ejectment is set aside.

S.Q/H-48/K Appeal allowed.

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