Find a Lawyer

First Rent Appeal No. 681 of 1984, decided on 2nd February, 1987.

‑‑‑Ss. 15(2)(ii) & 21(1)‑‑Eviction of tenant‑‑Default in payment of rent‑‑Proof‑‑Expiry of tenancy agreement‑‑Position of security deposits lying with the landlord‑‑Whether adjustable towards rent due‑‑Security deposits more than amount of alleged default, which was refundable at time of expiry of tenancy agreement was still lying with landlord even after expiry of said tenure of agreement‑‑After expiry of tenancy agreement, relations between parties being governed purely by statute‑‑Amount of security deposit which was not refunded to tenant after expiry of tenancy agreement, held, could have been adjusted against alleged amount of default when statutory tenancy started after expiry of such agreement‑‑Default if any on part of tenant, being highly of technical nature, Rent Controller should have exercised his discretion in favour of tenant.

P L D 1980 SC 298ref.

‑‑‑S. 15(2)(v)‑‑Nuisance to neighbours‑‑Proof‑‑Allegations made by landlord to the effect that tenant who cooked food for marriage parties used wood as fuel and smoke emitted thereby was polluting atmosphere in vicinity and was becoming a source of nuisance for neighbours having not been supported by landlord by any other witness of locality‑‑Mere solitary statement of landlord on that point, held, could not be regarded as sufficient for establishment of case nuisance against tenant in circumstances.

Hassan Asghar Rizvi for Appellant.

Sultan Ahmed for Respondent.

Date of hearing: 15th January, 1987.

The appellant is the respondent's tenant in respect of a portion of house No.S‑C‑4/27 Nazimabad, Karachi on a monthly rent of Rs.500/‑. There was a tenancy agreement between the parties which expired on 30‑4‑1978 whereafter no other agreement was executed and the relationship between the parties was thereafter governed by the relevant law applicable to them.

In August, 1981 the respondent filed an application before the learned Rent Controller No.XVIII at Karachi, seeking the appellant's eviction from the demised premises on the grounds of default, personal need, conversion of premises to commercial use and nuisance. All the four grounds found favour with the learned Controller, who ordered the appellant's ejectment from the demised premises within four months from passing of the Order.

During the pendency of this appeal the building wherein the demised premises are situate was transferred by the respondent by a registered sale deed to one Mst. Shakila Riaz. However, the latter has executed a Power of Attorney in favour of the respondent authorising her to manage the property and receive rent from the appellant and also to pursue this rent appeal before this Court. Be that as it may, but under the circumstances the learned counsel for the respondent very candidly conceded that the grounds of personal need and conversion of the premises to commercial use are no more available to the respondent. However, the contention of Mr. Hassan Asghar Rizvi, learned counsel for the appellant in respect of the allegations in regard to default has been that at the most according to the admitted facts, the appellant had only failed to pay rent to the respondent in respect of August, 1981 if grace period of sixty days as provided in Section 15 of the Sind Rented Premises Ordinance is allowed to him, as all the rent due was deposited by the appellant in the Court on 20‑11‑1980. It has been further argued that admittedly the tenancy agreement between the parties has expired on 30‑4‑1978 and at that time Rs.3,000/‑ were lying in security deposit with the respondent which had become refundable to the appellant after expiry of such agreement. In view of such circumstances, the argument of Mr. Rizvi was that since the time when the alleged default is said to have been committed by the appellant, the respondent was indebted to the appellant in the aforesaid amount of Rs.3,000/‑ which was much more than the total rent due against the appellant therefore the same could have been adjusted against the security deposited by the respondent. It was further argued in the alternative that in any case, the default if any was highly of a technical nature and in view of the circumstances stated above the learned Controller should have exercised his discretion in favour of the appellant. Reliance in this respect has been placed on Muhammad Yousuf's case reported in P.L.D. 1980 S.C. 298.

It may be pointed out that the facts of the Supreme Court case are not materially different from the present one as in that case the tenant had deposited an amount of Rs.1,000/‑ with the landlord as security against regular payment of rent. The Supreme Court held that such amount had become refundable to the tenant after expiry of the tenancy agreement and the overall position thus obtaining was that the landlord was in debt to the tenant and under such circumstances even if there was a default the same was of technical nature and discretion could not be exercised by the Controller in favour of the landlord under such circumstances. In the present case also the amount of Rs.3,000/‑ according to the tenancy agreement was refundable to the tenant at the expiry of such agreement. Admittedly, the parties were no more governed by the terms of the agreement but as has been held in the Supreme Court case just referred to above, the relationship between the parties after expiry of the agreement was governed purely by the statute applicable to them. As the amount of security deposit lying with the respondent was admittedly more than the amount of rent in dispute in the present case, the facts of the two cases are more or less identical and the learned Controller, in my view, should have exercised his discretion in favour of the tenant. The findings of the learned Controller on the point of default are consequently reversed.

Turning to the ground of nuisance, according to section 15 (2)(v) of the Sind Rented Premises Ordinance if the Controller is satisfied that the tenant has indulged in such activities as are causing nuisance to the neighbours, the Controller shall make an order directing the tenant to put the landlord in possession of the premises. According to the affidavit filed by the respondent in evidence, she was originally residing in a house in Soldier Bazar but later after being ejected therefrom she started living in the same building where the demised premises are situate. According to her statement in the affidavit, the appellant was cooking food for marriage parties and the use of wood as fuel by the appellant was producing smoke which had consequently become a source of nuisance to the respondent's family and other neighours living in the vicinity. There is no rebuttal of these allegations from the appellant which was partly due to the fact that the affidavits filed in rebuttal by the appellant and his witness Mohammad Shafi were struck out and not considered by the learned Controller as both of them had failed to present themselves for cross examination by the respondent. Thereafter it seems, that no attempt was made by the appellant for getting such order set aside by the learned Controller and only written arguments were submitted on his behalf before passing of the order by the learned Controller. Looking at the allegations made by the respondent, if wood was used as fuel and that also for cooking food for marriage parties, the smoke emitted thereby could pollute the atmosphere in the vicinity and could become' a source of nuisance for the neighbours, but the allegations made by the respondent are not supported by any other witness from the locality since there is only the solitary statement of the respondent on the point. No doubt, according to the respondent she also lived in the same building as the appellant and therefore in the same neighbourhood, but her statement cannot be regarded as sufficient for establishment of the case against the appellant as contemplated by section 15(2)(v) of the Sind Rented Premises Ordinance. There being no sufficient evidence on the point, the findings of the learned Controller on this point also are therefore not maintained.

The upshot of discussion is that this appeal is allowed and the order of the learned Controller is set aside. There will however be no order as to costs.

H.B.T./A‑59/K Appeal allowed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.