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Petitioner: Messrs ASAD BROTHERS VS Respondent: IBADAT YAR KHAN
Court Name: Supreme Court of Pakistan Judge(s): Sajjad Ali Shah, Abdul Qadir Sheikh Title: Messrs ASAD BROTHERS vs IBADAT YAR KHAN Case No.: Civil Appeal No,273-K of 1986 Date of Judgment:1991-03-17 Reported As: PLD 1991 Supreme Court 645 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' SAJJAD ALI SHAH, J.---This appeal with leave calls in question judgment dated 11-11-1985 of High Court of Sindh in F.R.A. No,868 of 1983, whereby appeal against order of eviction passed under section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959 is dismissed. Briefly stated relevant facts giving rise to this appeal are as under:- ' Appellants and respondent before us are tenants and landlord respectively (to be referred as such hereafter) of tenement which is consisted of two shops situate on the ground floor on Plot No,11-C, Commercial Area, Mohammad Ali Housing Society, Karachi, on rental of Rs,700 per month. On 1-9-1970, both parties executed agreement of lease, which contains provisions, inter alia, that tenants would not make change or alteration in the premises or any part thereof without prior permission of landlord and also there is a prohibitory clause in the said agreement stopping tenants from causing inconvenience or nuisance to the neighbours or adjoining tenants. On 6-2- 1972 landlord filed ejectment application which was registered as Rent Case No,462/72 in the Court of XVII-Civil Judge and Rent Controller Karachi, for eviction under section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959. It was alleged in the said application that tenants in violation of terms of agreement and without prior permission of landlord, had cut a big hole in the southern side of the wall of the tenement and fixed a big exhaust fan in it, which caused vibrations throwing fumes polluting the air. It was also alleged that tenants used demised premises as Snack Bar and as such obnoxious fumes produced by frying of fish, vegetables and other eatables on gas burners and thrown out by exhaust fan had become nuisance for inmates in nearby residential flats. It was also alleged that tenants had been using Deep Freezers, Air-conditioners, Ice-cream machines and other electric appliances unauthorisedly exposing water pump dynamo to serious risks and
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endangering the whole building. Also complaint was made that tenants had been serving customers outside in the open till 4-00 a.m. In the morning, hence noise caused by shouts of waiters and blowing of horns caused nuisance. In the written statement filed by the tenants allegations made against them were denied. Execution of agreement of lease was admitted with the exception of clause 10(a) which was alleged to have been added surreptitiously. About exhaust fan, plea was taken that it was fixed with prior permission of landlord. It was further stated that landlord had filed Suit No,540/71 against tenants in which same allegations were made as in the ejectment case hence the matter was sub judice. Keeping in view pleadings of the parties, as many as nine issues were framed. In the evidence, landlord examined himself and four other witnesses. On the other hand tenants examined Hassan Ahmad and four other witnesses. Issues Nos.1 to 5 and 8 were found in the affirmative. Separate findings were recorded for Issues Nos.6 and 7. Resultantly eviction was granted on the grounds that tenants caused nuisance to neighbours and other tenants and value of the property was impaired by the acts of the tenants. ' Against order of eviction dated 8-10-1978, in R.C. No,462/72, tenants filed Rent Appeal No,585/78 which was heard in the Court of VIIth Additional District Judge at Karachi. During the hearing of appeal, tenants filed an application dated 16-9-1979 for recording of additional evidence of three witnesses named therein as Jamaluddin, Sabir Ali and Abdul Khalid working in KMC. This application was dismissed vide order dated 11-12-1979 and subsequently appeal was dismissed on merits vide judgment dated 31-3-1980. Somehow, copy of this judgment is not included in the paper book. Against dismissal of appeal, as stated above, tenants filed second Appeal No,209/1980 in the High Court of Sindh at Karachi. This second appeal was allowed vide judgment dated 20-12- 1982, whereby the case was remanded on the ground that the Rent Controller was not justified in closing the side of tenants and the first Appellate Authority acted illegally in disallowing request of tenants to summon three witnesses named in the application. Consequently case was remanded back to the Court of Rent Controller with direction that summons be issued for examination of the witnesses mentioned in the application dated 19-4-1978 and the case be decided afresh in accordance with law in the light of the evidence brought on the record. ' Against the order of remand by the High Court, landlord filed in the Supreme Court Civil Petition No,121-K of 1983 for leave to appeal in which leave was granted vide order dated 23-1-1985 and resultant Civil Appeal No,6-K/85 was dismissed as withdrawn vide order dated 21-4-1985. ' After remand back in the Court of Rent Controller, the same Rent Case No,462/72 came to be decided by Mr.Allah Rakhio Leghari, VIIth Senior Civil Judge/Rent Controller, Karachi, who, as directed by the High Court, examined two witnesses namely, Jamaluddin and Sabir Ali, both Inspectors from KMC while third witness named in the application was given up on the ground that either he had died or left service of KMC and his whereabouts were not known. After assessment of evidence already on the record and additional evidence recorded by him, the learned Rent Controller allowed eviction and directed tenants to hand over vacant possession within 60 days from the date of his order. Against the order of eviction, tenants carried appeal to the High Court which was registered as F.RA. No,868/83 and was heard and dismissed vide judgment dated 11-11- 1985, which is impugned in this appeal before us. In appeal for consideration before us, leave was granted to examine the three contentions: (1) whether permission to install exhaust fan had already been granted by the landlord, (2) whether such permission was in accord with stipulatibn in the lease agreement that tenants were permitted, to make additions and improvements in the demised premises at their own expense as may be necessary for their business, and (3) since disputed premises were let out as snack bar and restaurant so permission of exhaust fan in the kitchen was implicit in the lease agreement. ' In order to examine the contentions mentioned above, it would be necessary to examine firstly lease agreement, secondly the pleadings of the parties and the evidence brought on the record
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and thirdly the correct legal position on the issues of nuisance and damage to the value of the property. Now so far agreement of lease is concerned, photo copy thereof is available in the paper book at page 200, and this agreement was executed by the parties on 1-9-1970. Relevant features of this agreement for the purpose of this appeal under consideration are that the premises are let to be used and utilized for purposes of establishing and running an ice-cream and snack bar and a restaurant. Secondly, tenants are required to keep the premises clean and in hygienic condition and to enjoy peaceful possession without causing any nuisance or inconvenience to the tenants over-head or in the adjoining shops. Thirdly, tenants shall be responsible to control their employees and customers from trespassing into other portions of the building and shall in no case use Verandah or passages leading to the staircase for storing empty cans or other stuff or occupying the same in any other manner. Fourthly, tenants, at their own expense and after written consent of landlord can cause such alterations and improvements as may be required for the purposes of their business. It is also mentioned in the said agreement that after expiry of lease, tenants shall vacate premises and put the landlord in possession of the same after restoring the same in good order and condition but shall not remove or pull out any fixtures or other improvements excluding air-conditioner or other articles used by tenants for their own purposes and comforts. ' In the ejectment application filed on 6-3-1972, copy of which is in the paper book at page No,85, grievances were made that tenants in violation of terms of agreement and without permission of landlord, cut through a big hole in the wall of the building and fixed a big exhaust fan in it. The fan caused virbrations and started throwing out fumes which polluted the air for residents of the flats overhead. Shop of tenants, while used as snack bar, produced obnoxious fumes due to frying of fish, vegetables and other eatables on gas-burners which passed through the exhaust fan, making it disagreeable and unhealthy for the inmates of residential flats. Due to the offending acts mentioned above, two tenants named therein felt compelled to give up their tenements. In spite of repeated requests and notices, tenants had refused to remove the said exhaust fan and stop nuisance. Tenants unauthorisedly had taken leads from electric meters for use of deep-freezers, air-conditioner, ice-cream machines and other electrical appliances, exposing water pump dynamo to serious risks of burning and causing denger to the whole building. Tenants served customers outside premises on the road until 4-00 a.m. Hence noise and blowing of horns caused nuisance for residents in the area. Careless and excessive use of water caused choking up of gutter lines and spreading of water in the whole area. Tenants used abusive and insulting language against other tenants of the same building and misbehaved with Chowkidar, care-taker and rent collector of landlord. Tenants unauthorisedly took another shop from Haji Abdul Latif and set up kitchen in it for which unauthorised supply of gas is arranged. Tenants used premises in unhygienic manner by cleaning dirty utensils and throwing vegetables and leftovers of eatables, which had given rise to obnoxious smell causing nuisance to the residents of the area. Finally it is stated in the application for ejectment that offending acts enumerated above, had materially impaired the value and utility of the building causing substential material and financial loss to the landlord. ' In the written statement filed by the tenants, copy of which is in the paper book at page 90, allegations made by landlord are denied including violation in the terms of agreement. It was denied that exhaust fan emitted any fumes to annoyance or inconvenience of others. Assertion was made in the written statement that exhaust fan was installed with prior permission of landlord. Assertion was made in the written statement that landlord had made similar false accusations against tenants in Suit No, 540/71, which was pending in the Court as such the matter was sub judice. All other allegations were denied one by one including setting up kitchen in another shop with unauthorised gas connection.
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' In the evidence, landlord examined himself and four other witnssess. PW-1 is Erach Aga. He deposed that he was looking for accommodation for his tenant who was to vacate his tenement. He inspected flat above demised premises but did not like the approach because staircase and connected area was blocked by cycles and crates of Coca Cola bottles and empty tins. There was rubbish also and bad smell. Smoke was coming in the flat. Landlord agreed to reduce the rent from 500 to 400 but even then he did not approve the flat for the reason that it was not fit for use of family. In the cross-examination this witness admitted that he was client of Mr. Ibadat Yar Khan and knew him thoroughly well. We exclude his evidence from consideration. PW-2 is Siraj Hussain, who deposed that in June or July 1973 he went to see the flat above demised premises after reading advertisement in "Dawn" and "Sun". He did not like the flat for the same reasons as were stated by PW-1. He informed the landlord that he would take the flat only when defects were removed including smoke coming from exhaust fan. In cross he admitted that flat, he inspected, was in commercial area and there were other snack bars on both sides of the building. In principle he had no objection in living in commercial area but on second visit, flat was not approved by his family. He and his family disliked flat, due to fumes and smoke. PW-3 is Dr. Muhammad Saeed Khan, who deposed that he is tenant of the landlord in this case. He was not satisfied with clinic situation and its surroundings for the same reasons as stated by other witnesses examined by the landlord. His clinic was on the first floor and he had to pass through the staircase which was dirty and remained blocked with empty crates. According to this witness smoke went into rooms above the premises in question. In cross-examination this witness stated that landlord had promised for removal of nuisance, hence he continued tenancy. PW-4 is Muhammad Moinul Karim, an employee of Muhammad Ali Cooperative Housing Society, who identified signature of Asafullah Khan, Officer Incharge, on Ex.11. He further stated in cross-examination that office did not take action against landlord in respect of Ex.11 but verbally asked the tenant and in that context a letter was also sent to the tenant. ' PW-5 is Mr. Ibadat Yar Khan who is the landlord. In deposition his examination-in-chief runs into seven pages. He has narrated all-the relevant facts in the background including terms and conditions of the- tenancy and undertaking given by the tenants to him that they shall not conduct their business in such a manner as to cause nuisance to other tenants and reduce the rental value of the building. He enumerated acts of commission and omission by the tenants in violation of terms of agreement as stated in the application for ejectment and claimed further that he lost several tenants residing in the flats above-demised premises including Mr. M. Alhararry Commercial Attache of Saudi Arabian Government, Mr. Woolrich and two other tenants from PIA one of whom was employee of Nairoby and those tenants had to go away on account of hostile attitude of the tenants of the demised premises and their offending acts which amounted to nuisance. Landlord also mentioned that on account of such acts of the tenants of the demised premises there were protest letters from KESC and Administration of Muhammad Ali Housing Society. He also received letters from Mr. Alherairy, which were produced as Exhs.13, 17 and 18 in Suit No,540/71. Landlord, also stated that on account of offending acts of the tenants of demised premises, his flats in the same building mostly remained vacant and interested parties used to hesitate and shy away from accepting tenancy in those flate because of acts of tenants of demised premises amounting to nuisance. Landlord has further fully supported and backed all the allegations made by him in the application for ejectment even with documents wherever found necessary. Landlord complained that tenants had dug a big hole in the wall of the shop and fixed a big exhaust fan which started throwing fumes and gases causing discomfort to the occupants of flats. There was no funnel on the exhaust fan and when date was fixed for inspection in Suit No,540/71, quickly a tin funnel was fixed on the fan only and such photograph was also taken by
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him. Landlord was subjected to very lengthy cross-examination running into nearly 11 pages, which was recorded in instalments. ' In cross-examination landlord has explained how clause 10(a) came to be inserted in the agreement providing 10% concession in the price to him. This clause was added subsequent to the typing but before signature. Landlord has explained that originally the shop was let out as Ice- cream selling centre with some light items of vegetables which could be called as a snack bar but it was expressly agreed that keeping in view the situation of premises there would not be a full- fledged kitchen or any other establishment disproportionate to the safe situation of the premises. In agreement it was left to the good sense of the parties but the things were to be done within the limitations agreed between them. Main complaint was that due to vibration of huge exhaust fan there was noise disturbing the peace and also fumes and smoke were thrown into the living rooms of two flats on the first floor of the building. Breaking up of the wall and masonry was done without permission of the landlord. Landlord admitted that first exhaust fan was fixed just after tenancy but it was not an exhaust fan but was an exhaust duck. No fan was ever fixed before the disputed one. Landlord admitted that he did not make any complaint to the KMC or Administrator of Muhammad Ali Housing Society but he received complaint from the Society itself. In the suit filed by him, application was made for injunction and also for site inspection and before that date at night, tenants put up a chimney over the exhaust fan. Landlord also produced letter dated 1-9-1973 Ex.25 from Mr. Ibrahim-bin-Digo, a Libyan trainer in PIA who had taken flat for a long time but on account of nuisance caused by the tenants of demised premises had to leave after two nights. ' On the other hand, tenants have examined Syed Hassan Ahmed and six other witnesses. DW-1 is Syed Hassan Ahmed, who is Manager of the firm of tenants called M/s. Asad Brothers. He is partner in the business of Spinzer run by tenants in the disputed premises. According to him, premises in dispute were taken for running a snack bar, which business is done between 10 a.m. And 2 a.m. There are 8 other snack bars in the same locality which is commercial area. According to this witness he did not receive any complaint from any quarter and tenants had permission for fixation of exhaust fan which is a must for such business. He has his own meter of electricity. He did not use water from the water pump of the landlord. He sold drinks and snacks to customers outside the premises but in their cars. He admitted having cooling machine to supply cone ice-cream. He did not receive any complaint from the landlord or any other person regarding mode of service. He denied creating any nuisance by spilling water near the water tank. His whole examination-in-chief runs into one and a half pages. It is not necessary that his examination-in-chief should be as long as that of landlord but it is expected that all allegations made by the landlord in the application for ejectment or in his evidence should be sufficiently met or answered in reasonable manner one by one. ' Anyway, in the cross-examination this witness replied that when he took premises there were two overhead tanks but water was stored in one and he took water from the said tank. Meter of water pump was changed to his name at his own request and electrictity meters were also transferred in his name. Eatables are prepared in the other shop having water pump and there is a kitchen in that shop. This shop is in possession of Haji Abdul Latif. Gas meter of the shop in occupation of Haji Abdul Latif is situated in the open space near the wall of Spinzer. This witness has admitted that he has kitchen in snack bar and there is pantry within the shop premises in his occupation. He has denied that shop of Haji Abdul Latif is in his possession but has admitted that he has kitchen in that shop. He has denied that he has installed gas meter and gas line in the said shop without permission from landlord. He has admitted that he requested landlord for blue-prints of the building for fixing up exhaust fan and air-conditioner and landlord wrote to him that he would come personally and give him that permission verbally. Thereafter landlord came and gave him requisite permission. This witness also stated that landlord did not give him the blue-prints. He
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admitted that there are about 13 or 14 bearers in the snack bar. He denied other allegations made by the landlord with regard to making noise, throwing rubbish, blocking up staircase etc. He expressed ignorance that due to vibrations caused by exhaust fan, many tenants in the building had left tenements. ' DW-2 is Choudhry Altaf Hussain, who has deposed that he is tenant of the same landlord in the same building of tenement on the first floor. He has never been affected by the fumes of the chimneys behind the snack bar. No other occupant on that floor made such complaint. He denied that tenants in the disputed premises caused any nuisance in any manner. In cross-examination this witness admitted that landlord had filed a case of ejectment against him and on the order of the Court he has deposited in the Court arrears of rent amounting to Rs,10,500 and also has been depositing current rent. This witness also admitted that he and other tenants complained to Martial Law Authorities for non-supply of water. He denied that landlord demanded from him and other tenants electricity charges for water pump. This witness admitted that one flat in the building was still lying vacant. It would be best to keep evidence of this witness out of consideration for the reason that he has grievance against the landlord as per his own admission. ' DW-3 is Muhammad Ashraf Qazi. He has deposed that he has been visiting commercial area since 1969 and has been visiting Mr. Muhammad Saeed who has clinic in the same building in which Spinzer snack bar is situated. He had never seen dirt, filth or garbage lying inside or outside the building. He has also stated that electric connection in the premises of Spinzer is same which K.E.S.C. Had installed. In cross-examination this witness stated that he saw Dr. Saeed only twice or thrice when he was unwell. In 1974, he inspected switch-board under the staircase. He did not know Proprietor of Spinzer but met Mr. Hassan a few days ago. He came to the Court on the request of landlord to depose whatever he had seen. He did not charge anything from Spinzer for inspecting switch-board. DW-4 is Azizul Hague, who had deposed that he is employee of National Beverges and has been supplying Coca Cola and other cold drinks to Spinzer. He did not see any filth or dirt or garbage in the premises. He has stated that empty bottles were not kept outside because they are costly. In cross, this witness stated that he has friendship with Choudhry Altaf and used toilet near the staircase in the demised premises. DW-5 is Abdul Majeed who has deposed that he was employee of landlord for about a year and half in the past as Chowkidar of the same building. It was 5 or 6 years ago. He knew proprietor of Spinzer. There was toilet beside the staircase which was for common use and the one inside Spinzer was in the use of Spinzer. He saw no dirt or filth or garbage in the premises. He received no complaint from anyone. In cross, he admitted that he has been visiting tenants of disputed premises oft and on for the last 5/6 years but further claimed that he had appeared in the Court because he received summons. He admitted that 10/12 days ago tenants of the disputed premises asked him to come to the Court for recording his evidence. He also admitted that owners of the snack bar used to give him food as he was Chowkidar of the building. It is obvious that these three witnesses DW-3, DW-4 and DW-5 are interested witnesses and are not fit for reliance. ' DW-6 is Jamaluddin who was Health Inspector, KMC in the year 1975-76. He deposed that he visited Spinzer snack bar and had not received any complaint about its unhealthy condition. He did not see any garbage in the premises. Exhaust fan is connected with chimney and there was no bad smell or smoke. He never received any complaint nor challaned proprietor of that snack bar. In cross-examination he stated that he did not remember whether there was exhaust fan in the disputed premises in the year 1975-76. He had not seen Haji Abdul Latif in person but stated that licence of the snack bar was in his name. He stated that there was no chimney in the shop of Haji Abdul Latif but there was exhaust fan in the said shop for which chimney was not necessary. He did not challan Haji Abdul Latif. He did not remember as to who were challaned by him in the last five years. DW-7 is Sabir Ali who deposed that he was Food Inspector in the year 1973-75 and again
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1978-80. He visited Spinzer snack bar to check food adulteration and general sanitary conditions. He did not notice any defect or fumes or smoke coming from exhaust or chimney. In cross this witness admitted that he was giving evidence from his memory in the absence of record from KMC Food Department. He admitted that he did not remember if there was chimney in the disputed premises in the year 1973 but exhaust fan was there. He also stated…
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