2000 PLP 802 (MLD)

(2)??????? Syed Ashraf Ali v. Ali Muhammad. Khan (1986 CLC 735), and (3)??????? Mst. Hashmi Begum v. Mst. Alya Zohra Begum (1985 MLD 1514). In order to appreciate these contentions it would be appropriate to have a glance at the legal position touching as the essential factors which constitute nuisance. Admittedly, the term 'nuisance' has not been defined in the Ordinance itself but on many occasions this term has been discussed and defined by the superior Courts in the light of various judgments, and treatises on the subject. In the case Crescent Carriers v. Gulzar Ahmad & Brothers (supra) this Court made the following observations:-- "But the question is what is nuisance? Noise, smells, pollution of air or water are the most usual instances of nuisance, and the form which nuisance may take are protean, as observed by Lord Wright. But in all cases nuisance arises only when the defendant does something which amounts to unwarranted interference with the rights of his neighbours. As observed by Winfield at page 395 of his Law of Tort, 7th Edition: 'The whole law on the subject (of nuisance) really represents a balancing of conflicting interests. Some noise, some smell, some vibration every one must endure in any modern town otherwise modern life there would be impossible.' Further, nuisance is always relative and what may be nuisance in one country will not be nuisance in another. Similarly, I have no doubt that what is nuisance in Civil Lines, or Clifton would--not be nuisance in Kharadar or Saddar. As observed by Lord Wright in Sedleigh-Denfield. v. O' Callaghan 1940 AC 880 at 903: A balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with. It is impossible to give any precise or universal formula, but it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind 'living in society, or more correctly in a particular society. The orms which nuisance may take are protean'. " In the case of Faridul Hassan (supra), reference was made to the following observations made in the case of Mst. Firdous Begum v. Dr. Shamsunnissa (1981 CLC 332), against which an appeal was preferred but the same was dismissed by the Hon'ble Supreme Court and the judgment was reported as Dr. Shamsunnissa v. Mst. Firdous Begum (1993 SCMR 548):-- "It is difficult to define this term (i.e. nuisance) but from the above?quoted meaning it will be seen that any act or conduct causes injury, damage, hurt, inconvenience, annoyance or discomfort to another in the enjoyment of his respective right of person or property, may constitute 'nuisance'. Something unpleasant or disagreeable would also be covered but what may constitute 'nuisance' in particular case still depend upon many things, such as the type of neighbourhood, the nature or wrong complained of, it prosimity to those alleging injury or damage, its frequency of continuity, and the nature and extent of the resulting injury, damage or annoyance." Moreover, in Faridul Hassan's case reliance was also placed on Mst. Nasreen Rashid v. Asghari Begum Qureshi and others (PLD 1982 SC 453). Relevant portion from this Supreme Court judgment (Mst. Nasreen's case) is reproduced below:-- "7.??????? The learned counsel also submitted that the acts mentioned by the landlady, namely that the tenant keeps dog and that he manhandled the husband of the landlady, do not constitute 'nuisance' within the meaning of the word as used in clause (iii). We are, however, of the view that this contention has no force, because majority of Pakistanis, (being Muslim) do not, usually like to keep dogs as they consider them to be unclean animals and certainly do not cherish dogs sniffing around their living quarters and specially if they are prone to be ferocious and are likely to bite, as in the present case.. Since the respondent/landlady and her husband live in a portion of the same house as the petitioners/tenants, the keeping of the dogs, who have the, run of the house must be an intolerable nuisance for the old couple. But being manhandled by one's own tenant certainly constitutes a greater nuisance within the meaning of the aforementioned provisions of the Rent Ordinance. The same view was taken by a Court in the Indian jurisdiction in the case of Mst. Sunder AIR 1956 All. 211." In Faridul Hassan's case the factual aspect of the case was that the tenant used to slaughter chicken, and evidence had come on record that on account of this slaughtering, blood, feathers, filth and dirt accumulated and foul smell spreaded which created bad smell spreading in the neighbourhood tenements, affecting neighbour residing not only in the building in which the shop was situated but also adjoining buildings. Complaints were made against the aforesaid activities of the tenant and other traders in the area. Besides no effort was made by the tenant to bring credible evidence on record to show that immediate steps were taken for storage and proper disposal of the filth and dirt. Therefore, in the circumstances, on appreciating the entire evidence on record, the Rent Controller's finding that the landlord had made out a case for ejectment under section 15(2)(v) of the Ordinance, was upheld. On the other hand, in the case of Syed Hussain Ali (supra) cited by the learned counsel for respondent while examining the point of public nuisance under section 91, C.P.C., it was observed as under:-- "The cumulative effect of the above provisions is that private action cannot be maintained in respect of a public nuisance except by a person who suffers special or particular damages beyond what is suffered by him alongwith all other persons affected by the nuisance. " In the case of Syed Ashraf Ali 1986 CLC 735, it was observed that the landlord sought ejectment of the tenant on the ground of nuisance but besides bare statement of the landlord in this behalf there was no other evidence to corroborate the same and the appellant's two sons, who were examined on his behalf, did not complain of any nuisance in their evidence while the tenant in his statement categorically denied the allegation of nuisance. .Consequently, the finding of the learned Rent Controller, rejecting the plea of nuisance was upheld by this Court. In the case of Mst. Hashmi Begum 1985 MLD 1514, the following observation was made on the point of nuisance:-- "The word 'nuisance' has not been defined, but it means, acts or omissions which cause common injury, danger, annoyance to the public or to the people in general who dwell or occupy property in the neighbourhood. In order to establish nuisance it is necessary to show that the tenant is guilty of such acts of omission or commission which have caused danger or annoyance or discomfort to the neighbours or residents of the buildings. Occasional or sporadic incidents which may be annoying cannot cause nuisance unless same or similar incidents causing annoyance, danger or inconvenience are reported. " In view of the above observations made in the cited cases the scope of 'nuisance' cannot be circumscribed within narrow limits, but equally it may not diverge to an unlimited sphere to include every kind of disturbance to the inmates of the adjoining premises and in that sense balancing of conflicting interests would be an essential requirement. Confining the discussion within the above-stated domain it can be said that acts amounting to unwarranted interference with the rights of neighbours or causing injury, damage, hurt, inconvenience, annoyance or discomfort to another in the enjoyment of his rights with respect to his person or property, or in any other manner committing acts of gross misbehaviour with the persons who are in use an occupation of the premises in the immediate vicinity, besides creating an atmosphere of environmental pollution, may be treated as instances of nuisance. Keeping in view the general principles and the broad outlines with regard to the concept of nuisance spelt out from the above authorities, it is to be examined what evidence has been placed on record to establish this fact. The appellants have produced affidavits-in-evidence of Fazlur Rehman, Incharge of the appellant's Engineering Department and Afzal Baig, the attorney/officer/Rent Collector of the appellants as their witnesses and, in rebuttal, Dr. Zubeda, the respondent, has filed her affidavit. All these witnesses were cross-examined who also produced relevant documents. Fazlur Rehman, in his affidavit, has stated that he inspected the premises in occupation of the respondent and found that the tenant was guilty of acts and conduct which amounted to nuisance not only to the appellants but also to other occupants of the building. It is stated in his affidavit that all the cotton waste, sanitary pads and other waste material are thrown and dumped by the staff of the respondents in the gutters and sewerage lines and in the corridor which many times blocked the sewerage lines, causing nuisance to the applicant/appellant and other tenants, and that complaints were made in this connection by other inmates to the appellants and a letter was written to the tenant/respondent to refrain from such activities but she failed to pay any heed to the same. In cross-examination he stated that he is in service of the appellants since 4th June, 1979 and visited the premises in the month of June, or July, 1979 on his own. But he showed his lack of knowledge if he submitted a written report thereof or not. However, he admitted that he had not filed any document with his affidavit in this regard. In the end he admitted that it is duty of the appellants to look after the general maintenance and the cleanliness of the building. The other witness, namely, Afzal Baig, who is the attorney of the appellants, gave almost a similar version in his affidavit stating that the respondent failed to maintain the premises in a good tenantable and hygienic condition as cotton waste, sanitary pads and all other waste and useless material, such as cotton lintles were dumped in the sewers as a result of which the sewerage lines were blocked and gutters choked while dirty water collected and overflowed on the floors causing pollution. He also produced two letters, dated 19-11-1976 and 3-1-1979 from Zelins Limited, complaining to the appellants against the respondent on the same lines. However, the authors of these letters were not examined nor their affidavits were placed on record. In cross-examination, this witness stated that initially the respondent was tenant in respect of half of the second floor of the building and the remaining half was taken by her in the year-1972-73 but the nuisance started when the hospital was established. However, the appellants used to engage sweepers for cleaning the premises and they had been doing so continuously. He has admitted in express words that it is for the appellants to maintain the building and keep it in neat and clean condition. A suggestion was put to him that the applicants/appellants had filed this case on the refusal of respondents to enhance the rent which he denied but he admitted the other fact that the respondent had complained about the lift to Martial Law Authorities who decided the case in favour of the appellants, With regards to the proof of maintenance of the building he stated that the record is with the Maintenance Department of the Bank. Regarding the.letter written by Zelins Limited he explained that there used to be a canteen on the ground floor with the Zelins Limited. This indicates that such canteen did not exist at the time of his cross-examination. As against this, the respondent, Dr. Zubeda, stated in her affidavit that she is running the clinic in the rented premises for the last thirty, years and the rent has been enhanced from time to time beginning from Rs.600 to the present rate of Rs.1,

525. She asserted that the appellants are pressing her for further unreasonable and unproportionate increase in the rent. Regarding the nuisance she explained that the rented premises is kept very clean observing all the principles of hygiene and the other tenants had no complaint whatsoever for the last thirty years. But this application has been filed to harass her so as .to increase the rent. In cross-examination she stated that she can produce the record showing that the maternity home was running in the rented premises even before 1970-71. She has stated that this is a five?-storeyed building but she-denied that other tenants had complained against her in respect of unhygienic conditions. On a subsequent day when she was cross-examined she produced documents pertaining to establishment of maternity home. She further explained that the entire second floor is in her possession and there are seventeen rooms in her occupation. She produced the relevant documents viz. income-tax assessment order, her diaries for the year 1961-62 and indoor patients register, etc. The controversial point to be determined in the light of the above evidence is whether such acts could be made out from the above evidence which constitute the essential ingredients of nuisance. It would only then be required to examine the extent and nature of the nuisance so as to appreciate if on account of those acts the respondent is liable to be ejected from the rented premises within the meaning of section 15(2)(v) of the Ordinance. Basically, the appellants were required to establish all those facts in clear and express terms but their evidence shows that their employee, who is an engineer, had only on one occasion gone to the said building but he had not furnished any written report to his superior officers to indicate that the respondent was responsible for a number of alleged acts resulting in pollution of the entire atmosphere and causing annoyance to the neighbourhood. The other witness, who is attorney of the appellants, produced letters of Zelins Limited in respect of this allegation but the authors of those letters were not examined as such those letters do not carry any evidentiary value. Independent corroboration of the version of the appellant's attorney was inevitable but they failed to furnish such. On the contrary, both these witnesses, namely, Fazlur Rehman and Afzal Baig, admitted that maintenance of the building was sole responsibility of the appellants. All that can be inferred from the evidence of these two witnesses is that on some occasion they faced some difficulty in performing their obligation of maintaining the hygienic conditions when certain gutters of the sewerage lines were choked. But since it was admittedly the duty of their sweepers, the same was often cleared. This is a five-storeyed building and in such a huge building, occasional and incidental disturbances in the sewerage and gutter line very often occur but the same are promptly removed by the body or persons responsible for the maintenance of the building and no one from amongst the inmates of the building can exclusively be held responsible for such choking of gutters or sewerage lines where the entire structure contains a number of intricate sewerage lines. The manner in which the attorney of the appellants has given a picture of the alleged pollution, contamination and unhealthy conditions would indicate that all the inmates of the building suffered unbearable environmental inconveniences and if for the sake of argument it is assumed to be true, one would come to the conclusion that the tenants of the building would definitely have taken a serious action protesting against such filthy and unhygienic conditions. Admittedly, as suggested by the learned counsel for the appellants, there were other tenants in the building but none of them came forward to support the version of the attorney of the appellants. The solitary word of their Engineer, who visited the building on one occasion, can, at best, indicate that on that occasion their sweepers, who were primarily responsible for clearing the sewerage lines and preventing gutters from choking, failed to perform their duties properly. It is hardly conceivable that a hospital and maternity home being run for thirty years, had no sensible system of disposing of its waste, such as sanitary pads and cotton waste, etc. In a running clinic/maternity home such refuse/waste piles up in a huge bulk daily and it can hardly be imagined that the entire bulk of such waste would be pushed into the gutters. The respondent had controverted and denied these allegations. The appellants, in my opinion, could not discharge their burden of proving all necessary facts which would establish the point of nuisance within the meaning of case law discussed earlier and the Rent Controller was justified in drawing the conclusion that the applicants/appellants failed to prove the allegations against the respondent regarding nuisance created by her. Incidentally, the points for determination framed by the Rent Controller included the issue whether the respondent had impaired the utility of the premises.. This point was not specifically urged before the Rent Controller at the time of the arguments but in its ultimate end it was contended that the aforementioned acts are sufficient to impair the utility of the building. As already observed, even the said fact of nuisance could not be proved by the appellants satisfactorily. No other plea was taken in specific terms if, in any other manner the respondent had committed acts impairing the material value and utility of the building. Consequently, I would agree with the learned Rent Controller that there were no ground to order ejectment of the respondents as prayed in the said rent application. While maintaining the above findings of the Rent Controller, I dismiss this appeal, leaving the parties to bear their own costs. Q.M.H./M.A.K./H-4/K?????????? Appeal dismissed.