P L D 1988 Karachi 240 (PLP)

This is an appeal under section 21 of the Sind Rented Premises Ordinance, 1979, arising out of an order passed by the learned 11 Senior Civil Judge and Rent Controller (East), Karachi in Rent Case No.2021 of 1976. wherein the appellant was directed to vacate the premises and hand over its possession to the respondent.

2. The appellant was inducted into possession of the premises in .question by a written agreement of tenancy dated Ist June, 1973 at a monthly rent of Rs.2,

500. The premises comprises of a double storey building for commercial use. On 28‑4‑1976 the respondent filed an adjustment application against the appellant on the grounds of default, subletting, nuisance and impairing the value and utility of the premises. The appellant filed written statement, wherein all the allegations made in the application were denied. On pleadings of the parties, the learned Rent Controller framed the following issues:‑ (1) Whether opponent has committed default in the payment of rent? (2) Whether the opponent sublet the premises in question without permission of the applicant? (3) Whether the opponent has caused nuisance to the occupants of building in the neighbourhood? (4) Whether opponent has done acts to materially impair the value and utility of the premises in question? (5) What should the order be?

3. The respondent examined himself and produced two witnesses, whereas the appellant it's attorney filed his affidavit‑in‑evidence and examined one witness. The learned Controller after hearing the parties gave his findings on all the issues in the affirmative and consequently allowed the adjustment application by his order dated 31‑7‑1986, which is impugned before me in this appeal.

4. Mr.Naraindas, learned counsel for the appellant submitted that the learned Controller has seriously erred in holding that the appellant had committed default in payment of rent from November 1975 till the filing of the rent application. it was further submitted by him that the rent for the months of November and December 1975 was tendered on 9th December 1975 by cheque, as per practice, which the respondent refused to accept. Again on 31‑12‑1975 the attorney of the appellant requested the respondent to accept the rent re‑enclosing another cheque with his letter and a copy of the power of attorney. The respondent again refused to accept the same. On 4‑2‑1976, however, the rent was sent through money order followed by a legal notice dated 5‑2‑1976 of his Advocate to accept the money order but the respondent refused the said money order as well. After the refusal of the money order the appellant deposited the rent in Court on 4‑3‑1976 and continued to depositing the same in the first instance in Miscellaneous Rent case and thereafter in the above adjustment application. The learned counsel in this connection referred to letters dated 9‑12‑1975 (Ex.A‑2), 10‑12‑1975 (Ex.3‑A), 3‑12‑1975 (Ex.A‑4) and 16‑1‑1976 (Ex.A‑5) and 5‑2‑1976 (Ex.A‑6) and the money order coupons dated 4‑2‑1976 (Exs.A‑10 to A‑18).

5. Mr. Abul Inam, learned counsel for the respondent submitted, in reply, that the tender of rent was not legal, inasmuch as the cheque was issued by and on behalf of Hotel Plaza and sent by Govindram, who is admittedly not the tenant of the respondent.

6. Learned counsel for the appellant. in support of his plea that no default was committed by the appellant placed his reliance on a number of cases, reported as Wajahatullah Akhoon v. Mahmoodur Rab (1985‑C L C 1949), Iftikhar Hussain Khan v. Abdul Karim (PLD 1986 Karachi 267) and Inayat Ullah v. Zahoor‑ud‑Din (1987 SCMR 1313); (i) In 1985 C L C 1949 a learned Single Judge of this Court observed that the tender of rent was, though on behalf of a firm but was for tenants! personal, account. It was thus held that the tenant had committed no default in payment of rent in the circumstances and the ejectment application was dismissed. (ii) In P L D 1986 Karachi 267, the tenant remitted rent by money order, but the landlord was avoiding acceptance of payment. The rent was subsequently deposited in Court. It as thus held that the learned Rent Controller rightly exercised his discretion in favour of the tenant. (iii) In 1987 S C M R 1313, it was shown that the landlord deliberately created difficulties in the way of tenant by not accepting rent in the hope that some omission on the part of the tenant may enable him to create a ground for eviction. The conduct of tenant indicates no element of negligence on its part. The tenant, however, on refusal to receive the rent reasonably adopted the alternate prescribed mode of tendering rent by way of depositing the same with the Rent Controller consistently. It was thus held that the' tenant was not a willful defaulter in payment of rent in the circumstance. Alternatively, it was also submitted by the learned counsel for the appellant that at the time entering into a tenancy, three months rent was deposited by the appellant with the respondent. 1 Clause (2) of the said agreement states that "the lesson has already received 3 months' rent as deposit to be adjusted on vacation". Learned counsel submitted that the agreement of tenancy, though for five years, having not been registered will be deemed to be valid for 11 months only and thereafter a month to month tenancy came into existence. The deposit of three months rent was, therefore, available with the respondent, even if the default is held to be committed by the appellant, which is however not admitted by him at all. Reliance was placed on a number of cases reported as Mohammad Yousuf v. Abdullah (P L D 1980 S C 298), Muhammad Amin v. Mst. Nasim Begum and 2 others (1984 C L C 1745), Mohammad Younis v. Mst. Salma Khatoon (1984 C L C 1981), Muhammad Badal v. Mohammad Islam Siddique (1984 C L C 2086), Mst. Saeeda Khatoon v. Muhammad Ahmad Latift (1985 C L C 1392), Agha Mahboob Shah v. Zarina Khawaja (1985 CLC 1426), Munawar Begum and 9 others v. Mst. Alqab Begum (1983 C L C 1548) and Malik Ghulam Rasul v. Muhammad Ishaq (1982 CLC 1014). (i) In P L D 1980 SC 298, the Honourable Supreme Court observed as under: ‑ "As, in our opinion, the rights and liabilities of the appellant, in the instant case, are governed exclusively by the said Ordinance, the question of the amount of rent due from him has to be determined in accordance with, the provisions of clause (i) of subsection (2) of section 13 of the said Ordinance. Under this clause, a tenant has to pay the rent due from him within fifteen days of the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement within sixty days from the period for which the rent is payable'. The words 'the agreement of tenancy' mean an agreement which is in force, and not an agreement which has expired and is dead. Therefore, in the instant case, when the respondent filed his eviction application on the 9th of May, 1970, the appellant was in default in the payment of rent for the month of December 1969, and for the months of January and February 1970. The rent thus due from him was Rs.600. But, as against this, the respondent had failed to return to the appellant the 'security deposit' of Rs.1,000 despite the expiry of the lease agreement. The respondent was no doubt entitled to deduct the electricity charges before returning this amount but even after deducting these charges, the amount lying with him far exceeded Rs.600.11 (ii) In P L D 1981 Karachi 150, my learned brother Ajmal Mian, J. following the above‑cited case of the Honourable Supreme Court (PLD 1980 SC 298) held that deposit of rent was adjustable in the payment of arrears of rent. It may, however, be mentioned that the case of Alifdin v. Khadim Hussain (1980 SCMR 767), relied on by Mr. Abul Inam, was also taken note of in this judgment, but for reasons stated therein the later decision of the Honourable Supreme Court P L D 1980 SC 298 by a larger Bench was followed. (iii)In 1981 C L C 1981, my learned brother, Nasir Aslam Zahid, J., observed that there was an agreement of tenancy valid for a period of 11 months. The appellant tenant had deposited 'a sum of Rs.2,000 as fixed deposit by way of a security with the respondent /landlord, which was admittedly lying with the respondent. It was thus observed that "the monthly rent is of Rs.450 and if the amount of Rs.2,000 lying with the respondent is adjustable against the rent, there will be no default". The learned Judge relying on the Honourable Supreme Court's judgment in the case of Mohammad Yousuf v. Abdullah (PLD 1980 S. C. 298) and also two judgments of this Court in the cases of Haji Abdul Aziz v. Mansooruddin Hyder (1983 C L C 812 and Munawar Begum v. Alqab Begum (1983 C L C 1548), came to the conclusion that there was no default and the appellant could not be held to be a defaulter. (iv) In 1994 C L C 1745, one of the facts of the case was that the petitioner already deposited a sum of Rs.2,500 as security. One of the terms of the agreement was that the outstanding amount of rent would be dedicated out of the amount of sectary at the time of vacation of the shop. Mr.Justice Dorab F.Patel, (the Acting Chief Justice of Honourable Supreme Court as he then was) having placed his reliance on Mohammad Yousuf's case (P L D 1980 S C 298) upset the order of the learned Controller, striking off the petitioner's defense and summarily ejecting him from the disputed shop. It may be mentioned that this was a case in which the defense of the tenant was struck off on an application under section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 for non‑compliance of the tentative rent order for depositing of rent. (v) In the other case, 1984 C L C 2086, my learned brother Saleem Akhtar, J. observed that the security deposited by the tenant still lying with the landlord was sufficient to cover the rent due. Therefore, the default was held only technical in nature and the case was considered fit for the exercise of discretion in favour of tenant. (vi) In the case of 1985 C L C 1426, my learned brother Munawar Ali Khan, J. (as he then was) it was observed that since the landlord had the money payable to the tenant in his hands, any rent remaining unpaid (i.e. the rent for December) could be deducted from that money instead of ordering ouster of the tenant from the demised premises on the ground of default. (vii) In 1983 C‑ L C 1548, my learned brother Nasir Aslam Zahid, J. having placed his reliance on the above‑said judgment of the Supreme Court (P L D 1980 S C 298) held the amount of deposit was adjustable in the parent of rent. It needs to be mentioned here that the case of Alifdin v. Khadim Hussain (1980 S C M R 767) as relied on by Mr. Abdul Inam, learned counsel for ' the respondent was noticed in the judgment and for reasons recorded therein was not followed. (viii) In 1982 C L C 1014, my learned brother K.A. Ghani, J.(as he then was) having placed his reliance on P L D 1980 S C 298, observed that the deposit of advance rent of Rs.500 was lying with the landlord as advance and was sufficient to wipe out the alleged non‑payment of rent of Rs.455 on the basis of which adjustment was sought for. Mr.Inam, on the other hand, relied on the case of Mirza Abdul Aziz Beg v. Muhshtaq Ahmad Sheikh (1980 S C M R 834). This case was, however, distinguished by me in my judgment reported as Faizul Hassan Shaikh v. Anzar Ahmad Siddiqi (P L D 1985 Karachi 43), relied on by Mr.Naraindas, for reasons mentioned therein. Since the facts of the said case are distinguishable to the facts of the present case, the Supreme Court judgment relied on by Mr. Abul Inam is thus distinguishable, which is also earlier in point of time and is not referred to in the latter decision as reported in P L D 1980 S C 298, which has been consistently followed by a number of learned Judges of this Court, as detailed above.

9. The question before me is whether the amount of deposit equal to three months' rent is liable to be adjusted in the payment of arrears for the months of November, December 1975 and January 1976. In order to answer this question, another question arises which, to my mind, is of a basic nature and that is whether the amount deposited with the landlord, by way of security as stated in the tenancy agreement, can be appropriated for a purpose other than stipulated in the agreement? There can be no cavil that the West Pakistan Urban Rent Restriction Ordinance 1959 or, for that matter, the Sind Rented Premises Ordinance, 1979 has an overriding effect of agreement of tenancy in respect of the matters, specifically dealt with in the rent Ordinance; with the result that the relationship of landlord and tenant would be continued to be regulated in accordance with general law of the land and the terms and conditions laid down in the agreement of tenancy, as settled by the parties, subject, however, that in case of conflict of either the general law or a term in the agreement with Rent Restriction Law, the provisions of Rental Restriction Law shall prevail. It makes little difference whether the agreement has expired or not, for example, the rate of rent settled between the parties shall remain in force and if there is a stipulation as to deposit of rent for a certain period with an agreed term relating to its adjustment or refund at the time of vacation of the premises. the same, too, shall remain in force as there is nothing to show in the rent Ordinance that they are repugnant to any provision thereof. In this respect, I may refer to a latest unreported judgment dated. 15‑9‑1987 of the Honourable Supreme Court, comprising of Mr. Justice Mohammad Afzal Zullah, Mr. Justice Zaffar Hussain Mirza and Mr Justice Mian Burhanuddin Khan in Civil Appeal No.68‑K of 1986 (Mrs Zarina Khawaja v. Agha Mahboob Shah. The learned Court after noticing a number of cases namely, Karamat Hussain v. Kazi Ali Muhammad (1980 S C M R 441), Wali Mohammad v. Abdul Karim (1984 C L C 2554), Mr. Nazir v. S.Shaukat Ali 1982 S C M R 985, Sheikh Abdus Sattar v. Malik Muhammad Afzal (P L D 1985 S C 148), Mst Zohra Irshad v. Messrs S.K. & F. Company (P L D 1981 SC 598) Alif Din v. Khadim Hussain (1980 S C M R 767), Mian Mohammad Abdullah v. Sheikh Nawab Din (1971 S C M R 336), Ghulam Muhammad Khan Lundkhor v. Safdar Ali (P L D 1967 S C 530), Miss Gul Jessa v. Mst. Jainah Bai (1984 C L C 1981), Saeedud Din v. Mohammad Saleem (P L D 1980 Karachi 92), Sh. Bashir Ahmed v. Nisar Ahmad (P L D 1980 Lahore 302); West Pakistan Cooperative Consumer Society Lahore v. Messrs Mian Muhammad Farooq & Bros. (P L D 1978 Lahore 28), Mst. Zubaidah Begum v. Mirza Mumtaz Hassan (P L D 1975 Lahore 1504) and M.Ashraf v. M.Sharif (P L D 1971 Lahore 610) was pleased to observe that it can safely be said that the rent laws permit all covenants in agreements, alive or expired; which, are permissible under the general law and not inconsistent with or repugnant to that special law; and enforce the same accordingly whenever it is so required under that law. In addition, they also remain operative for other purposes permitted by the general law. It was thus observed by the learned Court that "we accordingly hold that the terms of an expired agreement as such, continue in operation, to the extent they are not repugnant to the Rent Law. Indeed same would be the position with an unexpired agreement also." The learned Court after referring certain cases was further pleased to observe that "A provision in the expired agreement regarding security deposit for protecting the landlord's interest, if otherwise lawful under the general law cannot be varied under the rent law and has to be applied for to purpose provided in the agreement and not otherwise. "It was further observed:‑‑ That "The security deposit in this case is to be applied by the landlord, according to the terms quoted earlier, to compensate himself at the time of the tenant handing over possession to him, for! unpaid rent and (1) or damages caused by the tenant to the property! at any time. Its application by the High Court for absolving the tenant‑respondent from liability to make a deposit under sections 16(2) and old 13(6) is impermissible and unlawful. The default remain, intact notwithstanding the security deposit. It is clarified that the covenant in each agreement as to security will be construed according, to the agreement itself "The same would have been told result if the default would have been in the payment of rent to type landlord and not a deposit under Section 16(2) or 13(6) of the relevant laws. The security deposit will be applied in the manner provided in! the agreement and not otherwise. In this case it could not be applied to adjust the general default alleged against the respondent, because‑If the tenancy agreement between the parties did not permit it".

10. It may be added that Islam attaches great importance to the fulfillment of contract. The Holy Qur an ordains; i.e. ye who believe fulfil your contracts (Al‑Maidani 5:1). At another place there is an injunction to fulfil your promise: (Al‑Haj 17:34). The importance of fulfilling one s may be very well‑conceived from the fact that Holy Qur an insists on, giving the rights of others and fulfilling one's obligations even fib one feels morally bound by it. However, the contract is not enforcible, in law if it forbidden by the Holy Qur an and Sunnah and thus may be unenforcible and void. There is nothing in the Qur an and Sunnah (Vide Article 2‑A. of the Constitution making the Objectives Resolution! as substantive part of the constitution) or the law of the land'! either general or special, which prohibits the payment of certain! amount of money by way of security deposit by the tenant with type landlord, with a stipulation for refund or adjustment at the time off vacating the premises taken on rent.

11. Following the latest pronouncement of the Honourable Supreme Court, referred to above, I do not find myself in agreement with the alternate submission of the learned counsel for the appellant that the amount of deposit of three months rent was liable to adjustment for arrears of rent for the months of November to December 1975 and January 1976. In fact and law both, it is liable to be refunded/adjusted, 1 at the time of vacating the premises and handing over possession all the same to the respondent. However, I feel persuaded by the primary submission of the learned counsel that there was no default in payment of rent, which was tendered on behalf of the appellant to the respondent by cheque and, upon refusal, sent by money order and then deposited in Court. Admittedly the cheque for the‑ payment oil rent was issued from the bank account of Hotel Plaza. It is amply proved by Annexure F' to the affidavit in evidence of the appellant's attorney, issued by the office of the A.D.M. and Controller of Hotels and Lodging Houses Karachi East, in favour of the appellant showing him as Proprietor of the said Hotel Plaza. I have, therefore, no hesitation in holding that the finding of the learned Controller that the appellant was defaulter in payment of rent for the months of November 1975 up to the date of the filing of the application for adjustment viz. 28‑4‑1976 is erroneous and is reversed accordingly.

12. Regarding subletting of the premises, the learned counsel for the appellant referred to the following paragraph of the application:‑ "2.‑‑That the opponent has without the consent and/or permission of the applicant sublet/ transferred the premises to Hotel Plaza thereby not only violated the terms of Tenancy Agreement executed on 1‑6‑1973 between the applicant and the opponent but has also violated the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959.11 He then referred to Annexure IF' to the affidavit‑in‑evidence, which is a license issued by the Controller of Hotels in favour of the appellant, showing him as proprietor of Hotel Plaza. It was then submitted by the counsel that the business premises, before the same was let out to the appellant, was a Hotel and Bar in the name of Placidly Hotel and Bar. This fact has not been controverter by the respondent. Mr. Abul Inam, however, submitted that according to admission of Govindram he was partner in the hotel business with the appellant, as he happened to be his relative. It is true that appellant has stated so in his cross‑examination, but his statement to this fact is to be taken into consideration as a whole. He says that "he was running the Hotel and Bar from June 1973 to January 1975 as a partner in the business being his relative" . It, therefore, follows that there was no more partnership at the time of institution of the case. This fact also finds support from the power of attorney, which appears to have been executed on 13th July, 1975. However, the burden heavily lay on the respondent to prove the sub‑letting of the premises in question by the appellant in favour of Govindram. It appears that some misunderstanding has crept into mind of the respondent because the appellant was running the business in the name of Hotel Plaza as is evident from the statement made in paragraph No. 2 of the application that "the appellant sub‑let /transfer the premises to Hotel Plaza" . Hotel Plaza appears to be a trading name of the appellant. Learned counsel for the appellant has placed his reliance on a number of cases, reported as Najmuddi v. Zamir Ahmad (PLD 1982 Karachi 188), Motal Bai v. Abdul Aziz and others (P L D 1968 Karachi 635), and Attaur Rahman and others v. Adam Ali and others (P L D 1980 Karachi 241.). (ii)In P L D 1982 Karachi 188, my learned brother Naimuddin, J. (now, Chief Justice) observed that "under section 13(2) (1) (a) a landlord becomes entitled to evict the tenant, if the tenant without consent of the landlord transfers his right under the lease or sublet the entire building or rented land or any portion thereof. Therefore, the question does arise whether entering into the partnership by a tenant with another person simplicities, the tenant would be said to have transferred his rights under the lease or whether entering into the partnership with another person amounts to subletting". In the instant case, there is nothing in evidence that the appellant has transferred the tenancy right to Govindram as alleged by the respondent. Even if it is to be held that Govindram was a partner upto July 1975, it cannot be said, in the absence of any evidence, that there was any transfer of the tenancy to him as partner or otherwise, as observed in the aforesaidr judgment "just entering into a partnership with another person would not amount to transfer of tenancy right, unless the terms of partnership provided that the partnership firm would become vested with the tenancy right." (ii)In the other case, P L D 1968 Karachi 635, Noorul Arfin, J. (as he then was) observed that: "In cases where a lessee enters into a partnership with others and lets the firm into possession of the premises held on lease by the lessee, the question would be what was the intention of the parties with regard to the demised premises when they entered into the legal relationship of partnership and, further whether the lessee had parted with, or divested himself of, the legal possession of the demised premises in favor of the firm. This parting with legal possession should be such as to create an interest in : immovable property, a right in rim in all the partners, so as to create in them unity of title, unity of interest, unity of possession as well as every part as of the whole demised premises, so that all the partners become co‑lessees. Further, parting with possession and letting the firm into use as tenant of the demised premises, or creation of interest in immovable property by way of lease, should not readily construed, particularly in cases of premises subject to Rent Restriction Laws, if the facts can be held to be consistent with some other relationship or arrangement." Applying the test laid down in the above case to the facts of the present case, it cannot be said that the appellant, even by entering into partnership up to July 1975 passed any interest in the premises in question to Govindram so as to make him sub‑lessee of the premises of the appellant nor it can be said, by any stretch of imagination, that it parted with the legal possession of the premises in‑ question. It is pertinent to note that the appellant simply relied on the statement of Govindram and produced no evidence to substantiate his allegation regarding sub‑letting of the premises by the appellant in favor of Govindram. (iii)In 1961 C L C 1747, my learned brother Abdul Hayee Kureshi, J. (later on Chief justice as he then was) referring to a number of cases, particularly the case of Malik Mohammad Ishaq v. M/s. Arose Theatre (P L D 1973 Karachi 522) (D.B.) wherein Mr.Justice Dorab Patel (as he then was), who delivered the judgment, held that "because of the legal title in partnership property being found in partners, this fact would not make them the joint owners of any immovable property belonging to the firm. The principle involved is that the mere. fact of the .use of immovable property by a partnership firm is no guarantee for the correctness of an inference that the property belongs to partnership firm". Applying the above principle to the case, the learned Judge (Abdul Hayee Kureshi, J.) observed that "in law, the mere fact of the premises being occupied by M/s. S. Mohammad Amin and Company would not show that the tenants had parted with their possession".

13. Learned counsel for the respondent, however, relied on this case of Ghulam Muhammad and another v. Haji Muhammad Jamil (1982 C L C 1042), wherein it was observed that once a tenant admits that the tenement is in occupation of somebody else, in that event the burden of proof is on him to explain in what capacity the other person occupied tenement. But the facts of the cited case are distinguishable, as in the instant case there is no admission of the tenant/appellant and secondly that Govindram has explained the nature, of his possession supported by the evidence Annexure IF' that the Hotel is owned by the appellant himself and he is acting as his H attorney and not sub‑lessee. Furthermore, the respondent has miserably failed to bring any evidence on record to substantiate his allegation of sub‑letting. The finding of the learned Rent Controller on the issue of sub‑letting is, therefore, reversed. 14 As regards the issue of impairing the value and utility of the premises in question, the case of the respondent seems to. be, as also urged before me by Mr.Abul Inam that the appellant's running a Bar in the hotel premises has affected the utility and value of the said premises. No other evidence has been produced so as to substantiate the allegation of alleged diminishing of the value or utility of the premises. Admittedly the premises in question was being used as hotel and Bar prior to letting out the same to the appellant. It has come in the evidence of the respondent himself that previous to letting out the premises to the appellant, M/s Harjina and Co, was his tenant and runic a bar therein. I am, therefore, not at all impressed by the submission of the respondent ‑that establishing a Bar in the premises, which was being run as part of hotel business since inception of tenancy affected in any way, the utility and value! of the premises. Reliance has correctly been placed by the learned counsel for the appellant on the case of Shaikh Fazal Elahi v. Shaikh Muhammad Ayub and others (1982 S C M R 8), wherein it has been observed by the Honourable ' Supreme Court that "the premises being used for purpose of hotel from the very beginning and such fact was within the knowledge of the landlord and no exception can be taken by him, it could not be said, in the said circumstances, to have materially impaired utility of the building." It may also be added that no structural change or alteration of the premises affecting the utility and value of the premises has, at all, been alleged by the respondent. The finding is, accordingly, reversed.

15. As regards nuisance, the best case as could be said, placed before the lower Court by the respondent is that the appellant was running a prostitution den in the premises. In support of the allegation, reliance was placed on the statement of PW‑Qutub Din and Mohammad Yousuf. Qutubdin is a Reporter who has accepted the responsibility by publishing news item in the Evening Newspaper "Daily News" Karachi. In the evidence he has categorically admitted that whatever has been published in his newspaper is not based on his personal knowledge. He collected the information from the Press Room of the Police Head Quarters Office, and he was not responsible for his correctness. The other witness Mohammad Yousuf is a Moharrir in the Police Station, Ferozeabad, who produced the Roznamcha of 25‑1‑1976. 1 am afraid, the evidence led by the respondent does not inspire confidence that a prostitution den was being carried on in the premises, for a number of reasons, firstly, the person who reported the matter to the Police or investigated the case has not been produced and secondly no challan has been alleged to have been submitted before the Court, what to say of conviction. In fact, the respondent in cross‑examination ,pleaded his ignorance if any criminal case was filed. Learned counsel for the appellant, however, placed his reliance on the case of Mist. Firdous Begum v. Dr.Shamsunnissa (1982 C L C 332), wherein my learned brother Naimuddin, J. (now, Chief Justice) having elaborately discussed the question of nuisance under Rent Restriction Ordinance, came to the conclusion that the provision of section 13(2) (vi) will be referable to private nuisance and not public nuisance. I may also refer to the case of Mist. Zakia v. Salim Ahmed 1984 M L D

786. My learned brother Zahoorul Haq, J.(as he then was) observed that‑ "It is necessary in very case of nuisance relied upon the parties to prove actual commission of acts of nuisance by production of witnesses who have seen that nuisance. Until and unless that is done nuisance act cannot be found to have been proved." In the instant case admittedly the landlord respondent does not reside in the premises in question or in the vicinity thereof, and, therefore, has not been able to say anything of his own knowledge or any fact about nuisance or the said incident. No neighbor has been produced to prove any private nuisance, at least, to substantive allegation of running prostitution den or even the incident. In the circumstances of the case, it cannot be said that the learned counsel for the respondent has proved the plea of adjustment on' the ground of nuisance. It may, however, be added that the allegation of the respondent is in the nature of public nuisance, which is an offence under section 268 of the Pakistan Penal Code. 16 For the reasons discussed above, I accept the appeal 'and set' aside the impugned order passed by the learned Rent Controller. M.B. A. /M‑357/ K Appeal accepted.