1986 PLP 1445 (MLD)

‑‑‑Ss. 15 & 21‑‑Ejectment for nuisance and impairing of value and utility of premises‑‑Credibility of evidence‑‑Where cross‑examination could not shake credibility of tenant relating to construction of bath room/latrine wherein concurrence of landlord for construction thereof was stressed and such fact having been corroborated by evidence of independent witness, finding of Rent Controller, held, was quite consistent with evidence on record and would not calf‑for interference in appellate jurisdiction. Khalilur Rehman for Appellant. Ismail Rasani for Respondent. Date of hearing: 12th March, 1986. This First Rent Appeal is directed against tl a impugned order dated 6‑2‑1983 of learned 11 Senior Civil Judge and Rent Controller, Karachi, whereby application for ejectment filed under section 15 of Sind. Rented Premises Ordinance, 1979 (hereinafter to be referred as the said Ordinance) has been dismissed. Briefly stated the relevant facts giving rise to this appeal are that appellant Ghulam Nabi is landlord and respondent Muhammad Ashraf is tenant (hereinafter to be referred as such respectively in respect of Shops Nos.l and 2 at the rent of Rs. 500 p.m. for both. There was agreement of tenancy for eleven months executed on 12‑10‑1978 which has expired but the tenancy continues after that. On 23‑11‑1981 landlord filed application for eviction on the grounds of nuisance, impairing value and utility of demised premises and default. In the written statement allegations made by the landlord were denied. In the evidence landlord examined himself end on the other hand tenant examined himself and one other witness by name Saghir Hussain. On all the three issues framed on the grounds stated above, the learned Rent Controller has given findings against the landlord and.in the result ejectment application came to be dismissed. I have heard Mr. Khalilur Rehman, Advocate for, the landlord and Mr. Ismail Rasani, Advocate for the tenant. Before me at the very outset Mr. Khalilur Rehman, Advocate stated that he would not press issue of default for the reason that there is security deposit available with the landlord which could legally be utilised for adjustment. He has pressed appeal on the issues of nuisance and impairing value and utility. On the issues of nuisance, .the case of the landlord as stated in the application for ejectment is that premises were let out to the tenant for the purpose of running Battery Shop but the tenant instead started denting and painting work which is causing constant noise and has become source of nuisance. In the written statement tenant has denied the allegations and has averred that the premises were never taken to run a Battery Shop but were taken to run Auto shop. Further tenant started work of repairing, denting and painting of Cars and other Vehicles in the premises right from the beginning. This fact that I premises were let out for running a business under the name and 'style of "Shah Autos" is mentioned in the tenancy agreement. It is also stated in the written statement that the area in which premises are situate is commercial locality and there are other such shops in the neighbourhood. In the evidence landlord admitted execution of agreement of tenancy Exh. A/I in which this fact is clearly mentioned that the premises have been let out to Messrs Shah Autos. Landlord also admitted that he had no writing to show that the tenant was bound to run business of Battery shop in the demised premises. Landlord also admitted that demised premises were situated in Commercial area and there were other Auto workshop in the same locality. Landlord has also admitted that to ant started work of denting and painting after one month of tenant. It would be pertinent to mention here that the date of execution of tenancy agreement is 12‑10‑1978 and the ejectment application was filed into Court on 23‑11‑1981. In this context tenant reiterated hiss stand in his affidavit‑of‑evidence but he was not cross‑examined on this point except two formal questions which were put to him in suggestive form and denied by him. It was suggested to the tenant that the shop was given to him for Battery shop and that his doing o business in the shop was nuisance to the neighbours and the tenant had denied both these suggestions. Apart from these two question there is no effective cross‑examination on this point from which an inference can be made that the landlord knew that he could not succeed on this ground. Finding given by the learned Rent Controller on this issue is, therefore, consistent with evidence brought on the record and warrants no interference. Next issue is regarding impairing value and utility of demised premise: Landlord has alleged in the application for ejectment that tenant has constructed a gallery and latrine in the demised premises without prior written permission and consent of landlord. Tenant in the written statement denied that he has constructed gallery but admitted that he has constructed latrine in the premises but stated further that the same has been done with the consent and permission of the landlord. Landlord repeated this assertion in his affidavit of evidence and in the cross‑examination admitted the fact that tenant Muhammad Ashraf and other tenants in the same building were using common latrine before the tenant made his own latrine. Landlord also admitted that tenant filed a criminal case against him and got him put behind the bars. Landlord denied a suggestion that Saghir Hussain, Muhammad Iqbal and Muhammad Sarwar had participated in the "Faisala" between landlord and tenant on the question of construction of latrine in the demised premises subject to the increase of rent but admitted that. Hap made "Faisala" which was not accepted by the tenant. Landlord denied a suggestion that "Faisala" made by Saghir Hussain, Muhammad Iqbal and Sarwar was to allow the rent to be increased from January, 1982 with facility of latrine allowed to the tenant. Further in the cross‑examination landlord stated that with construction of latrine in the demised premises the whole building is not affected but the plinth beam was broken but he did not complain against the tenant before any authority for breaking the plinth and he has made such allegations for the first time only in this case. On the other hand tenant stated in the affidavit of evidence that he has constructed bath room/latrine in the premises with consent and permission of the landlord. He further stated that he was allowed to use the facility of common latrine in the building alongwith other tenants but in the month of March, 1981, landlord demanded higher rent and this was resisted by the tenant hence the relations between the two became strained and the landlord stopped facility to the tenant for use of common latrine in the building‑ and also stopped the electricity and water. Tenant further stated that the situation had become so unbearable that he was constrained to report the matter to the police and, elders and. well‑wishers also attempted to have this dispute settled. Such efforts by the well‑wishers brought about a compromise between the parties in which it was agreed that the rent would be enhanced from Rs. 500 to Rs. 550 and in return the tenant was allowed to construct his own bath room in the demised premises. After that amicable settlement the tenant claims that he constructed the bathroom with the permission of the landlord. This fact he has reiterated in his cross-examination and once again he insisted that the landlord allowed him to construct bath room/latrine in the demised premises if the tenant agreed to increase the rent from Rs. 500 to Rs.

550. Tenant also stated in the cross‑examination that this agreement was not reduced into writing but when the landlord did not accept increased rent at the rate of Rs. 550, he sent the same through money order and then deposited in the Court. Cross‑examination has not shaken the credibility of the tenant on this point. Tenant has also produced one witness in his defence b name Saghir Hussain who claimed to have participated in the settlement of dispute between landlord and tenant alongwith Muhammad Iqbal and Muhammad Sarwar. He has further stated that in that settlement landlord had agreed to allow the tenant to construct latrine in the demised premises on his own expenses and the landlord also agreed to restore water and electricity facilities and in return the tenant agreed to pay enhanced rent at the rate of Rs. 550 p. m. instead of Rs. 500 p. m. with effect from January, 1982. This witness was cross‑examined but there was nothing in the cross‑examination to suggest that he is false witness and is not worth relying upon. It was suggested to him that no such "Faisla" took place which is denied by him. He claims in the cross‑examination that.both parties asked him to participate in the settlement talks and he obliged. In this context Mr. Khalilur Rehman, Advocate, for the landlord argued before me that no such "Faisla" too place and allegation made by the tenant in this respect is not correct but I do not feel inclined to agree with him for the reason that on this point evidence produced by the tenant appears to be plausible while o the other hand landlord has failed to produce any evidence t convince the Court that no such "Faisla" took place between the parties. I, therefore, held that on this point also the finding of the Rent Controller is quite consistent with evidence brought on the record b the parties and no interference is called for. Case‑law cited by Mr. Khablur Rehman, Advocate is not attracted to the facts of this case. In the result impugned order is upheld, and the appeal is dismissed with no order as to costs. A.A Appeal dismissed.