1986 PLP 371 (MLD)

8. That the bad smell of the dirt spreads in the area on account of which Mohallah people are very much anxious and worried. Several persons left the area for contacting asthma.

9. That the habitants of the locality are so much in trouble on account of the activities of the opponent and others that they had several times invited attention of the authorities concerned against them through Press. Photostat of one of the complaints appearing in Daily Newspaper is attached herewith and marked ?A?.

10. That in short the opponent has' indulged in poultry stock business and slaughtering which is causing nuisance to the neighbourers and on this ground the opponent is liable to be ejected from the disputed premises by this Hon'ble Court." The relevant part of the cross‑examination of the respondent/ landlord relating to the questions of nuisance is also reproduced hereinbelow:--‑ "The street near the building is being used as market it is a fact that the meat and fish is also being sold in the street. The chicken sellers are also selling chickens in this street. There are 4‑5 shops in my building. These shops are used for selling vegetable. It is not a fact that there are other vegetable sellers in this street. The meat sellers and fish sellers sell on this footpath. The opponent is my tenant since last 8‑9 years. He sells the chickens there since last 4 years. I had verbally asked the opponent not to do this work, but I had not given him any notice in writing. I had not complained to any department in writing. It is not a fact that the opponent does not deal in chicken in the shop in dispute. It is not a fact that like many other people the opponent also sells on the footpath. It is not a fact that the opponent sells only alive chickens or that he does not cut them there. It is not a fact that there is any washing factory within the compound for cleaning old bottles. It is a fact that there is one plastic moulding plant in the compound. It is a fact that this plant and the factory of washing new bottles belongs to me. I have a shop in the 'bottle street'." Apart from the evidence of the respondent M. Ayub in support of the case for nuisance against the appellant, two other witnesses also appeared for the respondent and they are Arfeen and Yousuf. In the evidence of Arfeen also it is deposed that on account of Poultry stocks there spreads a foul smell which is intolerable to the residents of the building and that the appellant has no proper arrangement for slaughtering the poultry, which he does on the road, on account of which blood, filth, feathers and refuse is spread in front of the building and sometimes it is very difficult to have free access to the building. It is further stated by him that women and children experience great difficulty to reach their place. In his cross‑examination he denied that he was the brother‑in‑law of the respondent. This witness Arfeen is a resident of one flat in Ayub Manzil. He admitted that in the street in front of the shop in dispute vegetables, meat and fish are sold on the footpath and there are chicken‑sellers also in the streets and that it looks a market in the morning hours. He also admitted that there are some shops in the building but otherwise everything is sold on the street. He also stated that there is a plant in the compound of the building where old bottles are washed with chemicals. The other witness of the respondent is Muhammad Yousuf, who has stated that the appellant keeps the poultry stock in his premises and on account of which foul smell spreads, which is intolerable to the residents of the building and generally' to the people living in the vicinity and he made similar statements about slaughtering of poultry by the appellant. This witness owns a building near the building in question. He stated that there are only two shops in the building of the respondent, whereas the respondent had stated that he has five shops in his building. This witness then stated that there is no compound in the building of the respondent whereas according to the evidence of the respondent and witness Arfeen, respondent is carrying on the work of washing bottles in the compound, for which some machinery and chemicals are also used. He stated that in that area there is only one shop of the appellant, who cuts the chickens and there is no shop of fish‑seller and that no fish is sold on the footpath. It was not safe to rely upon the evidence of Muhammad Yousuf at all, as from his cross‑examination it appears that he is not conversant with that area and there are apparent contradictions about the location of the shops and selling of meet, fish and vegetables between his evidence and the evidence of the respondent and the other witness Arfeen. The appellant himself gave evidence and one witness Chiragh Din, vegetable‑seller, also gave evidence in his support. He stated in his affidavit‑in‑evidence that he is doing the business of chicken/poultry for the last about 19 years on the same place even prior to the construction of the building by the respondent and that he is a tenant of the respondent in respect of the shop in question for the last more than 10 years. He stated that the entire street, in which the shop is situated, is being used as a market since after the partition and that there are three chicken‑sellers in the area and about 40 meat‑sellers and three fish‑sellers are also in the area and besides this there are hundreds of vegetable and fruit‑sellers. He further stated that he used the shop as his office and chicken cages are kept on the footpath from the beginning and that he sells alive chicks and that there are other persons, who slaughter and cut the chickens. He denied that he slaughters or cuts the chickens in the shop and stated that no objection had been raised about his business, although he has been doing this business for the last nineteen years on the same street. He has further stated that all the owners of the buildings in the street have converted the ground floor of their respective buildings into commercial units and all the shops in the area are being used by meat‑sellers, general storekeepers, vegetable‑sellers and fruit‑sellers and that the entire area has become a market, where all commodities are sold and available. According to him, he keeps his shop very neat and clean and he uses the same as his office. In his cross‑examination he stated that he uses the shop premises as his Office, where he keeps certain things but he does the work on the footpath and that he does not do any work in the shop. He has further stated that he only sells live chickens but he does not slaughter them and that he does his business on the road, which is one foot away from the gate of the building of the respondent, He denied that he ever kept any cage of than chickens in front of the gate of the respondent. He denied that any filth is created by the slaughter of the chickens but filth is stored in a tub. Only other witness on behalf of the appellant is Chiragh Din, who is doing vegetable business as a hawker in the area and he also resides nearby. He stated that the entire street, on which the building is situated, is being used as a , market and all the owners of the buildings of the street have converted the ground floors into commercial. He states that the appellant sells, live chickens but he does not slaughter the chickens in the shop. He also stated that there are various shops of fish‑sellers, meat‑sellers and poultry in the area. In his cross‑examination, he stated that the chickens are slaughtered on the road but the filth of the chickens is stored in the tubs but he did not know who takes away the filth and when it is taken away. He stated that the cages of the chickens are kept on the road in front of the building but he did not know whether due to this the gate of the respondent becomes closed for entry.

5. Mr. Mirza A. Rashid, learned counsel for the appellant/tenant in his attack on the finding of the Rent Controller that the tenant's activities cause nuisance to the neighbours made the following submissions:

‑ (i) The street and the areas nearby have become a market and the business of the appellant is a normal business that is not only being carried on by the appellant but other traders also, which include chicken‑sellers, meat‑sellers, fish‑sellers and vegetable-sellers. (ii) The appellant does not carry on the work of selling chickens inside the shop in question but carries it on the footpath. (iii) The appellant only sells live chickens and does not slaughter them. According to the learned counsel, the purchasers of chickens from the appellant get hold of other persons, who are present there, and who slaughter the chickens, required by the purchasers, on nominal charges. (iv) The neighbouring area has not been` made dirty/or filthy on account of any activity of the appellant. (v) The respondent himself is running a factory in the compound of the building, in which the premises are situated, and in this factory empty bottles are washed. In short, the contention of the learned counsel was that no case for causing nuisance by the appellant had been made out by the respondent.

6. Mr. Zahiruddin Khan, learned counsel for the respondent argued that the activities of the appellant amount in nuisance and a case had been made out under section 15(2)(v) of the Sind Rented Premises Ordinance, 1979 and in this regard a correct finding has been given by the Rent Controller on the basis of the evidence on record. On the question of nuisance, learned counsel relied upon the following reported judgments:

(a) Mst. Firdous Begum v. Dr. Shamsunnissa 1981 C L C 332.‑--‑In this judgment by a learned Single Judge of this Court, while considering the provision contained in section 13(2)(iv) of the West Pakistan Urban Rent Restriction Ordinance, 1959, after referring to the English and India case law, observed in pars. 19 of the report as under:‑-- "It is difficult to define this term (i.e. nuisance) but from the above‑quoted meanings it will be seen‑that any act or conduct which cause 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, its prosimity to those alleging injury or damage, its frequency of continuity, and the nature and extent of the resulting injury, damage or annoyance resulting." (b) Dr. Shamsunnisa v. Firdous Begum 1983 S C M R 548.‑‑In this case the tenant, in the case reported hereinabove in 1982 C L C 332, had filed a petition for Special Leave to Appeal against the aforesaid judgment of the learned Single Judge of the Sind High Court and although leave was granted, by this judgment of the Supreme Court of Pakistan, the appeal was dismissed. (c) Mst. Nasreen Rashid v. Ghulam Farid, Additional District Judge P L D 1982 Lah. 555.‑‑In this case the tenant had been ejected on the ground of nuisance under section 13(2)(iv) 'of the 1959 Rent Ordinance and the Rent Controller's order was affirmed by the Additional District Judge and by this reported judgment, the writ petition filed by the tenant was also dismissed. It was contended before the learned Single Judge of the Lahore High Court on behalf of the tenant that the evidence led by the landlady showed that the petitioner had caused nuisance to the landlady alone and since there was no evidence indicating that other occupants of buildings in the neighbourhood were also victims of the nuisance attributed to him it did not constitute valid ground for ordering eviction of the petitioner. It was held by the learned Single Judge of the Lahore High Court that the word 'building' in section 13(2)(iv) of the 1959 Rent Ordinance can be interpreted as one building also. According to the learned Single Judge, since the tenant had been guilty of causing nuisance to the landlady and her family, who lived in the neighbourhood of the house occupied by the tenant, the tenant was liable to be evicted from the said house. It may be observed here that against the judgment of the learned Single Judge of the Lahore High Court reported in P L D 1982 Lah. 555, a petition for special leave was filed by the tenant but the petition was dismissed and leave was not granted by the Supreme Court and the order refusing the leave is reported in the case of Mst. Nasreen Rashid v. Asghari Begum Qureshi and others P L D 1982 S C

453. Para. 7 of the order of the Supreme Court is reproduced hereinbelow:‑

"

7. The learned counsel also submitted that the acts mentioned by the landlady, namely that the tenant keeps dogs 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 of majority of Pakistan is (being Muslims) 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 petitioner/ tenant, 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 A I R 1956 All. 211, wherein it was held that:‑

"The question is whether the acts of ill‑treating, abusing and beating the landlord who happened to be an old lady and who is residing in a part of the house constitute a nuisance or not. The learned Judge appears to think that creating a nuisance means using the accommodation in such a manner as to make it unfit for human occupation or keeping' it extremely dirty 'or putting it to a use which might have the effect of depreciating the value of the property in future. I think the words 'creating a nuisance' are capable of a wider interpretation. They include on the part of the tenant in my opinion, acts and behaviours which make it extremely inconvenient for the landlord or any other tenant occupying a portion of the house to live in it in peaceful manner. A person who abuses his position as a tenant by resorting to acts of violence against his landlord who is occupying a portion of 'the house creates, in my opinion, a nuisance such as would entitle the landlord to go into a Court of law and seek his ejectment without the permission of the District Magistrate under section 3 of the Act. To put any other interpretation upon the words 'creating a nuisance' would be to put a premium on gross misbehaviour on the part of a tenant occupying a house in a portion of which is landlord also happens to be staying." For the foregoing reasons we uphold the view taken by the learned Rent Controller and refuse leave to appeal.

7. The argument of Mr. Mirza A. Rashid, learned counsel for the respondent, that the entire street and the ground floor of all the buildings situated on this street have become a market and as such the activities of the appellant/ tenant are to be judged in his background for purposes of arriving at the conclusion whether these amount to nuisance or not under section 15(2)(v) of the Sind Rent Ordinance, is correct. Reference has also been made to the judgment reported in 1982 C L C 332 where while observing as to what may constitute nuisance, it was inter alia observed that it depended on many things including the type of neighbourhood. The fact that the street is being used as a markets in which meat, chicken, fish and vegetables are also sold, is no doubt a relevant factor but the mere fact that a tenement is located in a market, does not give a free licence to the tenant to indulge in such activities, which cause nuisance to the neighbours and which activities can be avoided without in any way affecting trade or business of the tenant. In the area in question there are meat‑sellers and chicken‑sellers and, therefore, no restriction could have been placed upon the appellant that he cannot carry on, this trade. The fact of selling chickens or slaughtering them by itself may not amount to nuisance to the neighbours in area, which is a market and in which similar trade/business is carried on by others. However, if the trade or business is carried on by the tenant in such a way, which creates dirt and filth in the neighbouring area, this would definitely be a source of nuisance to the neighbours particularly so if such dirt and filth could be avoided by the tenant if he had taken reasonable steps in this regard. It has been admitted by the appellant that he sells about 30 to 50 chickens a day and that the purchasers, who want to get the chickens slaughtered, can get the same slaughtered on the footpath through other persons. The appellant has taken the stand that the persons, who slaughter the chickens, are not his employees. However, the direct connection between such persons and the appellant cannot be denied. This slaughtering of the chickens, even if such slaughtering is by other persons, who are not direct employees of the appellant, is directly connected with the business of the appellant, who sells chickens on the footpath immediately in front of the shop in, question. From the evidence on record it has also been established that on account of this slaughtering blood filth, feathers, filth and dirt accumulates and foul smell spreads. It is also in evidence that these activities create bad smell, which spreads in the neighbouring tenements affecting neighbours residing not only in the building, in which the shop in question is located, but also adjoining buildings. It has also come in evidence that complaints were made against the aforesaid activities of the appellant and other traders in the area. The argument, that the trade of selling chicken is not carried on inside the shop in question but on the footpath, has not impressed me. The appellant has admitted that he uses the shop for the purposes keeping other things but the fact remains that he selling chickens right in front of the shop, which has been rented out to him. The activities of the appellant as a tenant of the shop in question while carrying on the business of selling chickens in front of the shop on the footpath are also relevant in an application for ejectment filed under section 15(2)(v) of the 1979 Sind Rented Premises Ordinance. Then there are three photographs, which' were shown to the appellant during his cross‑examination and which have been produced as Exhs. 7/C, 7/D and 7/E respectively. Exh. 7/C shows a number of cages, in which live chickens are kept till they are sold to the public. The picture Exh. 7/C shows that the entrance to the main building belonging to the respondent and in which the shop in question is located is partly blocked by such cages. Although the appellant denied that the cages do not belong to him but Chiragh Din (Exh. 8), witness of the appellant has admitted that the cages of the chickens are kept on the road in front of the building. The keeping of the cages, in which chickens are kept in front of the building, is bound to hinder movement of the occupants of the building and cause inconvenience to them for going in or out of the building. In regard to the filth and dirt on account of the slaughtering of the chicken, a stand had been taken in evidence by the appellant that the filth is kept in tubs. The fact, that slaughtering of chickens creates filth and dirt, cannot be denied. As observed earlier, the appellant is directly connected with this activity, which causes filth and dirt. No effort was made by the appellant to bring credible evidence on record to show that immediate steps are taken for storage and proper removal of the filth and dirt. Chiragh Din, witness of the appellant, had also stated that the filth of the chicken is stored in the tubs but then he stated that he did not know who takes away the filth and when. Exhs. 7/D and 7/E which are two pictures, also show the filth that is created on account of the slaughtering of the animals in front of the shop of the appellant. In my view, on account of the business of the appellant, which is carried on immediately in front of the shop in question, filth, dirt and feathers accumulate and bad smell spreads in the area causing serious inconvenience to neighbours. The placing of cages of chicken in front of his shop by the appellant also causes inconvenience to the occupants of the building, in which the shop is located. The evidence does not disclose whether any action is taken by the appellant to eliminate filth and dirt which get accumulated in the area immediately in front of his shop. Such activities of the appellant obviously amount to causing nuisance to the, occupants of the building, in which the shop in question is located: No doubt, the shop is located on a street where there are other meat‑sellers, chicken‑sellers, vegetable‑sellers and fish‑sellers doing business but, as observed earlier, this fact doe not give any licence to the appellant to be a source of creation filth, dirt and bad smell in the area or to cause inconvenience to the occupant and neighbours in so far as the entrance of the building is concerned by placing chicken cages in front of his shop, which nuisance could easily have been avoided by the appellant taking reasonable steps for cleanliness and keeping the entrance to the building unrestricted Reference may here be made to an unreported judgment dated 11‑11‑1985 of this Court in Asad Brothers v. Mr. Ibadatyar Khan First Rent Appeal No. 868 of 1983. In this judgment, in which reference has been made to case‑law from Pakistan, India and England and also to standard works on Torts, it was held that vibration, smoke and fumes proceeding from an exhaust fan fixed by the tenant in his snack bar located in a commercial area caused inconvenience materially interfering with the ordinary comfort of the residents of neighbouring flats. This judgment supports the case of the respondent.

8. On an appraisal of the entire evidence on record, in my view, a correct decision has been taken by the Rent Controller that the respondent had made out a case for ejectment of the appellant under section 15(2)(v) of Me Sind Rented Premises Ordinance, 1979. First Rent Appeal No. 110 of 1985 is accordingly dismissed with costs. However, the appellant is granted time till 30‑6‑‑1986 to vacate the premises subject, however, to regular payment/deposit of rent. M.Y.H???????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.