1988 PLP 1776 (CLC)

These two First Rent Appeals bearing Nos. 265 of 1985 and 398 of 1985, are directed against the judgment dated 19‑3‑1985 of VIIth Senior Civil Judge and Rent Controller, Karachi. The rent application was filed by the landlord Nisar Illahi under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, against tenant Sultan Ahmed on the various grounds. It is stated in the application that Sultan Ahmed is tenant in respect of office and shop bearing No.l/1‑A of M.R. 1/101/2, Kutchi Gali No.3, Marriot Road, Karachi, at a monthly rent of Rs.55. The shop is under the stair case of the main tenement. The Rent Controller by an order dated 13‑9‑1980, dismissed the rent application of the landlord who filed First Rent Appeal No. 961 of 1980 in the High Court. The case was remanded by this Court by an order dated 30‑8‑1984. The Rent Controller by an order dated 19‑3‑1985, in second round, allowed the rent application on the ground of nuisance only. He framed the following issues: (1) Whether there exists relationship of landlord and the tenant between the parties regarding the shop under stair‑case of the building? (2) Whether the tenant is defaulter in payment of rent with effect from May, 1975, as alleged? (3) Whether the tenant is using the premises in question other than the same were let out? (4) Whether the tenant is nuisance to the landlord as neighbour? (5) What should the order be? Issue Nos. 2 and 3, were decided against the landlord and it was held that there exists no relationship of landlord and tenant between the parties regarding the shop under stair case of the building but allowed the rent application on Issue No.4 of nuisance. Before the Rent Controller Sultan Illahi and Mamil Khan were examined on behalf of the landlord while Sultan Ahmad tenant, examined himself. Tenant Sultan Ahmed filed an appeal against the eviction order whereas landlord filed cross‑appeal F.R.A. No. 398 of 1985 against the issues decided in favour of the tenant. I have heard Messrs Dastgir and Burney appearing for the tenant, Sultan Ahmed, and Mr. Nisar Ali for the landlord, Nisar Illahi. Both the appeals are against the common order, therefore, I propose to dispose of these appeals by this single judgment. The contention of Mr: Dastagir is that Nisar Illahi is not a landlord in respect of portion which is being used as shop or cabin under the stair case, therefore, there exists no relationship. It is contended by the learned Counsel that this fact has been denied by the tenant in his written statement as well as in the evidence and landlord has failed to prove his right over this portion under the stair case. It is argued that nuisance has not been proved from the evidence as witness, Mamil Khan himself is running a Hotel which creates a nuisance on the ground floor. Mr. Nisar Ali appearing for the landlord has argued that relationship of Shop is proved but he has not been able to produce the document about the ownership due to illness of the landlord. It is submitted by the learned counsel that nuisance has‑been proved and office has been converted into godown. He has referred to the cases reported in PLJ 1982 (Kar.) 473; 1983 S C M R 548; P L D 1982 SC

453. It is contended by Mr. Nisar Ali that since there is relationship between the tenant and the landlord in respect of shop, therefore, he is bound to pay separate rent for the shop which he has failed, therefore, default has been committed. Attorney, Sultan Illahi, brother of landlord, Nisar Illahi has stated in his evidence that tenancy is in respect of office and shop at Rs. 55 per month and he took the premises for office purpose and afterwards converted it into godown, without his permission where he is using to store chemicals, plastic bags and colour in the godown. He stated that due to this, there is apprehension' of fire and way of other tenants due to storage of goods in the passage creates nuisance. He has stated that case under section 107, Cr.P.C. was registered against the tenant as he quarreled with one Mamil Khan. In his cross‑examination, he stated that property in question was transferred from the Settlement Department. He has admitted that tenant deposited the rent in Court. His witness, Mamil Khan stated that he is tenant of the premises G.10 in the building and Sultan Ahmed, deals in plastic powder, colour and other chemicals which are injurious and explosive in nature which he keeps in the said tenement and other space outside it. There is a passage which is for common use of the occupants of the said tenement including Sultan Ahmed where he keeps and piles up tire bags of his said material in the common passage which creates source of hazard endangering the life and the property of the occupants. He objected to this unauthorised risky acts to which Sultan Ahmed, who abused, therefore, he filed case and he was challaned under section 107, Cr.P.C. He has stated that he has got hotel on the building on the ground floor. Tenant, Sultan Ahmed, in his affidavit denied the allegation and stated that he is tenant in respect of office only, and has not changed the nature or complexion of office. He took the premises for office and is still using the same for that purpose. He has stated that landlord is not the owner of the premises on the ground floor of the building. The cabin in his possession has separate identity and he has applied to the Settlement Department for its transfer which was disallowed on the ground that it could not be treated as tenement. He has produced a copy of order dated 13‑5‑1970. He stated that landlord filed Civil Suit No.1197 of 1975 for injunction in respect of tenement No.l/1‑A Dochhatti under the first floor of the building. The same suit was also dismissed. In support, he produced copy of the judgment. He denied the allega tion of default. In cross‑examination, he has stated that he is tenant since 1964. The Rent Controller has discussed the evidence of the parties and came to the conclusion on Issue No.l, that there exists no relationship between the parties in respect of Cabin/shop. Mr. Nisar Ali,, learned counsel for the landlord has failed to produce any documentary evidence in support showing that Nisar Illahi is the owner of the Cabin and Sultan Ahmed is the tenant excepting that it is mentioned in the rent application. On the other hand, tenant Sultan Ahmed, has produced copy of the order dated 13‑5‑1970, of Deputy Settlement Commissioner, Karachi, whereby he refused to transfer the portion, that it can be treated as a tenement. It is an admitted position that landlord, Nisar Illahi filed Civil Suit No. 1197 of 1975, and the same was dismissed on 28th February, 1979 and it clearly shows that there was litigation between the parties. In these circumstances, without documentary evidence, it cannot be said who is the owner of the space which is being used a shop, on the ground floor, therefore, the Rent Controller has rightly decided the issue that there exists no relationship. The allegation of nuisance is that passage is blocked and office is being used as godown. With regard to the passage as it has been observed that relationship has not been proved and there is an oral evidence of attorney of the landlord and Mamil Khan. The allegation is not supported by any documentary proof. Had' chemical as alleged is being stored, it was incumbent upon the parties to have moved the concerned authorities immediately to avoid some mishap which has not been done so. It is an admitted position that there was litigation between the landlord and the tenant and also between Mamil Khan, who has not been able to place copy of the report of 107, Cr.P. C. proceedings so as to come to the conclusion whether the dispute was about the nuisance. Mamil Khan has admitted that he is running a hotel on the ground floor. It is but natural that for the purpose of Hotel goods and other articles such as chairs and tables must have been kept and he had no reason to go on the first floor. The facts of the cases cited by Mr. Nisar Ali are different. I am of the view that no evidence has been placed on record to prove the nuisance. I, therefore, set aside the order of the Rent Controller on this issue and allow the Appeal No. 265 of 1985. However, it is for the parties to establish their right over the shop or Cabin near the stair case in the Civil Court, if so advised. Now I come to the cross‑appeal filed by the landlord. Mr. Nisa Ali submitted that since both the tenements are separate, therefore, default has been committed. I do not agree with the learned counsel as in the rent application, he has stated that rent for both the portions is fixed as Rs.55. From the evidence, he has not proved any kind of default and Rent Controller has rightly rejected his plea of default. With regard to the conversion of the premises from office to godown, there is only a word of attorney, and Mamil Khan. This evidence has not been believed by the Rent Controller by giving) cogent reasons. I am of the view that there is no evidence to prove that premises have been converted or anything has been done. The order of the Rent Controller on this issue calls for no interference b and First Rent Appeal No.398/85, is dismissed. The up shot of the above discussion is that findings of the Rent Controller on the issue of nuisance are set aside, with the result that rent case of landlord Nisar Illahi is dismissed with no order as to costs. A . A . /S‑178/ K Appeal dismissed.