1991 PLP 1477 (MLD)

(b) Cantonments Rent Restriction Act (XI of 1963)

S. 17(2)(iv)

Nuisance

No issue with reference to alleged nuisance having been framed, no evidence in that respect could be allowed to be brought on record

Even if that irregularity was ignored, business of shoe-making in premises which was alleged to be nuisance was being conducted by tenant since 1977 when premises was let out to him and landlord in 1985 could not come out with plea of nuisance in circumstances. Hasnat Ahmed for Appellant. Nemo for Respondent. Date of hearing: 11th April, 1990. This appeal was directed against the order dated 16-9-1987 passed by the Additional Rent Controller, Lahore Cantonment, whereby eviction petition filed by the respondent-landlord was accepted and the appellant-tenant was ordered to be evicted from the demised premises.

2. That facts necessary for the disposal of this appeal are that the respondent-landlord submitted an eviction petition on 20-7-1985 seeking eviction of the appellant from the verandah let out by the respondent and being used as shop for shoe-making as it was stated to be a nuisance created by the appellant for the reason that the verandah is an integral part of the sitting room of the property as the window opens in the said verandah and that the verandah is required by the respondent in good faith for his own use and occupation. This petition was resisted and the learned Rent Controller framed one issue viz. Whether the petitioner requires the disputed portion for his own use and occupation in good faith? The petitioner entered the witness-box as P.W.1 in support of his own case while the appellant tenant besides appearing himself as R.W.3 produced two witnesses, namely, Muhammad Yameen (R.W.1) and Abdul Ghafoor (R.W.2). Learned Rent Controller thereafter vide impugned order ordered eviction of the appellant holding that the disputed premises were let out to the respondent (appellant) as a verandah and no subsequent alterations would change its original character and that the disputed premises was required in good faith by the petitioner (respondent) for his own use and occupation. This appeal was fixed for hearing yesterday but was adjourned to today in order to provide another opportunity to the learned counsel for the respondent to contest the appeal. Learned counsel for the respondent was awaited till 9-30 a.m. but he has failed to turn up.

3. I have heard the learned counsel for the appellant and have also gone through the record. The Additional Rent Controller has not discussed the evidence produced before him by the parties at all. A perusal of the statement of the landlord alone would show that the impugned order cannot be sustained. The landlord admitted that the verandah was rented out for the purposes of conducting business. It was, therefore, not right to say that subsequent alterations would not change the original character of the tenanted premises. The second finding that the premises are required in good faith is also unfounded and unwarranted as the respondent-landlord admitted in cross-examination that he has another shop in which he is conducting his business. Not even a single word was stated by the landlord to establish that the premises are needed for his business. The case that he made out in the statement is that because of shoe-making business being conducted in the shop since 1977 when the premises were let out he feels disturbed. It is pertinent to note that firstly no issue was framed with reference to the alleged nuisance and in these circumstances the evidence in this respect should not have been allowed to be brought on record. Even if this irregularity is ignored still no case of nuisance is made out as the business of shoe-making is being conducted since 1977 and in these circumstances in July 1985 when eviction petition was filed the respondent-landlord cannot come out with the plea of nuisance. For the reasons given above it is apparent that the Additional Rent Controller acting arbitrarily accepted the eviction petition and ordered eviction of the appellant. The order dated 16-9-1987 is, therefore, set aside. The finding of Additional Rent Controller returned on Issue No.1 is hereby reversed and it is held that the respondent-landlord has failed to prove the issue. The eviction petition is resultantly dismissed. The appeal thus succeeds and is accepted with cost. H.B.T./G-433/L?????????????????????????????????????????????????????????????????????? Appeal accepted.