P L D 1988 Karachi 369 (PLP)

In this first rent appeal is called in question order dated 26th January, 1985 of Learned XII Senior Civil Judge and Rent Controller, whereby ejectment application filed under section 15 of the Sind Rented Premises Ordinance 1979 (hereinafter to be referred as the said Ordinance) has been dismissed. During the pendency of appeal, landlord died and his legal representatives have been brought on the record. In the Court of Rent Controller ejectment application was pressed on three issues namely default, nuisance and personal need and all the issues were found against the landlord. Appeal is being pressed only on two grounds of nuisance and personal need. In the Court of Rent Controller landlord Muhammad Alam examined himself and two other witnesses Muhammad Anwar and Noor Muhammad. On the other hand tenant Sultan Shah examined himself and two other witnesses Kala Khan and Muhammad Hussain. It would be worthwhile to mention that landlord also produced on the record affidavits of two other witnesses namely Syed Abdul Kabir and Muhammad Hussain but they were not made available for cross‑examination as such their evidence is excluded from consideration as incomplete for want of cross- examination. Under section 15 of the said Ordinance one ground for eviction is that tenant has indulged in such activities as are causing nuisance to the neighbours. If eviction is sought by the landlord on the ground of nuisance then undoubtedly burden is upon landlord to prove that tenant has indulged into activities which are causing nuisance to the neighbours. Landlord has to establish the fact of nuisance by production of positive evidence and he has to discharge this burden in a satisfactory manner 'and when Court is satisfied that landlord has proved the nuisance only then eviction can be allowed on that ground. On 'the question of nuisance, allegation is made by landlord in pats. 5 of the application for eviction in a very vague manner in words "opponent has indulged in causing troubles for the applicant and is instantly causing nuisance to the neighbours". No further clarification was made as to what kind of nuisance was made, when and where or even what was that nuisance which was being made. This allegation was denied in the written statement. It may be mentioned that eviction application was filed on 30‑5‑1982 and written statement was filed on 31‑7‑1982. For the first time landlord filed his affidavit of evidence on 16‑12‑1982 in which in pats. 9 he elaborated "nuisance" by saying that tenant is habitual of playing with loud sound vulgar songs on loudspeaker causing embarrassment to women‑folks in the area, which is constant nuisance for the neighbours. In the cross -examination landlord has admitted that he has not lodged any report with police against the tenant regarding use of loudspeaker and playing of vulgar records. Police Station is not far from the disputed premises. Landlord has further admitted that tenant has been playing such records since 1978. He could not hear sound of records in his premises. He has alleged that Mohalla people also have objected. Landlord has stated in his cross‑examination that there are three shops in the premises out of which two are in occupation of tenant and third is a hotel. Apart from these shops there is also a pan shop in the premises. Landlord has admitted that he resides in the said plot and entrance to his house is through the hotel. Landlord's witness Muhammad Anwar stated in his affidavit of evidence that tenant sits on the platform of his shop with garlands round his neck and plays loudly on loudspeaker song "Jiski bivi moti oaks bhi bars nam hai" and does not lower the volume even at the time of Azan and Nimaz. In the cross‑examination this witness admitted that shop of tenant existed since 8 or 9 years and from the very beginning tenant has been playing such vulgar songs loudly. This witness also claimed to be regular Nimazi and stated that Isha prayer ends at 5‑15 p. m. again said in the afternoon and then said it ends at night. He also said that he did not know how many Rakats were there in Isha prayer. He admitted that there is hotel near disputed shop and there are 8 or 10 shops in the same lane. He has admitted that he never lodged report at the police station against tenant. This witness also admitted that he has friendship with son of the landlord. Noor Muhammad is another witness produced by landlord on this point. He has also made the same allegation. Further he has admitted that from the disputed shop at 200 paces is Sohail Music Centre, at 400 paces is Eastern Music House and at 15 paces is New Golden Electric Decoration. He also admitted that Abdul Wahid Music Centre is very close to the disputed shop. He has admitted that no report was filed with police. On the other hand plea, taken by the tenant in his evidence is that tenancy of ship in dispute dates back to the year 1977 and the method of tenancy is that there is always tenancy agreement executed between him and landlord for It months and every year this agreement is renewed and if landlord really felt offended by nuisance as claimed by him, why die he renew agreement of tenancy from year to year? Tenant has examined witness Muhammad Hussain, who is neighbour and lives near tire house of landlord. According to him dispute between landlord and tenant is on account of demand for enhanced rent. He has also stated that there are four or five music shops in the neighbourhood, where music is being played. Kalay Khan is another witness produced by tenant. He is neighbour of both parties. He has supported tenant and stated that tenant plays a small cassette‑player to hear Qawali. He has also stated that there are 5/6 cassette shops in the neighbourhood where records are being played. Appraisal of evidence mentioned above tends to show that allegation of nuisance as asserted by landlord is not proved. It is admitted position that record playing is gang on since 1977 but each 1 year landlord renews tenancy agreement with Tenant. This most; certainly downplays grievance of landlord abut alleged nuisance. In the circumstances I hold that landlord has failed to prove nuisance. On the issue of requirement of premises for personal need, burden was upon landlord to prove the need in which he has failed. In the eviction application filed in the Court of Rent Controller, he said that he wanted the shop for his own use. In the evidence he shifted his plea and stated that he wanted shop for his son, whom he did not name specifically and admitted that he did not' give details in the application. In the circumstances even the assertion about the need is vague. He had admitted in cross‑examination that he has mentioned neither in his application nor in his affidavit as to for which son he wanted shop in dispute. Evidence on the record show that landlord has failed to prove his bona fide need. For the facts and reasons stated above I uphold the impugned order and dismiss the appeal. A.A./M‑438/K Appeal dismissed.