1988 PLP 1559 (MLD)

This is an appeal directed against the judgment, dated 13‑8‑1987 passed by the learned IIIrd Senior Civil Judge/Rent Controller, Karachi East, in Rent Case No.1809 of 1985, allowing the respondent's application for ejectment on the aground of personal requirement and nuisance. The appellant being aggrieved by the above judgment has filed the present appeal.

2. In support of the above appeal, Mr.Khawaja Sharful Islam, learned counsel for the appellant, has urged as follows:‑ (i) That the finding on the ground of nuisance is not sustainable in law. (ii) That the finding on the question of personal requirement is contrary to the evidence on record. On the other hand Mr.Hassan Jafar, learned counsel for the respondent, has submitted that the findings of the two Courts below on the above two issues are in consonance with law.

3. Adverting to the first submission, it may be observed that the learned Rent Controller has recorded the finding on the question of nuisance by taking into consideration the various criminal proceedings initiated by the appellant against the respondent. In my view, the nuisance referred to in the Ordinance is a nuisance with reference to the use of the premises, which will not include any illegal act, which may be foreign to the use of the premises.

4. Mr.Hassan Jafar, learned counsel for the respondent, has referred to the case of Mst.Nasreen Rashid v. Mst.Asghari Begum and others, reported in P L D 1983 S C 521, in which the Honourable Supreme Court while declining leave to appeal against the judgment a; the High Court maintained the finding of the Courts below that keeping of the dogs constituted nuisance.

5. In my view, the above case is distinguishable as the act complained of was in relation to the premises. I would, therefore. reverse the finding of the learned Rent Controller on the above question.

6. As regards the personal requirement the admitted position seems to be that originally there were 8 shops. Two other tenants are occupying two shops each and one shop is in possession of the present appellant. The remaining 3 shops seem to be on the back side of the building without having any opening on the main road. This has been shown in Ex.P/13, which is a sketch and which also indicates that the 3 shops which are shown as store are surrounded on two sites by the shops. The shop in question is situated on the main side of the road and is adjacent to the premises shown as store. It also seems that the respondent has running sugarcane juice machine in front of one of the shops on footpath on a space measuring about 8' x 3'. It has been urged by Mr.Khawaja Sharful Islam, learned counsel for the appellant, vehemently that the respondent had filed ejectment application against the other two tenants inter alia on the ground of personal requirement, which had been dismissed by the (earned Rent Controller and which orders were maintained by the High Court. It has been, therefore, submitted by him that the alleged bona fide requirement of the respondent stands disproved by the above judgment in the other two cases. It has also been submitted by him that even against the present appellant, the respondent had filed the previous case namely, Rent Case No.5554 of 1980, which was withdrawn in 1981. On the other hand Mr.Hassan Jafar, learned counsel for the respondent, has submitted that in para. 4 of the affidavit at page 49 of the trial Court file, the respondent has explained the reasons as to why the other two rent cases were dismissed against the two tenants and that the same does not negate the personal bona fide requirement of the respondent. It has been further submitted by him that the previous rent application was withdrawn as there was settlement between the parties from which the appellant backed out and, therefore, the respondent has to file the fresh application.

7. In the absence of a copy of the judgment of the High Court in the above two rent cases, it cannot be urged that there was any finding of the High Court or of the Rent Controller in those two cases to the effect that the respondent's applications were not bona fide.

8. The appellant has filed an application, which is fixed today for orders, in which prayer has been made for holding further enquiry. I am not inclined to grant the above application because the case was fixed today for regular hearing. I would, therefore, dismiss the above application.

9. As regards the finding recorded by the learned Rent Controller on the) personal requirement I am inclined to concur with the learned Rent Controller that the respondent was able to prove his personal bona fide requirement. The factum that the respondent's husband is running a sugarcane juice stall on the footpath has not been negatived by evidence in rebuttal and also the factum that the 3 shops, which are in possession of the respondent are used as the store for keeping sugar cane. I have already observed hereinabove that the sketch Ex.P‑13 indicates that the premises in possession of the respondent does not have opening on the side of the road and that the shop in question is situated adjacent to the above store and, therefore, it cannot be urged that the respondent does not require the shop.

10. I would, therefore, dismiss the above appeal but there will be no order as to costs. However, I allow 6 months‑time to the appellant to hand‑over the vacant) possession to the respondent on the condition that he will continue to deposit rent in terms of the learned Rent Controller's order, failing which the respondent shall be at liberty to file an execution application before expiry of the above period and also further on the condition that in case the appellant fails to hand over the vacant possession after the expiry of 6 months period, the learned Rent Controller shall issue writ of possession without any further order. M.Y.H./M‑472/K Appeal dismissed.