ANIS MALIK Versus BINT-A ASGHAR

1. This appeal is directed against the order of the learned IIIrd Senior Civil Judge/ASJ/Rent Controller, Karachi (West) dated 28‑5‑1986, whereby he has allowed the ejectment application filed by the respondent (R.C.No.2865 of 1985) for the eviction of the appellant from Plot No.2 on commercial Plot No.SD‑13‑A North Nazimabad, Karachi, on the ground of default in payment of water and conservancy charges and directed the appellant to hand over vacant possession of the premises in question to the respondent within 60 days from the date of order. The facts of case are short and simple. The appellant was inducted into premises in question as tenant by the respondent by virtue of an agreement of tenancy dated 15‑5‑1972 executed between the parties. The rent of the premises was agreed to be paid at the rate of Rs.250 p.m. In clause 5 of the agreement which is written in Urdu it is stated as under:‑

2. The appellant admittedly did not pay any amount towards water charges, conservancy charges and fire rate at any time after the commencement of tenancy till the filing of the ejectment application. On 29‑7‑1984 (sic) on the ground of non‑payment of the said charges. In paras. 2 and 3 of the ejectment application it is stated as under:‑

2. That the opponent has failed to pay the full amount of rent to the applicant since Ist July, 1972 as the opponent has not paid water charges, conservancy charges and fire rate amounting to Rs.1914 for the period Ist July, 1972 to 30th June, It‑64 which is also a part of the rent.

3. That the applicant has been demanding these water charges for over many years but the opponent has failed to pay water charges and thus he has committed default in payment of the rent according to the provision laid down in S.R.P.O.

10. The appellant filed written statement in denial of the respondent's claim and his case was, in so far as the payment of water and conservancy charges is concerned, that it is the duty of. the respondent to pay the same to the concerned authorities. ‑ Before filing the application the respondent had served, firstly, a notice dated 18‑4‑1981 which is for the sake of easy reference is reproduced, in extenso below:‑

3. Notice

4. Registered A.D.

5. "Azhar Lodge"

6. 29/13, Muhammad Ali Co‑operative

7. Housing Society, Ltd.‑Karachi‑8

8. Dear Tenant.

9. Sub: WATER CHARGES .

10. You are aware that new retail water rates have been notified by the Karachi Metropolitan Corporation and you have to pay water charges according to the tenancy agreement with you. From Ist April, 1981, as approved by the Government of Sind and published in 'DAWN' of Ist April, 1981 you have to pay water rates according to the built up area of the flat in your possession and it will be as under:‑

(a) For flat's 801 to 1000 Sq. ft. Rs.15 per month. Please pay the same with your monthly rent starting Ist April 1981. This is without prejudice to my claim for water charges of the last three years from Ist April 1973 to 31st March 1981 on proportionate basis levied on the building by KMC, for the said period, as you have not yet paid the same with the monthly rent. Please acknowledge receipt of this notice. Yours faithfully Sd/‑ Mrs S. Binte Asghar Land Lady.

(1) Mr.Anis Malik Flat No.2.

(2) Mr. Muhammad Nasim Flat No. 3.

(3) Mr. Riazuddin Flat No.5.

(4) Mr. Ashfaque Rehman Flat No.6, residing at 'Asghar Market' North Nazimabad SD‑13‑A Karachi". Later on, another notice dated 14‑3‑1982 was also addressed by the respondent to the applicant which is also reproduced hereunder:‑ Registered .4

11. 29/13 Muhammad Ali Housing Society Ltd. Karachi‑8.

12. Tenants of

13. No. S.D.13‑A.N.N.

14. Karachi.

15. Enclosed herewith is photostat of KMC bill for water tax regarding year 1981‑82. The water tax charged for 1981‑82 is

16. Rs.2,520 and on enquiry from the KMC office the break up is as under:‑

17. Restauran' (ground floor) @ Rs. 120 p.m. Rs.1,440.00

18. First floor flats (3 flats) Rs. 15 p. m. Rs. 540.00

19. Second floor flats (3 flats) Rs. 15 p.m Rs. 540.00

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20. Rs.2,520.00

(2) An amount of Rs.421.11 has also been charged as difference for three months for year 1980‑81 for water charges to increase in water rate from Ist April 1981.

21. Since water charges according to agreements are liable to be borne by the tenants, you are requested to please pay Rs.2,520 plus Rs. 421.11 i.e. Rs.2,941.11 by 25 March, 1982 that I may deposit the K . M. C . bill in time as shown in the bill.

22. Please note that the supply of water may be disconnected by K . M . C . if the payment is not made in time.

23. Sd/‑Land Lady

24. Mrs. Binte Asghar

25. Mr. Abis Malik son of Major Ghulam Murtaza proportionate of

26. Rs.421.11 Rs.180.00

27. 30.00

28. Rs. two hundred and ten only ------------

29. Rs.210.00"

30. The respondent examined her husband and attorney Agha Jaffar Kazmi in support of her case. No evidence was led by the appellant. He had filed his own affidavit‑in‑evidence, but since ' he did hot make himself available for cross‑examination, 'it has _been ignored by the trial Court. I have heard the arguments of 'the learned counsel for the parties. It was contended by Mr. Muhammad Sadiq, the learned counsel for the appellant that by virtue of tenancy agreement the appellant was obliged to pay a consolidated sum of Rs.250 p.m. towards rent besides the electricity and gas charges. The appellant has been making the payment of the agreed rent and the electricity and water charges regularly and no default had been committed in respect thereof. He also urged with vehemence that no demand towards payment of the water charges, conservancy charges and fire rate had been made by the respondent from the appellant at any time. It was for the first time in 1981 that a notice dated 18‑4‑1981 was addressed to the appellant which was followed by another notice dated 14‑3‑1983. The appellant had made replies to these notices denying his liability to pay the said charges. Mr. S.M. Abbas, learned counsel for the respondent, on the other hand, submitted that by virtue of definition of "rent" as given by section 2(i) of the Sind Rented Premises Ordinance, 1979, rent includes water charges, electricity charges and such other charges which are payable by the tenant but are unpaid. He then draw my attention to the paragraph 5 of the above agreement executed between the parties to show that after the words 'bills of electricity and gas' there is a mention of the word 'etcetera' which means that the water charges and conservancy charges were payable by the appellant.

31. I have given due consideration to the submissions made by the learned counsel for the parties. It is specifically provided in the section 17 of Sind Rented Premises Ordinance, 1979 that no landlord shall charge or receive rent in respect of any premises, at the rate A higher than that mutually agreed upon by the parties. In the instant case, as already stated, the mutually agreed rent is Rs.25P P.m besides the electricity and gas charges. No doubt the word to appears in paragraph 5 of the agreement but it does not lend support to the case of the respondent inasmuch as admittedly no payments towards water and conservancy charges have been made by the appellant to the respondent right from the induction of the tenancy in 1972 up to the date of the filing of the application. The conduct of parties itself lends support to the case of the appellant that he was not responsible to make payment of water and conservancy charges. I further find that during his cross‑examination the witness of the respondent has clearly admitted that the opponent never paid K ‑M. C taxes. He has further deposed "that I did not demand the same from the opponent from 16‑5‑1972 to 30‑6‑1972" then he voluntarily added the at that time the K.M.C. taxes were only Rs.793 for the whole building and from 1‑4‑1981 the tax PS were increased to Rs‑3.300. Under the facts and circumstances of the case I am clearly of the opinion that by virtue of the agreement of tenancy dated 15‑5‑1972 it was mutually agreed between the parties that the appellant shall pay rent at the rate of Rs.250 p.m. (then the meaning of the terms 'rent' as given in the Rent Act included water charges and such other charges as are payable by the tenant), besides electricity and gas bills. If the respondent was of the opinion that because of increase in water and conservancy taxes etc. there was some justification of enhancement of rent then she should have taken appropriate action under the Ordinance for fixation of fair rent. She cannot seek vacation of the appellant on the ground of default in payment of the said taxes. The‑ learned. Rent Controller has thus committed an error in allowing the application on the ground of default in payment of above said taxes. I, therefore, allow the appeal and set aside the impugned order, and leave the parties to bear their own costs. '

32. A‑449k. Appeal allowed.