ABDUL HUSSAIN Versus KUBRA BAI

1. The appellant Abdul Hussain is a tenant of Mst. Kubra Bai, the respondent herein, of a residential premises No.2 of Kubra Manzil, situated on Plot No.12/6, Saifee Market, Model Colony, Karachi, owned by her. The appellant was inducted as a tenant on agreed rent of Rs.90 per month excluding water and electricity charges.

2. Mst. Khubra Bai on 14‑7‑1986 filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979 in the Court of 1st Senior Civil Judge and Rent Controller,, Karachi (East) for ejectment of her tenant on the ground that he had committed default in payment of rent from February 1985 to June 1986 and for the month of February 1983 in addition to that period. She further claimed that the tenant did not pay water charges from 1978/79 to 1985/86 as well:

3. The application was resisted by the tenant. He asserted that the rent was regularly deposited firstly in the Court of Controller of Rent, Malir Cantonment in Rent Case No.15/83 and thereafter in the Misc. Rent Case No.1066/88 filed before the Rent Controller, Karachi. He further stated in the written statement that he was paying water bills directly to the Cantonment Board and he did not pay the same because the supply of water was disconnected by the Cantonment Board and no bills were issued to him. He generally denied the allegations and stated that he is not liable to be ejected from the premises in question.

4. Both the parties led evidence both oral and documentary and the Rent Controller by his order passed on 3‑2‑1988 in Rent Case No.527/86 held that the appellant had not committed default in payment of rent but as the appellant had admitted that he had not paid the water charges she held that water connection was disconnected due to the non‑payment of water charges by the appellant and thereby he had committed default in payment of rent. On the basis of such finding she allowed the ejectment application, and directed the appellant to hand over vacant possession of the premises to the respondent within 60 days from ‑the date of her order.

5. Mr. S. Hassan Asghar Rizvi, Advocate for the appellant, contends that admittedly the premises in question was situated within the limits of the Malir Cantonment till 1‑7‑1987 when the area was transferred and brought within the limits of Karachi Municipal Corporation. The period of default alleged in the application pertains to a period when the premises was within the jurisdiction of Malir Cantonment Board and the parties for the relevant period were governed by the Cantonments Act, 1924 and Cantonments Rent Restriction Act, 1963. The term "Rent" is not defined under Cantonments Rent Restriction Act, 1963 and, therefore, unlike its definition given in the Sindh Rented Premises Ordinance, 1979, water charges shall not be included in rent. He further contended that water in the premises was provided by the Malir Cantonment Board under section 220 of Cantonments Act, .1924 to the occupiers of a premises and occupiers are directly responsible for payment of water charges under section 65 of the Cantonments Act, 1924. He further pointed out that till today water has not been restored and water charges are not being paid by the appellant. Under the circumstances, according to him, it cannot be said that the appellant has failed to pay the rent due to non‑payment of water charges to the Malir Cantonment Board. The relationship between the parties for the relevant period will be governed by the provisions of the two enactments mentioned above.

6. Mr. Badrudduja, Advocate for the respondent, contends that the appellant was inducted on the basis of a tenancy agreement (not produced on record by either‑of the parties) clearly stipulates payment of water charges in addition to the agreed rent. He, however, admits that in spite of such stipulation in the agreement, the appellant was paying water charges directly to Malir Cantonment Board and not to the respondent. In any event, according to him, water was disconnected due to the non‑payment of water charges by the appellant. He further pointed out that although the West Pakistan Urban Rent Restriction Ordinance, 1959 did not define "rent" it was held in‑a case reported in 1983 CLC 845 that water charges shall be deemed to be rent. He further contended that the Rent Controller did not apply his mind carefully to the facts of the case as the appellant had not paid rent for the month of February 1983 and burden of proving such fact was erroneously shifted to him and on that score alone he will be liable for ejectment.

7. Admittedly the alleged default in payment of water charges relates to a period when the rented premises were situated with in the limits of Malir Cantonment and the Cantonment Board was responsible for supply of water either to the owners of buildings within the area or directly to occupiers of the buildings under section 220 of the Cantonments Act, 1924. Water charges are recoverable directly from the occupiers of such buildings under section 65 of that Act. In cases where such charges are not paid consequences as provided in its section 224 shall take place.

8. Admittedly the appellant in the present case was directly given water connection for the premises in dispute and was paying the water charges directly to the Cantonment Board under an arrangement authorised by a special enactment. Failure to pay water charges under the circumstance cannot be considered to be default in payment of rent particularly when the Cantonments Rent Restriction Act unlike Sindh Rented Premises Ordinance, 1979 has not provided any definition* of term "Rent" giving it an extended meaning as it is given in the latter enactment. The case referred to, by the Advocate for the respondent is distinguishable, as it does not relate to premises situated within any cantonment area.

9. As regards the second contention advanced by the advocate for respondent the Rent Controller has recorded the finding on the basis of the evidence adduced by the respondent which did not prove that the rent for the month of February 1983, not paid by the appellant and no exception can be taken to such finding.

10. For the foregoing reasons the order of the Rent Controller impugned in this appeal is set aside and appeal allowed.

11. H.B.T./A‑1128/K Appeal allowed.