(1) After hearing the learned counsel for the parties in Court today, the petition was dismissed by a short order, for the reasons to be recorded later on. On the request of the learned counsel for th petitioners, the petitioners were allowed a period of six months commencing from today for vacating the shops in their possession and handing over the vacant possession thereof to the respondent No,1, subject to the condition that the petitioners shall continue to deposit monthly rent with the Rent Controller regularly. It was further directed that in case of default in payment of rent the time allowed shall stand terminated automatically and that if after expiry of six months the petitioners fail to hand over the vacant possession of the shops to the respondent No,1, she shall be entitled to the issuance of writ of possession with police aid if so required, without any notice to the petitioners.
2. Following are the detailed reasons.
3. Briefly stated the relevant facts are that Malik Nazir Hussain, owner/landlord of Shops Nos.13 and 14, Nazir Shopping Centre, Saeedabad, Chandni Chowk, Baldia Town, Karachi, filed ejectment application under section 15 of Sindh Rented Premises Ordinance, 1979, through his daughter/attorney against the petitioners alleging default in payment of rent.
4. The petitioners averred in their written statement that unauthorized person has filed the rent application and that they have not committed any default in payment of rent.
5. On the pleadings of the parties, the following points for determination were framed:--
(1) Whether the rent case is filed by unauthorized person?
(2) Whether the opponent is defaulter in payment of the rent, if yes, from what period?
(3) Whether the opponent is defaulter in payment of water and sewerage charges, if yes, from what period?
(4) What should the order be?
7. The parties led their respective evidence and the learned Ind Senior Civil Judge and Rent Controller, Karachi (West) decided the above points as follows:--
(1) Point No,1 ... Affirmative
(2) Point No,2 ... Not proved.
(3) Point No,3 ... Not proved.
(4) Point No,4 ... Rent application dismissed.
7. The respondent No,1 preferred appeal, which was heard by the learned District and Sessions Judge, Karachi (West) who vide judgment dated 4-2-2002 in R.F.A. No,149 of 2001 reversed the judgment and allowed the ejectment application.
8. Being aggrieved, the petitioners have invoked Constitutional jurisdiction of this Court assailing the judgment of the learned District and Sessions Judge, Karachi (West). The petition was admitted to regular hearing to consider the correctness of the finding given by the learned District and Sessions Judge, Karachi (West) that the petitioners failed to pay water, conservancy and sewerage charges and thereby committed default in payment of rent.
9. Learned counsel for the petitioners has contended that under section 2(1) of the Sindh Rent Premises Ordinance, 1979, the expression rent has been defined to include water charges, electricity charges, and such other charges which are payable by the tenant but are unpaid. He has submitted that it already stands decided by a learned Single Judge of this Court in the case of State Life Insurance Corporation v. Surriya Sajjad 2000 CLC 1813, that the water, sewerage and conservancy charges shall be treated as rent if specifically agreed upon in the tenancy agreement to be paid by the tenant as a part of rent. He has contended that admittedly there is no written agreement of tenancy and no oral evidence has been produced by the landlord to establish that the petitioners specifically agreed to pay the utility charges as part of the rent.
10. Learned counsel for the respondent No,1 is not able to rebut the above contention. It is consequently, held that the payment of water, sewerage and conservancy charges cannot be treated as part of the rent agreed to be paid and consequently non-payment of such charges cannot be held to be default in payment of rent. The finding of the learned District and Sessions Judge, Karachi (West) in this behalf is, therefore, not sustainable in law and is hereby set aside.
11. However, the above finding is not the end of the matter, as two other points have also been agitated and argued at length. The first point is whether the rent application was filed by an unauthorized person. As narrated earlier, the rent application was originally filed through Mst.
Parveen Malik daughter of landlord Malik Nazir Hussain. Learned counsel for the petitioners has submitted that subsequently, Mr. Arif Khan, Advocate, appeared as attorney of the landlord and he has admitted in cross-examination that at the time of execution of General Power of Attorney in favour of Mst. Parveen Malik, the attesting witnesses were not present. However, Mr. Arif Khan, Advocate, has pointed out that the admission on which Mr. Sandhu has placed reliance has not been made in this case but it was a statement made in some other case and the said statement has not been brought on record in the rent proceedings in the present case and consequently, cannot be relied upon in the present case. Learned counsel for the petitioners has frankly conceded to the above factual and legal position. Since the statement on which learned counsel for the petitioners has placed reliance was not recorded in this case and the said statement made in other case was not brought on record of the ejectment proceedings in the present case, therefore, it cannot be allowed to be agitated at this stage. In the ejectment proceedings in the present case neither any question on the invalid execution of general power of attorney was asked nor there is anything on record and consequently the contention of the learned counsel for the petitioners merits no consideration.
12. The second and the most important issue pertains to default in payment of rent. The petitioners alleged before the Rent Controller that for the period from June, 1995 to December, 1998 rent was paid to one Salim son of the landlord but no rent receipt was issued. It was stated by Mr. Iqbal, attorney of the petitioners, that the receipt was issued upto the month of May, 1995 and thereafter, no receipts were issued although the rent was paid, therefore, rent was deposited for this period with the Rent Controller in M.R.C. No,3 of 1999. Learned counsel for the petitioners was asked to explain as to why the rent was paid from June, 1995 to December, 1998 without obtaining duly signed receipt from the person to whom the rent was paid, when earlier the rent receipt was being obtained upto the month of May, 1995. The sole explanation given by the learned counsel is that there were cordial relations between the parties and the level of confidence between them had developed to the extent that issuance of rent receipt was not insisted. He has conceded that there is no documentary or oral evidence to substantiate the contention that the rent was paid to any person authorized by the landlord for the period from June, 1995 to December, 1998. Learned counsel for the petitioners has contended that the ejectment application was filed in the month of August, 1998 although the default in payment of rent is alleged from the month of June, 1995 and the delay in filing the ejectment application gives an inference to the presumption that the landlord had all along received the rent. I am afraid, the contention cannot be accepted because there is no such law warranting the inference. Learned counsel for the petitioners has conceded that the burden to prove that rent was duly tendered to the landlord squarely fell on the shoulders of the tenant and such burden shall not be discharged by the presumption as alleged by him.
Since the petitioners have failed to discharge the onus that they had actually tendered the rent to the landlord for the period from June, 1995 to December, 1998, therefore, the finding of the learned District and Sessions Judge, Karachi (West) to the effect that the petitioners committed default in the payment of rent is not open to any exception. On the contrary, the version of the petitioners that they deposited the rent in M.R.C. No,3 of 1999 for the period from June, 1995 to December, 1998 gives an inference of non-payment of rent for the above period.
13. For the foregoing reasons, I do not find any illegality in the finding of the learned District Judge, Karachi (West) on the point of default in payment of rent on the part of the petitioners. The impugned judgment is upheld. The petition is without substance, which stands dismissed accordingly.