1. ARSHAD NOOR KHAN, J.--- By this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973,, the petitioner has questioned the legality and validity of the order passed by the learned V-Additional District Judge, Karachi-Central in F.R.A. No,215 of 2004 Imran Shamsi v.
2. Muhammad Qasim whereby the appeal was allowed and the judgment passed by the learned II- Senior Civil Judge and Rent Controller, Karachi-Central in Rent Case No,418 of 2002 Muhammad Qasim v. Abul Aala Shamsi and others has been set aside.
3. The facts, as stated in the petition, in brief are that the petitioner is the landlord of shop situated on Plot No,1-K-20, Nazimabad, Karachi, which was originally rented out to one Muhammad Khalil Shamsi by virtue of tenancy agreement at the rate of Rs,275 per month which was enhanced to Rs,500 per month. The said tenant died leaving behind the opponents as his legal heirs. It is further stated in the ejectment application that the respondents did not pay conservancy charges of Rs,7,000 for the last 20 years and also failed to pay the electric bills to the tune of Rs,25,800, therefore, the electric connection of the shop was disconnected by the K.E.S.C. As such non- payment of conservancy charges and electric bills which are included in the rent, have not been paid wilfully by the respondents. It is further stated in the ejectment application that the premises in question is required for personal bona fide need of the petitioner in good faith, as no other shop is available to him to run his business. It is further stated in the petition that the respondent has sublet the shop in question to some other person without permission of the petitioner and that previously the Rent Application No,268 of 1989 was filed by the petitioner against the mother of the respondents which was allowed but because of death of the mother of the respondents, the respondents filed Rent Appeal No,15 of 1996, which was allowed by the High Court. The petitioner, therefore, sought eviction of the respondents from the premises in question. The respondents were served with the notice of the ejectment application, who filed written statement, inter alia, denying therein the claim of the petitioner. It is further stated in the written statement that the petitioner never demanded conservancy charges of Rs,7,000 and that the petitioner got inflated bills amounting to Rs,45,800 issued by K.E.S.C. Which were not outstanding against them and further stated that the charges of electricity, if any, are payable to the K.E.S.C. Directly, and not to the petitioner. The personal requirement of the petitioner has also been disputed and that previously the shop in question was required for personal use of the some of the petitioners, which was dismissed by the High Court as such the present application was also filed malafidely by the petitioner.
4. After pleading of the parties, they led their evidence in pro and contra to their respective claims and the learned Rent Controller after appraisal of the whole evidence brought on record, allowed the eviction application. The respondent being aggrieved, against the judgment passed by the learned rent Controller filed First Appeal before the learned District Judge who entrusted it to learned V-Additional District Judge, Karachi-Central, who vide order impugned herein, set aside the findings of the learned Rent Controller, hence the present petition.
5. I have heard Mr. Shahid Qadeer, Advocate for the petitioner. The respondents though served, remained absent.
6. The learned counsel for the petitioner vehemently contended that the learned Rent Controller rightly observed that the respondent failed to pay the conservancy charges and electricity bills, which included in the rent and the learned Appellate Court was not justified to upset the said findings of the Rent Controller and that the personal bona fide need of the petitioner was also established which finding has been reversed by the learned Appellate Court, much against evidence available on record, which may be set aside.
7. I have considered the arguments advanced on behalf of the petitioner and have gone through the entire evidence available on record. The petitioner stated in the ejectment application that the respondents failed to pay the conservancy charges amounting to Rs,7,000 and that the electricity bills amounting to Rs,28,600 have not been paid by the respondent which includes in the rent. The petitioner in para.6 of 'his affidavit-in-evidence before the learned Rent Controller has stated that the respondent failed to pay the conservancy charges amounting to Rs,7,000 and electricity bills amount to Rs,28,600 and nowhere in his cross-examination, respondents have challenged that the electricity charges in the sum of Rs,28,600 are not outstanding against them. The cross- examination of the petitioner on this aspect of the matter is clearly silent and the averments contained in the examination-in-chief, if not rebutted in cross-examination would be deemed to have been accepted by the opposite party. Non-denial of the assertion of the petitioner contained in affidavit, in his cross, therefore, remain unshaken. The petitioner has also produced bills issued by the K.E.S.C. Showing outstanding electricity charges against the respondent. The conservancy and electric charges are part of the rent, in view of section 2(i) of the Sindh Rented Premises Ordinance, 1979 and non-payment of the electricity and conservancy charges either to the landlord or directly to the concerned department is wilful default in payment of rent. If any authority is needed, reference may he had to the case of Badruddin v. Muhammad Yousuf reported in 1994 SCM R 1900 and the case of Abdul Ghaffar v. Amtul Saeeda reported in 1999 SCM R 28 wherein the Honourable Supreme Court was pleased to observe that electricity charges includes in the definition of "rent" provided in section 2(i), (ibid), and non-payment of electric charges tantamounts default in payment of rent. The respondents admittedly have not paid the said conservancy and electric charges to the petitioner or to the concerned department directly as such they have committed wilful default in payment of rent and the learned Rent Controller rightly appraised the evidence available on record on this aspect of the matter and the Appellate Court did not assign any cogent and sufficient reason in upsetting the findings of the Rent Controller on this point.
8. The petitioner has also required the premises in question for his personal bona fide use. In his rent application he made such assertion, which has also been incorporated in para.10 of his affidavit- in-evidence stating therein that he possessed no other shop for his personal use and that he is running business in a rented shop and the premises in possession of the respondent is suitable to run his business. The said assertions of the petitioner have also not been controverted by the respondent in his cross. In his cross-examination, the dismissal of earlier Rent Application No,268 of 1989 has been confronted but it is not disputed that the petitioner is running his business in a rented shop and the running of the business by the petitioner in a rented shop fully established that he is entitled for eviction of the respondents on this count also. The learned Rent Controller also appraised the said evidence available on record which has been disturbed by the Appellate Court without examining the evidence available on record.
9. The learned counsel for the petitioner has also stated that the respondents after locking the premises have gone away and the rent has also not been deposited in the Court after December, 2005. He has produced the true copies of the extract from the register of the Rent Controller issued on 31-3-2007 which also shows that the respondents lastly deposited the rent in the month of December, 2005. The absence of respondents, therefore, confirms the contention of the learned counsel for the petitioner that the respondents after locking the premises have gone away therefore, they have also not appeared before this Court to contest the present petition.
10. The record also shows that the petitioner filed ejectment application against opponents namely; Abul Aala Shamsi, Imran Shamsi and Mst, Sualeha Shamsi all sons and daughter of late Muhammad Khalil Shamsi and got ejectment against them. Whereas Imran Shamsi through his attorney Zishan Ahmed Shamsi filed appeal before the learned lower Court and the other parties namely Abul Aala Shamsi and Mst. Sualeha Shamsi have not challenged the order passed by the learned lower Court which shows that the order passed by the learned Rent Controller attains finality against them, furthermore, the respondent cannot add, alter or delete any party from the proceedings as per his ID whim and wish.
11. The learned Rent Controller after appraisal of the whole evidence available on record rightly came to the conclusion that nonpayment of conservancy and electric charges fully tantamount to wilful default on the part of the tenant and the premises required for personal bona fide use by the petitioner, whereas the learned Appellate Court without proper appraisal of the evidence available on record has allowed the appeal filed by the respondent, as such the order passed by the Appellate Court has been passed without lawful authority and could not be sustained.
12. In view of the aforesaid circumstances, the petition is allowed. The judgment passed by the learned V-Additional District Judge, Karachi-Central is set aside and the judgment passed by the learned Rent Controller, dated 25-9-2004 is restored. The respondent No,3 is directed to hand over the vacant possession of the premises in question to the petitioner within 30 (thirty) days hereof, subject to the condition that the rent of the said premises will be deposited in the Court of the Rent Controller.