1. ' NADEEM AZHAR SIDDIQI, J.---By filing this petition the petitioner has challenged the order dated 22- 1-2009 passed by the learned VI Rent Controller, Karachi Central in Rent Case No,366 of 2008 on an application under section 16(1), Sindh Rented Premises Ordinance, 1979 filed by the respondent No,1, allowing the same.
2. ' In short, the facts of the case are that respondent No,1 filed ejectment application under section 15 of the Sindh Rented Premises Ordinance, 1979 for the ejectment of the petitioner on the ground of default in payment of rent, electric charges, water, conservancy and fire charges and on the ground of personal need of the respondent No,
1. The petitioner filed written statement and denied the averments made in the ejectment application and stated that the water, conservancy, fire and sewerage charges being not agreed by the petitioner even with his out going landlord, and as there is no privity of contract for payment of such charges by the petitioner with respondent No,1 he is not liable to pay such charges. During the pendency of ejectment application an application under section 16(1) of the Ordinance was filed by respondent No,1 which was allowed vide order dated 22-1-2009 and the petitioner was directed to deposit the utility charges amounting to Rs,28,564 and monthly rent as under:-- "The opponent has contended that there is no rent agreement making him liable to pay the charges of water, sewerage and conservancy and other utility charges however, no such agreement has been produced between the applicant and outgoing owner excluding the opponent from such liability. In absence of any document from the opponent side, I am of the considered view that the opponent who is running the Dry Cleaners business in the two shops and he is consuming the water and [using] the sewerage, cannot be said not liable to pay any charges and free from such liability. The applicant's counsel has produced the notice issued by the Karachi Water and Sewerage Board and in case the applicant fails to make payment of such charges, the opponent and the other tenant would naturally suffer from not supply of water. In my considered view the opponent is liable to pay such utility charges which are calculated by the applicant at the rate of Rs,28,564. Let opponent make such payment within one month's time. As far as the arrears of monthly rent are concerned, the opponent had paid Rs,26,000 at the rate of Rs,2000 p.m. And the first payment is dated 28-5-2008 Rs,6000 (sic). The opponent claims to have paid the monthly rent to the out going owner for the month of February 2008, thus the applicant is at liberty to withdraw such rent deposited in M.R.C. No,338/2008. However, the opponent is directed to deposit the monthly rent at the rate of Rs,2000 in future in this case on or before 10th of each Calendar month and he shall also continue to pay the utility charges being share against the shops in his possession out of 7 shops in the building, without any default. The application stands disposed of in the above terms."
3. ' It is against the above tentative rent order that the petitioner has filed this petition.
4. ' The learned counsel for the petitioner states that since there was no agreement between the parties to the effect that the tenant/petitioner was not liable to pay any other charges except rent, the learned Rent Controller has no jurisdiction to pass the tentative rent order directing the petitioner to pay water, conservancy and fire charges and in absence of a specific agreement between the parties for payment of such charges by the tenant is against the law and is perverse.
5. ' Learned counsel further submitted that the respondent No,1 had acquired the demised property from its previous owner in February, 2008 and notice under section 18 of the Ordinance was given to the petitioner/tenant in April, 2008 in which also there was no mention about any agreement between the petitioner and the previous owner with regard to payment of such charges by the petitioner/tenant. He then submits that the learned Rent Controller was impressed by the fact that the petitioner is running dry-cleaning business in the demised premises and directed the petitioner to pay the said charges.
6. ' In support of his contention the learned counsel for the petitioner relied upon a DB judgment of this Court in the reported case of Muhammad Alam Baloch 1989 M LD 2294 and a judgment of a learned Single Judge of this Court in the reported case of State life Insurance Corp. v. Mrs. Surraya Sajjad (2000 CLC 1813).
7. ' I have heard the learned counsel for the petitioner and have perused the record.
8. ' The dispute is with regard to the direction issued by the learned Rent Controller to the petitioner for depositing water, conservancy and fire charges. In the impugned order the learned Rent Controller has observed that the petitioner in support of his contention that he is not liable to pay the charges as above has not produced any agreement which excludes him from payment of such liability. It was further observed in the said order that in the absence of any document from the tenant's side the petitioner/tenant, who is running dry cleaning business in the two shops and is consuming the water and sewerage cannot say that he is not liable to pay any charges in that regard and is free from such liability.
9. Admittedly, there is no written agreement between the parties regarding payment or non- payment of utility charges. From perusal of the definition of rent provided in the Ordinance it appears that the expression "rent" includes water charges, electricity charges and such other charges which are payable by the tenant. From the definition it appears that the water and other charges were made part of the rent and the tenant is liable to pay the same.
10. ' The definition of the term "rent", as provided in the Sindh Rented Premises Ordinance, is a under:-- "rent" includes water charges, electricity charges and such other charges which are payable by the tenant but are not paid."
11. The petitioner claims that there is no agreement between the parties to the effect that the petitioner/tenant is liable to pay such other charges as 'defined in the definition of the term "rent".
12. The petitioner is pleading against the specific provision of law and onus is upon him to prove that he is not liable to pay the same and his mere words are not sufficient to discharge this burden.
13. ' In the reported case of State Life Insurance (supra), it has been held as under:-- "Moreover, the word, "includes" indicates that when such charges are to be payable by the tenant they are deemed to constitute part of rent. It would thus, follow that unless the agreement expressly required. Payment of water charges in addition to the agreed rent to be paid by the tenant the composite amount stated to be rent of the premises would include such charges. In either case therefore, I am satisfied that there is no separate obligation on the part of the respondent to pay water charges in terms of the definition of the expression 'rent' and the agreement between the parties."
14. ' The facts of the above case are distinguishable from the facts of the present case. The judgment in the cited case was pronounced in a rent appeal and not in a constitutional petition. Secondly, in that case there was an agreement between the parties fixing the liabilities of the parties, whereas in this case there is no written agreement fixing the liabilities between the parties. The landlord claims that the charges are part of rent while the petitioner denies that the same form part of rent.
15. This controversy at the stage of passing of the order under section 16(1) C of the Ordinance cannot be decided and appears to be a factual dispute which can only be decided after recording evidence. Such factual controversy cannot be decided by filing this petition as D factual controversies cannot be decided in writ jurisdiction of this Court.
16. ' In the other reported case of Haji Muhammad Alam Baloch (supra), the matter in dispute was whether the Rent Controller can pass order for deposit of time barred rent. In that context the learned DB of this Court has held as under:-- "The only point on which we are inclined to exercise constitutional jurisdiction is that in view of the clear pronouncement by the Honourable Supreme Court and this Court that Rent Controller is not competent to order the deposit of time-bared rent, the Rent Controller could not have passed the impugned order and, therefore, patently they are without jurisdiction or in excess of jurisdiction."
17. While making the above observations the learned DB has held that constitutional jurisdiction cannot be pressed into service where dispute relates to question of rate of rent or the period of the arrears of rent when it is within the limitation period or even the question of relationship as these are disputed questions of fact. But where the question is purely legal and the question is also settled by the superior courts writ jurisdiction can be pressed into service. It is now settled law that writ jurisdiction can only be invoked where it is shown that the order is perverse or while passing the order the subordinate Courts have committed some illegality and irregularity. The disputed questions of fact as to the contractual liabilities of the parties cannot be adequately resolved by filing writ petitions.
18. The question whether the tenant is liable to pay other charges is a disputed question of fact and cannot be resolved in this petition.
19. ' In view of the above, this petition has no merits and is accordingly dismissed in limine along with the listed application.