1. ' NADEEM AZHAR SIDDIQI, J.---By filing this, petition the petitioners have challenged the order, dated 6-12-2005 passed by the IV Rent Controller, Karachi South dismissing the ejectment application filed by the petitioners and the judgment, dated 9-10-2008 passed by the II Additional District Judge, Karachi South, whereby the F.R.A. Filed by the petitioners against the dismissal of the ejectment application was also dismissed.
2. ' In short, the facts of the case are that the petitioners claiming to be landlords of the rented premises in dispute filed ejectment application against the tenant/respondent No,1 on the ground of default in payment of rent, non-payment of water and conservancy charges and addition and alteration in the rented premises impairing the value and utility thereof. The petitioners claimed the rent of the demised premises at the rate of Rs,25,000 per month and default from 1st April, 1998 onwards and have pleaded that there is a written tenancy agreement between the parties.
3. Respondent No,1 has filed written statement admitting the existence of tenancy between the parties. He, however, denied the rate of rent at the rate of Rs,25,000. The other allegations in the rent case were also denied.
4. ' To prove their respective contentions, the petitioners examined their attorney, namely, Moiez Kagazwala while on behalf of respondent No,1, its director, namely, Waqar Ahmed, was examined.
5. ' The learned Rent Controller, after hearing the parties, dismissed the ejectment application vide order, dated 6-12-2005. The appeal filed by the petitioners against the said order was also dismissed by the appellate Court vide order, dated 9-10-2008. Hence this petition.
6. ' I have heard the learned counsel for the parties and have gone through the record made available before me.
7. ' Learned counsel for the petitioners submits that the two Courts below have failed to consider the terms and conditions of the written tenancy agreement between the parties which provided for payment of rent in advance on 5th of each calendar month. He then submits that admittedly the rent for the month of July, 1998 was for the first time tendered through money order, dated 25-8- 1998 and rent for the months of July and August, 1998 was tendered on 8-9-1998 after committing default. He then submits that the learned appellate Court has not considered the bills of water and conservancy charges produced before it by the petitioners. He submits that by not considering the same the appellate Court has not exercised the jurisdiction vested in it properly and in accordance with law. He then submits that the petitioner has also proved that the respondent No,1 in violation of the terms and conditions of the tenancy agreement, has failed to maintain the tenement and by erecting the loft and by removing the partition wall has impaired the value and utility of the premises. He has relied on the following cases:--
(1) 1992 SCMR 2400 (Shezan Ltd. v. Abdul Ghaffar).
(2) 1999 SCMR 28 PLD 1999 Kar. 54 (Abdul Ghafoor v. Mst. Amtul Saeeda).
(3) 1994 SCMR 1900 (Badruddin v. M. Yousuf), and
(4) PLD 1999 Karachi 54 (Asif Ali Zardari v. Federation of Pakistan).
8. ' On the other hand, learned counsel for respondent No,1 states that the petitioner against the concurrent findings of fact recorded by the two Courts below is not maintainable. He submits that both the Courts below have properly assessed the evidence available on record and have rightly dismissed the ejectment application filed by the petitioner. He then submits that the terms and conditions of an expired tenancy agreement are not binding upon the respondent No,1 and that the respondent No,1 was not liable to pay the rent in advance and the rent for the month of July and August 1998 was tendered to the petitioner within time provided under the Statute. He then submits that the petitioner has failed to prove that the respondent No 1 is liable to pay water and conservancy as according to the learned counsel the same is included in the rent and is not payable separately. He then submits that the petitioner has failed to prove that the value of the premises has been impaired.
9. ' In this matter the relationship of landlord and tenant and the execution of the tenancy agreement is not under dispute. The rate of rent is disputed. The petitioner claimed rent at the rate of Rs,25,000 per month whereas the respondent No 1 claims that the monthly rent was Res.2500. From the evidence it is proved that the petitioner has failed to establish that the rate of rent was enhanced to Rs,25,000 per month. The petitioner has admitted that the previously the rate of rent was Rs,2000 and the same was ennanced to Rs,2500. In the absence of any proof to the effect that the rate of rent was enhanced from Rs,2500 to Rs,25,000 the rent payable by the respondent No,1 to the petitioner is Rs,2500.
10. ' The petitioner has produced the copy of the Agreement, dated 30-8-1974 the clause 3 of which contains that the rent is payable in advance to the landlord by the tenant, on or before fifth of each calendar month. The agreement has not been questioned or challenged by the respondent No,1 during the cross-examination of the petitioner and the said document has gone unchallenged. In his cross-examination the respondent No,1' has admitted that Exh.A/5 viz. Tenancy Agreement, dated 30-8-1974 was last agreement. The respondent No,1 in his cross-examination has further admitted that the rent was payable in advance on or before 5th of each calendar month. The undisputed tenancy agreement and the above piece of evidence is sufficient to hold that the rent is payable in advance in terms of Tenancy Agreement.
11. ' Now it is to be seen whether the agreed rent at the rate of Rs,2500 per month has been paid within time provided in the agreement or not.
12. ' In this matter admittedly the rent for the month of July, 1998 was sent through money order, dated 25-8-1998 which is contrary to the specific terms of the agreement as well as the period provided in the law itself.
13. ' Section 10(1) of the Ordinance provides that the rent shall, in the absence of any date fixed in this behalf by mutual agreement between the landlord and the tenant, be paid not later 10th of the month next following the month for which it is due.
14. ' Clause (ii) of subsection (2) of section 15 of the Ordinance provides that if the tenant has failed to pay rent in respect of a premises in his possession within 15 days after the expiry of the period fixed by mutual agreement between the tenant and the landlord for payment of rent, or in the absence of such agreement within 60 days after the rent has become due for payment the landlord can seek his eviction.
15. ' In this matter the parties by their mutual consent have fixed 5th day of, each calendar month for payment of rent in advance and law gives a grace period of 15 days for payment of rent after the expiry of the period fixed by mutual agreement. In this matter the rent for the month of July becomes due and payable on 5th July, 1998 and can be paid to the landlord by 20th July, 1998 whereas the same was tendered through money order, dated 25-8-1998 after committing default as provided under the Statute. This default is irrespective of the dispute with regard to the rate of rent. The respondent No,1 was bound to pay the rent as agreed under the Tenancy Agreement.
16. There is no evidence produced by Respondent No,1 to show that before tendering sent through money order on 25-8-1998 any efforts have been made by him to tender/pay the rent to the petitioner within the time prescribed in the agreement as well as in the relevant statute. Both the Courts below have not properly. Considered this aspect of the case and have dismissed the ejectment application ignoring the tenancy agreement available on record, thus have failed to exercise jurisdiction vested in them properly and in accordance with law.
17. ' In various judgments of the Superior Courts it has been held that expiry of the agreement will not absolve the tenant from paying the rent in terms of the agreement. In spite of expiry of the agreement the terms and conditions will continue to operate, to the extent that they were not repugnant to the law. Nothing has been demonstrated that the terms and conditions by which the rent is payable in advance is contrary or repugnant to law.
18. ' In the reported case of Shezam Ltd. v. Abdul Ghaffar the Hon'ble Supreme Court has held that terms of an expired agreement as such, continue in operation to the extent they were not repugnant to the law. In the same judgment it has been held that provisions relating to payment of rent in the Ordinance should be strictly construed in favour of the landlord. In other reported case of Abdul Ghafoor v. Amtul Saeeda, it was held that default would occur if rent was not paid by tenant within fifteen days Of such period, notwithstanding the fact that no written agreement was produced by landlord in proof of his assertion.
19. ' So far as the water and conservancy charges are concerned the same is now included in definition of the term "rent". Respondent No,1 has pleaded that the same is included in the rent and is not payable separately and by pleading so it has pleaded against the law and the burden is upon him to prove.
20. ' There is a written agreement between the parties which does not show that the landlords have taken the responsibility to pay water an conservancy charges upon themselves and in absence of any proof to the contrary it is the duty of the respondent No,1 to pay those charges. So far as the charges are concerned it is proved that the petitioner has not produced any bills of those charges before the Rent Controller to show that what amount the respondent No,1 was liable to pay and in absence of this, the finding recorded by the learned Rent Controller cannot be challenged by filing this petition. The photocopies of the bills which were produced before the appellate Court are also of no help as no permission has been sought from the appellate Court for producing additional evidence. The respondent No,1 is liable to pay the charges in terms of the definition of rent provided in the Sindh Rented Premises Ordinance, 1979. In the reported case of Badruddin v. Muhammad Yousuf the Hon'ble Supreme Court has held that "the definition of "rent" given in clause (i) of section 2 of the Ordinance includes water charges, electricity charges, and such other charges which are payable by the tenant, but are unpaid. Since the liability to pay rent under the Ordinance is on tenant, he is liable to pay rent as defined under above clause (1) of section 2, which includes electricity charges." The respondent No,1 is liable to pay the charges but default cannot be claimed unless the landlord raised the demand and provides bills to the tenant for his satisfaction. It has come on record that no bills were provided to the respondent No,1 and no proper demand has been raised and merely mentioning the dues in the counterfoil of the rent receipt is not sufficient to show that demand has been raised.
21. ' The petitioner has failed to prove by cogent evidence that the tenant has committed such acts which amount to impairing the value and utility of the said premises. Mere statement of the petitioner is not sufficient in this regard.
22. ' In view of the above, this petition is allowed and the orders of the two courts below are set aside and the ejectment application is allowed to the extent of non-payment of rent from July, 1998 onwards. Since the respondent No,1 is occupying a commercial premises he is directed to vacate the shop within sixty (60) days from the date of this order.