' Aggrieved by the concurrent decisions of the learned Rent Controller and the learned 1st Appellate Court holding that the relationship of "tenant and landlord existed between the appellant and the respondent, and in consequence ordering the ejectment of the appellant from the residential accommodation in his possession, the appellant has preferred this second appeal under section 15(4) of the West Pakistan Urban Rent Restriction Ordinance, 1959:
2. The dispute in this case is in respect of house No, 170, Dastgir Colony, Block No, 9, Federal '13' Area, Karachi. By a written agreement, dated 1st February, 1970 the appellant became the tenant of the respondent in respect of the above house on rent at the rate of Rs, 50 per month plus all taxes and assessm ents, including urban property tax. This agreement was signed on behalf of respondent Ghulam Abbas by his attorney, Sirajuddin Butt. On 25th. March, 1974, attorney Sirajuddin Butt on behalf of respondent Ghulam Abbas, filed an application before the learned Rent Controller, Karachi, seeking the eviction of the appellant on the ground of default in the payment of rent since April, 1973 and also on the ground that the appellant had materially damaged the aforesaid house by making unauthorised Pakka construction without written consent or permission of the landlord.
The learned Rent Controller framed a preliminary issue as to whether the relationship of landlord and tenant existed between the parties. The contention of the appellant was that the original owner of the property was Mst. Ghulam Fatima, the mother of Mr. Ghulam Abbas, who had since died, but no notice of the transfer of the property to Ghulam Abbas had been given to him as required by section 13-A of the Rent Restriction Ordinance. The evidence led in the case established that whereas Afst. Ghulam Fatima had died in the year 1968, the appellant was inducted as tenant, vide a written agreement, in February 1970. In view of this position, the learned Rent Controller held that relationship of landlord and tenant existed between the parties. In view of this finding, the learned Rent Controller struck off the defence of the appellant and ordered him to handover vacant possession of the premises in dispute to the respondent relying upon the decision of the Lahore High Court reported in PLD 1974 Lah.
489. This decision of the learned Rent Controller was upheld by the learned 1st Appellate Court. The finding that relationship of landlord and tenant between the parties is established is based on tangible evidence and appears to me to be not only sound but unassailable. The learned counsel for the appellant was unable to point out any infirmity in this finding or any evidence indicating a contrary position.
3. Mr. Khalique A. Niazi, the learned counsel for the appellant, however, submitted that even if the finding be considered correct that the appellant was the tenant of the respondent, there should have been further proceedings and a specific issue should have been struck in regard A to the question whiher there was default committed by the appellant in the payment of rent. The learned counsel submitted that this was not a case in which the appellant had taken the position that no rent was payable by him. On the contrary, his case had throughout been that he had been paying rent to the respondent, though the rent was being paid on behalf of the respondent's mother, who, according to the appellant, was the real owner of the property. The statement of accounts filed by the appellant also shows that according to him the rent for the house in question had been paid upto February, 1974 that is for the month immediately preceding the month in which the eviction application had been filed.
4. Mr. Hussain Adil Khatri submitted that there was tangible evidence to show that the appellant could not have paid the rent of the premises to the respondent. In support of this contention he relied upon the power of attorney filed by the respondent which has been executed at Belgrade where the respondent was then serving. There is, however, no tangible evidence to show whether the respondent throughout the period for which the appellant is alleged to have defaulted in the payment of rent was outside the country or-in Pakistan. It may also be possible that though the respondent may be outside Pakistan, yi the rent may be paid to him or into his account.
5. It was urged by the learned counsel for the respondent that in any case the appellant has failed to pay the taxes for the house which according to the lease agreement he was bound to pay. As already indicated, according to the lease agreement the tenant was required to pay all taxes and assessm ents, including Urban Immovable property tax and the water tax to the K. D. A. Now, so far as taxes and assessm ents are concerned. They do not fall within the ambit of "rent" for the purposes of section 13 of the Rent Restriction Ordinance. No doubt, water charges or electricity charges are to he deemed to be rent for the purposes of section 13 of the Rent Restriction Ordinance, but only in those cases where the same are payable to the landlord. The lease agreement, however, does not provide that water charges were to be payable to the landlord but on the contrary seems to indicate that the same were to be paid directly to the authority concerned. This is clear from the requirement in the lease deed that the receipts after payment were to be shown to the lessor. It might also be mentioned that in the statement of account furnished by the respondent, water charges are not shown. In any case, the quantum of water charges payable by the appellant is still not known.
6. Since the appellant's case is that he has paid rent upto date for the house in his occupation the mere fact that he denied the relationship of landlord and tenant would not make him liable for eviction on this sole ground. The question of the effect of denial of relationship of landlord and tenant in case where eviction of the tenant is sought on the ground of default in the payment of rent has been considered in two decisions of this Court, reported in PLD 1975 Kar. 616 and PLD 1976 Kar.
921. In the former case, it was held that after it had been established that due notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 198, had been served upon the tenant, who had denied the receipt of such notice the case ought to have been remanded to the Controller to decide the application on merits and the ejectment of the tenant should not have been forthwith ordered on the ground that the tenant had raised false plea of notice and denied tenancy. In the latter case, the decision reported in PLD 1974 Lah. 489, was expressly dissented from, and it was held that the question of the propriety of recording evidence, on the question of tenant's. Failure-to pay rent must always depend on the facts and circumstances of the case and in cases where the quantum of rent due is disputed,. Or where justification is pleaded for not paying the rent found due, it would be the duty of' the Rent Controller to record evidence.
7. Since in the instant case, there is a dispute between the parties not only as to the quantum of rent but also on the question whether the rent has or has not been paid, I would set aside the orders of the two lower Courts ordering the eviction of the appellant, and remand the case to the learned Rent Controller for deciding the case on merits.- The costs of this appeal will be the costs in the case.