' SHAHID ANWAR BAJWA, J.---An application under section 11(2) of the Sindh Rented Premises Ordinance, 1979 was filed by the present respondents against the present petitioners, Tenancy was in respect of various tenements in the building known as Iqbal Market on Plot No,SD-3, Block-G, North Nazimabad Karachi. It was stated in the application that previously the present petitioner had filed rent case against the present respondents which was compromised between the parties.
(To the compromise we shall return later). It was pleaded in the application that it was clearly stated in the compromise that the rent shall include property taxes and K.M.C. Tax, betterment tax and other local taxes imposed by the local authorities or Provincial Government. It was pleaded in the application that the present petitioner No,2 got the water line disconnected in contravention of the provisions of section 11(1) of SRPO.
1979. Consequently it was prayed that landlord may be directed to restore water and conversancy services of the building and also punish the landlord for contravention of section 11(2) of SRPO.
2. Written-statement were filed on behalf of the present petitioners, It was stated in the written- statement that the present petitioner had not disconnected water connection and it was the Karachi Water and Sewerage Board who had disconnected water connection. It was further pleaded in the written-statement that the compromise was effected with only one of the tenants and therefore, provisions of the compromise are not applicable to the other tenants. Evidence was recorded and thereafter the trial Court vide order, dated 17-10-2003 allowed the application. The trial Court framed the following issues:-- "(1) Whether the present Rent Case is not maintainable as framed?
(2) Whether the rent of applicants include Water and Conservancy Charges?
(3) Whether the respondent No,2 has or has caused to disconnect the water connections of applicants illegally, if so, its effect?
(4) What should the final order be?"
3. On the crucial second issue (the second issue) the trial held as under:-- "It is a matter of record that in the year, 1991 the present respondent No,1 through his brother and duly constituted attorney namely Khawaja Muhammad Ilyas filed Rent Cases bearing Nos. 989, 998 and 992 and others in the Court of Controller against Zaitoon, Haider and Asma/present Applicants and others, On 9-9-1994 the said cases stand disposed of in terms of compromise arrived between the parties. According to said recorded compromise the rate of rent was enhanced by retrospective effect. It is clearly mentioned in the said A Compromise that the "said rate of rent shall include property and KMC taxes, betterment tax, Water and Conservancy Charges and all other levies imposed by the local authority and Provincial Government. The said compromise was duly signed/verified before the Court by the parties. In these circumstances now it does not lie into the mouth of present respondents that the said condition is not applicable to all the tenants/Applicants. One cannot blow hot and cold in the same breath. In written reply the respondents have admitted that this condition is applicable to one tenant but in evidence the respondent has tried to deny the said compromise totally by the facts with unclean hands and mala fide intention. This Court is of the firm view that the rate of present rent of the applicants include Water and Conservancy Charges."
4. Being aggrieved by the order of the trial Court appeal was filed and the appellate Court vide order, dated 16-8-2005 upheld the order passed by the trial Court. Hence this petition. The learned counsel for the petitioner made the following submissions:--
(1) That compromise was entered into with only one of the present respondents and is not in respect of all the respondents. Genuineness of signatures on the compromise was denied.
(2) Rent does not include water charges therefore, water charges are in any case are responsibility of the tenant. Learned counsel relied upon Syed Adil Hussaina v. Mst. Majda 2000 CLC 1982, Muhammad Saleem v. Provincial Election Authority Sindh at Karachi PLD 1985 Kar. 135, Yagoob Ali, v.
Islmail, 1987 CLC 526, Karachi Electric Supply Corporation Ltd. v. VIth Rent Controller, Karachi and another, PLD 1981 Kar. 660, Badaruddin v. Muhammad Yousuf, 1991 CLC 949, Muhammad Hussain Patel v. Habib Wali Muhammad and others PLD 1981 SC 1.
5. Learned counsel for the private respondents made the following submissions:--
(1) In the absence of agreement (i.e, compromise) the tenants are not liable to pay water charges.
He relied upon State Life Insurance Corporation of Pakistan v. MRs, Surraya Sajjad, 2000 CLC 1813, MRs, Z Shirazee v. Abdul Qadir, 1993 CLC 528, Anis Malik v. Sayeda Binte Asghar, 1989 CLC 678 and Haseen v. Muhammad Ibrahim, 1984 CLC 791. In any case, even before the compromise, the tenants had never paid the water charges.
(2) All the 22 cases were compromised.
(3) That the compromise was duly signed by advocates for both the parties as well as Sabiq Baba who had received the property as gift from his son Ashfaq Baba, the present Petitioner No, 1.
6. I have considered the arguments advanced by the learned counsel and have also gone through the case law as well as documents available on record.
7. The first question to be decided is the scope of the compromise and its extent. Compromise is available at page 149 of the case file and relevant part of the compromise is in the following words:-- "(1) That the rate of rent at present of Flat No,12 is Rs,250 per month which will be increased to Rs,400 per monthly w.e.f, January, 1994. The said rent shall include property and K.M.C. Taxes, Betterment Tax, Water and Conservancy Charges and all other levies imposed by the Local Authority and Provincial Government."
8. It was specifically pleaded by the applicants in the application under section 11(2) of the Sindh Rented Premises Ordinance, 1979 that compromise was effected in respect of all the tenants. When written-statement was filed by the resent petitioner, the present petitioner stated that compromise application was neither signed by him nor his attorney. He further stated that he was personally not present in the Court at the time of compromise nor his attorney was present. He stated that his attorney had not signed the compromise and some other person who was a stranger to the case and who had not been appointed or authorised by him to appear in the case consented to the compromise. As far as, this particular aspect is concerned on each of the compromise there is an order of the Court in the following words:-- "Parties and their counsel present parties admit their contents of compromise application and their signatures counsel also signed the compromise application and he stated that as per contents of compromise application they have arrived into (sic) compromise. In light of said statement Rent application filed by the applicants stands compromised (sic) and disposed of in light of compromise."
9. This order was passed on 9-3-1994. If someone had obtained this order by misrepresentation or by a fraudulent act it was available to the present petitioner to file appropriate application under section 12(2), C.P.C. Admittedly no such application has been filed. After 10 years it does not lie in the mouth of the petitioner to contend that compromise was not authorized or was fraudulent.
Much moreso it is signed by the counsel for the petitioner in that case. Therefore, the compromise is binding on the petitioner in respect of private respondents. Four copies of compromises and orders thereon were produced in evidence. Landlord had not come clear in his written-statement.
That was why the two Courts below have accepted that the compromises were effected in all cases and I do not think I should interfere with their conclusions.
10. Coming to the question whether rent included water charges or not. In Syed Adil Hussain's case a single Judge of this Court held that there was no written tenancy agreement between the parties by which landlord was supposed to make payment of the water and conservancy charges. ' Since water and conservancy charges are included in the definition of rent as defined in section 2(i), in the absence of agreement contrary it was held to be responsibility of the tenant to pay the charges and if failure to do so is proved the tenant is liable to be declared as defaulter.
Muhammad Saleem's case pertained to election as Chairman of a Town Committee and therefore is not relevant to the point in controversy in this matter. Yaqoob Ali's case is though a case under the Sindh Rented Premises Ordinance, 1979 but it is on two points; firstly that the amenities previously available to the tenant were disconnected by subsequent landlord and no protest or objection was made by tenant for a period of two years of the discontinuance, filing of application by such tenant for restoration after the landlord had filed ejectment application against him would lack good faith on part of the tenant, and secondly if there is a default in payment of rent it could not be waived by mere acceptance of rent by the landlord. However, where landlord accepted rent fully knowing that default had been committed and kept quite for a unreasonable period, landlord could be deemed to have waived the default. In Karachi Electric Supply Corporation's case service was disconnected by KESC and an application against landlord for restoration of power was filed. It was held that such power of Rent Controller was predicated upon a voluntary act on part of landlord for disconnecting or cause the supply to be discontinued on account of certain default on part of landlord. Rent Controller while directing restoration of service, it was held, must ascertain cause for discontinuation.
11. Muhammad Hussain Patel's case is a case more to the point. This case pertained to the provisions of the West Pakistan .Urban Rent Restrictions Ordinance, 1959. The Supreme Court held that word 'rent' was not defined in that statute and therefore, the Court must fall back upon the definition given in the other statutes but such statutes must be pari material. Thereafter it was held as under:-- "(30). As a result of the above discussion we hold that the term "rent due" or the purposes of clause
(i) of section 13(2) of the Rent Ordinance (i.e, for constituting a ground for ejectment on default of payment of the same), means not only the money specifically described as 'rent' in the Rent Deed or the Lease Agreement, but also includes all other moneys (except fresh taxes or amounts of increase in the existing taxes) agreed to be paid by the tenants to the landlord."
12. In Badaruddin's case it was held that charges for electricity used by the tenant were to be paid according to the reading of the sub-meter installed in the premises. Since the tenant failed to pay these charges, the authorities disconnected electricity of the tenant. It was held that in such a situation landlord could not be held to be responsible for discontinuance of electricity.
13. On the other hand, learned counsel for the respondent relied upon Surrya Sajjad's case (supra) where it was held as under:-- "(11) Nevertheless the main trust of Mian Mushtaq Ahmad's argument was premised upon the statutory definition of rent, which, according to him, had an overriding effect on the terms of the agreement, in section 2(i) of the Ordinance which read as under:-- "Rent includes water, electricity charges and such other charges which are payable by the tenant, but are unpaid."
(13) It may be pertinent to state that the above quoted provision does not invariably require that water charges must always be treated as part of rent but the later part thereof clearly shows that they are to be so treated only when they are payable by the tenant. In other words the statute does not mandate that in all cases such charges must be borne by the tenant but leaves it to the parties to decide as to which of them is liable for payment and they would be treated as rent only when the tenant is so liable. Moreover, the word, 'includes' indicates that when such charges are to be payable by the tenant they are deem 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 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. In Shirazee's case it was held as under:-- "The plain reading of the above definition shows that if the tenant had agreed to pay water charges, electricity charges and such other charges, in that eventuality they shall be treated to be included in the rent payable. The plain language of the above definition does not in any manner cast any statutory liability on the tenant for payment of the said or other charges in absence of any agreement to the said effect. In the repealed Sindh Urban Rent Restrictions Ordinance, 1959 (Ordinance VI of 1959) (hereinafter referred to as the repealed Ordinance), the term `rent' was not defined but, however, in the Explanation clause to section 13(2)(ii), it was provided that where the water charges or electricity charges or both are payable by the tenant to the landlord, such charges shall be deemed rent. While replacing the late Ordinance the above purpose has been achieved by definition of the term rent provided in the Sindh Rented Premises Ordinance, 1979."
15. In the present case relationship in question in respect of question relating to water charges has to be governed by the agreement. Its relevant part has been quoted above. It specifically stated that the rent shall include, inter alia, water charges. The tenant is burdened with the responsibility of payment of rent. Such payment by tenant to the landlord is deemed to include water charges and therefore it was responsibility of D the landlord to pay water charges and the landlord failed to perform his obligation and it was in consequence of such failure on the part of the landlord that water connection was disconnected. Therefore, judgments by both the Courts below are in accordance with the record and in consonance with the law.
16. Be that as it may, in writ petition the High Court must be most reluctant to undertake assessm ent of evidence and disturb concurrent findings of fact by the Courts below unless misreading or non-reading of evidence is pointed out or the Courts below have passed an order contrary to law and have failed to act in accordance with and principle of law laid down by the superior judiciary. The writ petition is therefore, dismissed.