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 FRA filed by the petitioners against the dismissal of the ejectment application was also dismissed.
2. To prove their respective contentions, the petitioners examined their attorney, namely, Moiez Kagazawala while on behalf of respondent No.1, its director, namely, Waqar Ahmed, was examined.
3. 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.
4. 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 (Shezam Ltd. v. Abdul Ghaffar).
(2) 1999 SCMR 28 PLD 1999 Kar 54 (Abdul Ghafoor v. Mst. Amant ul Saeeda).
(3) 1994 SCMR 1900 (Badruddin v. M. Yousuf) and
(4) PLD 1999 Karachi 54 (Asif Ali Zardari v. Federation of Pakistan).
7. On the other hand, learned counsel for respondent No.1 states that the petition 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.
5. 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.' during the cross-examination of the petitioner and the said document has gone unchallenged.
6. 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.
7. 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.
8. 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 is due;- Clause (ii) of sub-section (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.
9. So far as the water and conservancy charges are concerned the same is now included in the 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.
10. There is a written agreement between the parties which does not show that the landlords have taken the responsibility to pay water and 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 abence of this the finding recorded by the learned Rent Controller cannot be challenged by filing this petition. The photo copies of , the bill 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 "rent" given in clause (i) of Section 2 of the Ordinance includes water charges, electricity charge, 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 charge". 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.
11. 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.