' SARMAD JALAL OSMANY, J.---This Appeal impugns the Judgment of a learned Single Judge in Chambers of the Sindh High Court in C.P. No,S-237 of 2003 filed by the respondent No,1 through her legal heirs which was allowed and the concurrent findings both of the learned Rent Controller as well as the Appellate Court as to default by the 'appellant in payment of water and conservancy charges, set aside.
2. Briefly stated the facts of the matter are that the respondent No,1 had filed two rent cases against the predecessor in interest of the appellant i,e, one Khaliq Ahmed with regard to a flat and shop in the same building on the basis of personal bona fide need as well as default in payment of water and conservancy charges. Vide common order the learned Rent Controller dismissed both the Rent Applications. Being dissatisfied the respondent No,1 filed first Rent Appeals before the concerned District Judge which also met the same fate and hence finally the respondent No,1 filed C.P. No, S-237 of 2003 in which only the case of the shop was in issue as in the meanwhile the appellant had vacated the flat in question upon orders of the Sindh High Court in C.P. No,236 of 2003 filed by the respondent No,
1. So also before the learned Sindh High Court the ground of personal bona fide need was not pressed as in the meanwhile the respondent No,1 had died and the matter progressed only on the issue of default for non-payment of water and conservancy charges. As noted above the learned Single Judge in Chambers found that such default had occurred and hence allowed the Petition.
3. Mr. Mushtaq A. Memon, learned Advocate Supreme Court appearing for the appellant has firstly contended that the tenancy was a statutory one and hence there is no written agreement between the parties for the payment of water and conservancy charges. The only occasion when these charges were demanded from the appellant was when the rent application was filed. In fact per learned Advocate Supreme Court even in the memo of the rent application there is no specific allegation that the charges were ever paid by the appellant. Consequently if these charges were never demanded they are not payable. In this respect learned Advocate Supreme Court has referred to the definition of "Rent" contained in section 2(i) of the Sindh Rented Premises Ordinance, 1979 which clearly stipulates that this term includes water and conservancy charges if payable. In this regard learned Advocate Supreme Court has referred to the case of State Life Insurance Corporation of Pakistan v. Mrs. Surraya Sajjad (2000 CLC 1813). Continuing he has submitted that the rent receipt produced in evidence by the respondent No,1 which contained a printed clause on the reverse vis-a-vis payment of water and conservancy charges was never signed by the appellant and hence could not constitute an agreement between the parties for payment of the same. In support of this contention learned Advocate Supreme Court has relied upon the cases of Hakim Ali v. Muhammad Salim (1992 SCM R 46) and. Haji Muhammad Usman v. Yousuf Ali Muhammad Bhai (1986 CLC 380).
4. Learned Advocate Supreme Court has further submitted that the bill of water charges produced in evidence is for the whole building but the respondent No,1 is only occupying one shop.
Consequently this could never amount to a demand for the payment of the said charges. In any event the said bill is from the Water and Sewerage Board and nowhere in the evidence or in the pleadings has it ever been asserted that it was sent to the appellant for the purpose of payment.
5. Learned ASC's next contention is that even when there is a specific agreement for payment of the water charges and the same were never paid from the inception of the tenancy then non- payment would not amount to default as it would be presumed that said agreement had been deviated from during the course of the tenancy. In support of this submission he has placed reliance on Muhammad Ahmad v. Shafique Ahmad (1987 CLC 679), Hyder Ali v. Messrs Nizam Construction and Estate Dealers (1996 CLC 1040) and Zakir Hussain v. Masood Ahmed Ansari (1995 CLC 1000).
6. Finally learned Advocate Supreme Court has submitted that as no specific plea was raised by the respondent No,1 in the rent application vis-a-vis payment of water and conservancy charges in the absence of which the same could not be elaborated through evidence. In this regard he has placed reliance on Muhammad Arif v. Mrs. Anwar Jehan (2000 SCM R 1960) and Abdul Ghani through L.Rs, v. Messrs Caltex Oil Pakistan Limited (2010 SCM R 771).
7. In rebuttal Mr. Zahid F. Ibrahim, learned Advocate Supreme Court appearing for the respondent No,1 has submitted that in para 19 of the affidavit in evidence filed by the respondent No,1, it has been specifically stated that the appellant did agree to pay the water and conservancy charges by signing the rent receipt in question as per the clause contained on the reverse whereby she was obliged to pay same This was not rebutted under cross-examination. Similarly in para 9 of the rent application an amount of Rs,4,176 has been demanded as water and conservancy charges for the years 1993-94, 1994-95 and 1995-96 out of a total of Rs,25,056 which was for the whole building.
This means that the appellant's share was only Rs,4,176 and she was obliged to pay the same as reiterated in para No,9 of the rent application. However in the reply statement filed by the appellant there is only a bare denial and nothing had been stated as to non-existence of any agreement to pay the same or as to any practice for non-payment etc. As to the cases cited by Mr. Mushtaq M.
Memon, Mr. Zahid F. Ebrahim has submitted that therein the tenant had denied that the printed terms and conditions on the rent receipt were binding on him while entering in the witness box whereas in the present case the tenant never led any evidence altogether. Learned ASC's next contention is that where the relationship of landlord and tenant is denied and the same is dismissed by the Rent Controller eviction automatically follows. For this proposition he has placed reliance on Ghulam Samdani v. Abdul Hameed (1992 SCM R 1170) and Malik Safdar Hussain v. Lutuf Ahmad Khan and others (1997 SCM R 567), Muhammad Rafiq and others v. Khalid Rauf and others (1984 CLC 2135) and Sher Afgan v. Sheikh Anjum Iqbal (PLD 2004 SC 671).
8. In rebuttal Mr. Mushtaq A. Memon, learned Advocate Supreme Court has submitted that when tenancy has been denied and the same has been established by the Rent Controller then the same does not automatically render the tenant to eviction without holding any further proceedings. In the present case although the appellant had denied the existence of such relationship but at the same time also denied that she had committed any default. Hence even though the relationship may have been established yet the issue of default had to be decided by the Rent Controller which was done. For this proposition he has relied upon Muhammad Riaz Chughtai v. Mst. Irshad Begum (1993 M LD 707).
9. We have heard both the learned ASCs for the parties and perused the record with their assistance.
10. It would be seen that the tenancy between the parties is a statutory one and up till the filing of the rent case there is nothing on the record to establish that either the water and conservancy charges were ever demanded from the appellant or for that matter paid. In the rent application in Para 9 thereof it has been averred that "the applicant received a notice from the Water and Sewerage Board Karachi that the Opponent/Tenant has not paid and cleared the Water and Sewerage Charges amounting to Rs,4,176 out of year 1993-94, 1994-95 and 1995-96 in respect of the whole building." A copy of the bill sent by the Karachi Water and Sewerage Board has been appended to the rent application. Similarly in para No,19 of the Affidavit in evidence filed by the respondent No,1 it has been averred that it was the duty of the respondent No,1 to pay Water and Conservancy charges as she had agreed to do so at the time of inception of the tenancy and also had signed the rent receipt thereby accepting the terms and conditions printed on the reverse of the same. A copy of the rent receipt has been produced in evidence. Under cross-examination the respondent No,1 has admitted that the rent receipt has not been signed by the appellant and this can be confirmed from a bare perusal of the same. She has also admitted that she is not sure whether there was any written agreement between the parties or that any notice was served upon the appellant with regard to the non-payment of water charges etc. Or that she had any receipts whereby such charges were ever paid. She has also admitted that the bill in question of Karachi Water and Sewerage Board was for the entire building.
11. In view of the pleadings of the parties and the evidence available on the record it is therefore abundantly clear that neither was there any agreement between the parties to pay the water charges and nor these were ever paid by the appellant. Consequently in the absence of the same eviction could not be sought by suddenly approaching the Rent Controller on the allegation that the water charges had not been paid. The case of Sher Afgan (Supra) is distinguishable as there this Court found that the water charges had been agreed to be paid by the tenant, which as observed above, is not the case in the present matter.
12. As to Mr. Zahid F. Ebrahim's contention that once the relationship which had been denied by the appellant/tenant had been established then this results in automatic eviction of the tenant, it would be seen that in the present case it had also been asserted by the appellant that there had been no default. Consequently where this may have been established yet the issue of default had to be adjudicated by the Rent Controller which was done.
13. For all the foregoing reasons, we allow this appeal and set aside the impugned Judgment.