1. WAHEEDUDDIN AHMAD, J.-This appeal by special leave is directed against the judgment of the former High Court of West Pakistan, Karachi Bench, Karachi, in Civil Revision Application No. 30 of 1967, dated the 27th November 1967. By this judgment, a learned Single Judge of the High Court, set aside the judgment and decree under appeal and directed that the plaint be returned to plaintiff for presentation to the proper Court. The revision petition was accepted with no order as to costs.
2. The respondent is a tenant of the appellant in plot No. 21, situated in Iftikhar Bano Building on Plots Nos. 6.And 7/15, Firdous Colony, Karachi, at a monthly rent of Rs.150, exclusive of taxes. The Karachi Municipal Corporation, resumed the areas including the area of Firdous Colony where the plot is situated and imposed water tax and conservancy charges on the property at 11-- % of the rent with effect from the 13th of October 1958. The owners of buildings in Firdous Colony challenged the resumption of this area by Karachi Municipal Corporation in civil suit which was dismissed on the 1st June 1964. Consequently the Karachi Municipal Corporation issued demand notices to all the owners, including the appellant Mst. Iftikhar Bano for the payment of water and conservancy tax at the rate of 1 l J % from 1958-59 to 1963-64 and threatened that in case of default, the water- connections of the buildings will be cut off after three days. The appellant's case was that in order to provide necessary amenities to her tenant, she paid the entire amount of conservancy and water tax to the Municipal Committee and claimed reimburse--ment from the respondent tenant for the amount paid on his behalf.
3. In this connection, the appellant served a notice of demand of Rs.707.76 and asked the respondent to pay the same but the respondent refused to pay the amount. Thereupon, the appellant instituted Suit No. 453 of 1965 before the Judge, Small Cause Court for recovery of Rs.707.76 on account of water-tax and conservancy charges for the year 1958-59 to 1963-64. The suit was resisted by the respondent. He asserted that the payment of these taxes was the responsibility of the landlord and that he was not liable to pay anything beyond agreed rent. It was further pleaded that the demand for additional sum amounts to increase in rent and as such was illegal and was barred under the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959.
4. The respondent raised various preliminary objections in his written statement. He pleaded that the suit was not maintainable and the amount being less than Its. 1,000, the Judge, Small Cause Court had no jurisdiction and the suit should have been filed before the Conciliation Court under the Conciliation Courts Ordinance of 1961. The suit came up for hearing before the learned Judge, Small Cause Court on the 4th October 1966. The learned Judge directed that the parties should come to some compromise as has been done by the other tenants in other cases. The case was postponed to be taken up on the same day at 1-00 p. m. It appears that the respondent failed to appear and an ex pared decree was passed against him. The learned trial judge observed that the case was kept till the close of the day and was decreed with costs at that time. The respondent made an application for setting aside the ex parte decree dated the 4th October 1966, onthe 22October 1966 under section 17 of the Provincial Small Cause Courts Act of 1887. The learned trial Judge directed that the money maybe deposited within stipulated time. This order was not complied with and on the 14th November 1966, the respondent made another application that the time limit may be extended but this application was rejected on the 15th November 1966.
5. The matter was then taken to the High Court in revisional proceedings. The High Court came to the conclusion that the question of law involved in this case goes to the root of jurisdic--tion of the learned Judge, Small Cause Court under the Provincial Small Cause Courts Act read with Conciliation Courts Ordinance, 1961, and set aside the order of the Small Cause Judge and direct--ed the parties to present the plaint to the Conciliation Court.
6. The appellant has challenged this order in this appeal before us.
7. Special leave was granted in this case to consider the follow--ing contentions:
(1) That the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959, were not applicable to the case and that the landlady was entitled to realise a portion of water tax etc., from the tenant in accordance with the provision of subsection (5) of section 101 of the City of Karachi Municipal Act, 1933, and
(2) that the provisions of section 3 (1) (a) of the Conciliation Courts Ordinance, 1961, would not operate as a bar to the suit.
8. Mr. Abdul Kadir Lakhani, learned counsel for the appellant has contended that the learned Single Judge has erred in treating the claim for recovery of taxes as that of enhancement of rent and has erred in holding that the jurisdiction of the Small Cause Court is barred within the meaning of section 7 of Second Schedule under section 15 of the Provincial Small Cause Courts Act. According to the learned counsel, the amount in dispute was for the payment of water and conservancy taxes at the rate of 11I from 1958-59 to 1963-64 and, therefore, it is covered by section 101 (5) of the Karachi Municipal Act, 1933, which reads as under:- "In the absence of any agreement to the contrary between the owner and occupier of any building or land, tiny general-tax, in which is included the fire brigade tax, if any, paid by the occupier shall be recoverable by him from the owner, and any conservancy tax or water tax paid by the owner shall be recover--able by him from the occupier."
9. The learned counsel further contended that the Karachi Municipal Act, 1933, was repealed in 1960 by the Municipal Administration Ordinance, 1960 and under section 4 of the said Act, any tax imposed or assessed under the repealed Act, shall be deemed to have been respectively made, issued, imposed or assessed, entered into, instituted or taken under this Ordinance. It was contended that the water tax and conservancy tax were imposed under the Karachi Municipal Actnd and, therefore, under the repealed clause, they shall be deemed to have been imposed under the Municipal Administration Ordinance, 1960. The contention of the learned counsel is not without force.
10. It was further contended that section 6 of the General Clauses Act applies to the present case and as no contrary intention has been given in the Municipal Administration Ordinance, 1960, any liability under the Karachi Municipal Act will continue to be the liability of the persons who are mentioned in that Act. This contention also is not without force.
11. Mirza Abdur Rashid, learned counsel for the respondent, has contended that under explanation No.1 to section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, it is provided as under:- "Where the water charges or electricity charges or both arc payable by the tenant to the landlord such charges shall be deemed rent.
12. He further contended that under section 9 of the West Pakistan Urban Rent Restriction Ordinance- "(1) Notwithstanding anything contained in any other provision of this Ordinance, a landlord shall, subject to the approval of the Controller, be entitled to increase the rent of a building or rented land if after the commencement of this Ordinance a fresh rate, cess or tax is levied in respect of the building or rented land by Government or any local authority, or if there is an increase in the amount of such a rate, cess or tax being levied at the commencement of this Ordinance; Provided that the increase in rent shall not exceed one-half of the amount of any such rate, cess or tax as the case may be.
(2) Notwithstanding anything contained in any other law for the time being in force or any agreement no landlord shall recover from his tenant the amount of any tax or any portion thereof in respect of any building or rented land occupied by such tenant by any increase in the amount of the rent payable, or otherwise, save as provided in subsection (1)."
13. It is contended that the appellant could not increase the rent with--out going to the Rent Controller under section 9 of the West Pakistan Urban Rent Restriction Ordinance. The contentious of the learned counsel has no force as the West Pakistan Urban Rent Restriction Ordinance came into force in Karachi on the 30th June 1963 and the amount which is claimed in the present suit is much earlier than that period. In this connection, it may be noticed that under section 8 of the Karachi Rent Restriction Act, 1953, which was repealed by the West Pakistan Urban Rent Restriction Ordinance, 1959, it is provided that where the landlord pays any municipal rates, cesses or taxes in respect of any premises, an increase of the rent thereof shall not be deemed to be an increase for the purpos6 of this Act and the landlord shall be entitled to the amount thereof in addition to the fair rent if such amount does not exceed any increase in respect of such rates, cesses or taxes over the amount paid. Thus it is quite clear that the appellant is entitled to claim the amount of water- tax and conservancy charges from the respondent for the period in suit.
14. It was next contended by the learned counsel for the respondent that the suit was not maintainable under item 7 of the Second Schedule of section 15 of the Karachi (sic) Provincial Small Cause Courts Act, 1887. Item No. 7 reads as under:- "A suit for the assessm ent, enhancement, abatement or apportionment of the rent of immovable property."
15. We have considered the scope of the present suit and are satisfied that it is not for enhancement of the rent of immovable property. The Provincial Small Cause Court was, therefore, competent to hear the suit. It was next brought to our notice that under section 3 (1), Schedule, Part I of Section B of the Conciliation Courts Ordinance, suit for the recovery of money due on contracts, receipts or other documents, therefore, should have been filed before the Conciliation Court. This contention has also no force. The suit is not for the recovery of money due on contracts, receipts or other documents, besides the value of the suit is more than Rs.500. In view of this, the suit was competent and was maintainable in the Small Cause Court, Karachi.
16. After hearing the learned counsel for the parties, we are satisfied that the West Pakistan Urban Rent Restriction Ordinance, 1959, was not applicable to the present case and that the landlord was entitled to realise a portion of water tax from the tenant in accordance with the provision of subsection (5) of the Karachi Municipal Act, 1933. We are further of the view that the provisions of section 3 (1) (a) of the Conciliation Courts Ordinance, 1961, does not operate as a bar to the suit. On these conclusions, the appeal is accepted with costs.