1. ' The appellants are landlords of shop No,3 situated at plot No,II-B,8/A Commercial Area, Nazimabad, Karachi of which the respondent is the tenant. The appellants' predecessor filed an ejectment case on the ground that in terms of tenancy agreement the respondent was required to pay the electricity charges, but he failed to pay the same. It has been alleged that huge arrears of Rs,1385.79 were due till November, 1982 against the meter which is installed in the shop of the respondents.The appellants then served a notice dated 25-11-1982 calling upon him to clear the arrears. The respondent did not reply and before filing the ejectment case the appellant ascertained that Rs,401.47 were arrears of electricity charges which had not been paid by the respondent. During the pendency of this case S.Badruzzaman the, predecessor of the appellants died and the appellants were brought on record. The respondent filed his written statement in which it was pleaded that the appellant used to collect the K.E.S.C. Bills himself and received the charges from the respondent and deposited with the K.E.S.C. The appellant had received the charges accordingly from the respondent but did not deposit with K.E.S.C. And created a default It was alleged that the notice issued to him was mala fide and the electricity was dis-connected.
2. Therefore, he himself deposited the charges with the K .E.S. C. And got the electricity restored. In the affidavit of evidence the same facts have been reiterated. In evidence the respondent stated that he had paid the entire arrears, but in cross-examination he admitted that instalments had been granted by the K.E.S.C. The entire question revolves round the question whether Rs,401.47 had been paid by the respondent or the said amount was due at the time of filing ejectment case. It is clear that by notice dated 25-11-1982 the respondent was called upon to clear the dues. The appellants have filed a payment slip dated 3-3-1983 showing Rs,401.47 as the amount due from the consumer.
3. However, from this statement it is not clear whether this represents the arrears on the basis of which ejectment case was filed or it is merely an arrear for the preceding month. The respondent in his evidence has stated that he has paid the entire arrears, but in cross-examination admits to have paid in instalments. No documentary evidence has been produced to prove that all the arrears were cleared by the respondent before the ejectment application was filed. Therefore, in fact on this particular issue both the parties have not produced proper and cogent evidence and no conclusive finding can be given.
4. ' The learned Controller has observed that in view of the definition of the word 'rent' in the Sind Rented Premises Ordinance, 1979 and the fact that under the tenancy agreement electricity charges were to be paid by the tenant to the Karachi Electric Supply Corporation directly and not to the landlord, the appellants are not entitled to invoke this provision of law for the eviction of the respondent. The interpretation of the Controller is completely erroneous and not tenable. 'Rent' has been defined by section 2(i) of the Ordinance as follows:
(i) "Rent includes water charges, electricity charges and such other charges which are payable by the tenant but are not paid".
5. ' The definition is inclusive in nature and provides that if a tenant is liable to pay water charges, electricity charges and similar charges but he fails to pay them such charges shall be treated as rent. It is not a condition precedent that such charges are to be paid to the landlord alone. The main criterion is that such charges are payable by the tenant. If a tenant is required to pay such charges to the authority which issues the bills then the liability to pay them is on him and if he fails to pay them such charges will be covered by the definition and treated as rent.
6. ' In view of the fact that the evidence of both the parties lacks in material particulars it is not possible to give a clear finding on the main issue. I will set aside the order of the Controller, remand the case for decision on issues ,(1) whether Rs,401.47 was the arrear due towards the Karachi Electric Supply Corporation as alleged by the appellant and (2) whether Rs,401/47 was paid by the respondent before the ejectment application was filed. The Controller should record fresh evidence of the parties on these two points and give his decision according to law. The R. & P. Should be sent to the District Judge, Karachi (Central) who shall allocate the case to any Controller within his jurisdiction except the Controller who has passed the impugned order.