1. ' The respondent filed application under Section 11 of Sindh Rented Premises Ordinance, 1979 praying that the appellant be directed to restore the electricity in the shop situated in Quarter No,T/550, Korangi, Karachi. It was alleged that he is tenant of the shop on monthly rent of Rs,50 plus electricity charges. It was pleaded that the appellant demanded enhanced rent but on refusal he stopped accepting the rent. He therefore, filed an application for deposit of rent and after permission rent at Rs,50 per month is being deposited in Court. As the respondent did not accept the demand of the appellant for increase of rent he disconnected the electricity from the shop on 7-4-1982 and has avoided to restore the same. The appellant filed his written statement in which it was stated that the respondent was getting electricity from the common meter and was paying electricity charges as per units consumed on the basis of reading of the sub-meter. The respondent stopped paying electricity charges from October, 1978 when a notice was served.
2. Thereafter the respondent gave an undertaking in writing to pay the electricity charges. He however paid the electricity charges upto July, 1981 and thereafter did not allow the appellant to read the sub-meter. It was alleged that the notice of Rent Application No,296/79 for deposit of rent was never received by the appellant. It was further stated that although the respondent was not paying electricity charges from August, 1981 the appellant paid it from his own pocket upto September, 1981. Consequently when the charges accumulated upto Rs,1,180/19 the K.E.S.C.
3. Disconnected the electricity. All other allegations contrary to his averments were denied.
4. ' The respondent filed his affidavit of evidence in which he reiterated the facts stated in the application. It was also alleged that the electricity charges were received by the appellant or his son-in-law and they used to put their signature on the register at the time of receiving the electricity charges. He has not stated that electricity charges were also deposited in Court. The appellant filed his affidavit of evidence in which he repeated whatever he had pleaded in the written statement. It seems that before the learned Controller the appellant's Advocate did not appear to cross-examine the respondent and his statement remained unchallenged. The appellant was however cross-examined at length. The learned Controller by the impugned order issued direction to the appellant to restore the electricity to the shop. In her order she observed that the respondent had failed to pay electricity charges from 21-10-1978 to 30-6-1979 but the appellant did not complain about the arrears of the said period. From the pleading and the evidence produced on record it is clear that the appellant has accepted that the electricity charges were paid upto 25-8-1981. According to the appellant after this date electricity charge has not been paid. It was irrelevant on the part of the learned Controller to have given finding in respect of period from 21-10-1978 to 30-6-1979 in respect of which the appellant had not made any claim.
5. In fact the learned Controller seems to have completely ignored the controversy between the parties and did not properly appreciate the evidence. However, she seems to be impressed by the fact that the statement of the respondent had remained unchallenged and therefore it should be accepted as gospel truth. An unchallenged statement may be accepted but it has to be tested on its own merits. If it does not prove a fact then merely because it remained unchallenged does not give any authencity at all nor such statement can prove the fact by merely remaining unchallenged. A scrutiny of the statement of the respondent will show that he has not stated any thing about the arrears which are being claimed by the appellant. He has relied on his own register which bears the signature of the appellant photocopy of which was filed alongwith his affidavit of evidence as Annexure 'B'. According to this document the payment has been made upto 25-81981.
6. This is the date which the appellant also claims to be the date from which the aforesaid charges have not been paid. The respondent had taken the plea that the aforesaid charges have been paid therefore the burden was upon him to establish such payment which he has failed to prove. On the other hand the appellant has succeeded from the very evidence of the respondent that the electricity charge was not paid beyond 25-8-1981 which must have been consumption for the month of July, 1981.
7. ' Mr. Iftikharuddin the learned counsel for the respondent contended that the respondent had been depositing electricity charges at the rate of Rs,10 per month as directed by the Controller and a sum of Rs,360 was lying deposited there. Be that as it may, no evidence has been brought on record to establish this fact. This averment has been made in the written statement and the same has not been stated in the affidavit-in-evidence. The learned Controller has merely referred to it while stating the pleading without holding it to be correct. Therefore at this stage this plea cannot be raised as without proving these facts it cannot be taken into consideration. In any event according to the appellant and from the bills produced Rs,1,180 were due which is much more than Rs,360 claimed to have been deposited by the respondent.
8. ' It has been admitted before me by both the parties that sub-meter is within the shop premises- and payment was to be made in accordance with the reading of the sub-meter. It is not the case of the respondent that the appellant refused to accept the electricity charges whenever paid to him. It was for the respondent to have obtained the reading of the sub-meter and accordingly paid electricity charges to the appellant. The respondent being a tenant is liable to pay electricity charges with the rent. No efforts seem to have been made by the respondent to pay electricity charges to the appellant.
9. ' In the background of these findings I have now to consider whether case falls under section 11 and can a direction be given as contemplated by this provision of the Sindh Rented Premises Ordinance. Mr. Iftikharuddin the learned counsel for the respondent has contended that from section 11 it is clear that the electricity cannot be disconnected except with the previous consent of the tenant or in compliance with the requisition of the concerned authority or after obtaining the direction of the Controller in this behalf. According to the learned counsel none of these ingredients have been complied. From the electricity bill it is clear that seven day notice to deposit was given which is printed on its left hand side with red ink. Furthermore section 11 will come into play when it is proved that any landlord has discontinued or caused to be discontinued any service such as electricity, gas or water. In the present case the appellant has not disconnected the electricity connection nor he has caused to be disconnected because according to the appellant he did not deposit the electricity charges as it was not paid by the respondent who being a washer man consumes electricity worth more than Rs,100 every month which is much more than the rent itself.
10. In these circumstances the appellant cannot be held to have discontinued or caused to discontinue electricity connection. Therefore, no direction as required under section 11 can be given.
11. The order of the learned Controller is set aside and the appeal is allowed.