' It is desirable to state briefly certain facts giving rise to this appeal filed under section 21 of the Sindh Rented Premises Ordinance, 1979.
2. The respondent is the owner/landlord of a building situated on Plot P.E.C.H. Society, Karachi, a portion of which on ground floor is on lease with appellant on a monthly rent of Rs,75 exclusive of all other charges. On 10-2-1986 the respondent filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979, against the appellant in respect of the commercial premises, describing it as a room, meant for residential purposes. It is the case of the respondent that the appellant converted this room into a shop soon after taking possession of the same by making certain alterations and additions and due to the said conversion the Karachi Electric Supply Corporation, hereinafter referred to as K.E.S.C., disconnected the electricity of his house. The appellant then filed Rent Case No,370 of 1976, wider section 10 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (since repealed) for the restoration of the electricity and the Rent Controller directed the respondent to restore the electricity to appellant, who then got a separate commercial meter for the appellant and other tenant, who is occupying a shop on the ground floor.
Both of them consumed electricity from that meter and were jointly responsible for the payment of bills. It was also alleged by the respondent that the appellant and other tenant had defaulted in payment of electricity bills amounting to Rs,3,454, with the result the K.E.S.C. Again disconnected the electricity of the appellant. The appellant then filed a Rent Case No,406 of 1985, under section 11 of the Sindh Rented Premises Ordinance, 1979, for the restoration of the electricity, which case was disposed of by the Rent Controller on 20-10-1985, directing the appellant to deposit his share of Rs,1,727 towards unpaid electricity bill and it was in compliance with this order that the respondent got the electricity restored. The respondent also sought the eviction of the appellant on the grounds of default in payment of rent use of the premises by the appellant for the purpose other than that for which it was let out, impairing the value and utility of the premises, subletting and personal need for his children.
3. The appellant disputed the allegations made in the application for eviction. According to him he had committed no default in payment of rent and was regularly depositing the same in the office of the Rent Controller. The default in payment of electricity bill was also denied in specific terms.
4. The parties went to trial on the following issues:--
(i) Whether the demised premises was let out to the opponent for the residential purpose only, if yes, whether he has converted the same from residential to commercial by making certain alterations and additions?
(ii) Whether the opponent has committed default in payment of electricity bills which resulted into disconnection of electricity?
(iii) Whether the opponent has committed any default in payment of rent?
(iv) Whether the opponent has parted with the possession to his younger brother and that he has impaired the material value and utility of the demised premises?
(v) Whether the applicant requires the demised premises bona fidely for the use of his grown up children?
(vi) What should the order be?
' The respondent examined his son and attorney Capt. Syed Sajjid Saghar (P.W.1) and then closed the side, while the appellant examined himself (D.W.2) and his brother Muhammad Mushtaq (D.W.2).
5. On the assessm ent of evidence available on record the learned Rent Controller decided Issues Nos,1, 4 and 5 against the respondent, while Issues Nos,2 and 3 were decided against the appellant, giving rise to this appeal.
6. I have heard Mr. Muhammad Ahsan Shaikh, learned counsel for the appellant and Mr. Arshad Iqbal, learned counsel for the respondent. I have also gone through the record of the case carefully.
7. For the sake of convenience I would like to dispose of Issue No,3 first. Para. No,6 of the application for ejectment filed by the respondent relates to the ground of default of monthly rent, which for the sake of convenience is reproduced below:-- "That the opponent is in arrears of monthly rent for the last over 22 months, as he has not offered or tendered rent to the applicant and thus has defaulted in his statutory obligation."
8. The appellant has disputed the default in specific terms. According to him he is depositing the monthly rent due regularly in. Rent Case No,2265 of 1979. The deposit of monthly rent due is proved by the appellant. From the receipts (Exh.O/1 to 0/87). The learned Rent Controller however, took into consideration only one receipt (Exh.0/1) without realizing that the amount mentioned therein was paid in advance, i,e, rent for the months of December, 1983 to May, 1984. It may be added that the parties are in litigation since 1975, and at no time the monthly rent was accepted by the respondent or his attorney, which rent is being deposited regularly by the appellant in the office of the Rent Controller. Mr. Arshad Iqbal, learned counsel for the respondent has contended with force that the tenant had to offer the rent personally to the landlord and it was only after its refusal by him that he could deposit the same in the office of the Rent Controller. He has relied upon the case of Feroz Ahmad v. Mst. Zehra Khatoon, reported in 1992 CLC 735, which was incidentally decided by me. The facts of the reported case are however, distinguishable. In that case the rent was being accepted by the landlady and the tenant all of a sudden started depositing the rent in the office of Rent Controller in terms of section 10 of the Sindh Rented Premises Ordinance, 1979, obviously with a view to create problems for the landlady and it was in that context that this Court observed that the tenant cannot select the mode of payment of rent at his own convenience. As indicated above the parties have got strained relations in this case and the monthly rent due is being deposited by the appellant regularly in the office of the Rent Controller from the year 1975. In such a situation, if the respondent was interested to collect rent personally it was necessary for him to have asked the appellant to tender rent to him personally. From the perusal of the record it is clear that the appellant had tendered the rent to the respondent in terms of section 10 of the Sindh Rented Premises Ordinance, 1979 regularly and there was no default on his part. The finding recorded by the Rent Controller on Issue No,3, is therefore, reversed.
9. Coming now to the question of defaut in payment of electricity bills, it may straightaway be conceded that the respondent is a difficult landlord. He created problems for the appellant from the very inception of tenancy and disconnected the supply of electricity to him in the year 1976, with the result that the appellant had to approach the Rent Controller for the restoration of the supply. Capt. Syed Sajjid Saghir (P.W.2) the attorney of respondent has admitted this position in the following words:-- "It is correct to say that during the pendency of first rent application I disconnected the electric connection of opponent. Thereafter electric connection of opponent was restored on his application moved by him in Court. It is correct to say that opponent pays electric bills directly to K.E.S.C."
10. The perusal of the record also shows that the trouble over the payment of electricity bills arose after the reading in the main meter installed in the house of the respondent did not tally with the reading of sub-meters affixed at the shop of the appellant and of other tenant. It is alleged by the appellant that the respondent was consuming electricity from the commercial meter installed inside his house, which resulted into dispute over payment of electricity bill. It may be noted that the appellant is running a commercial shop in the said premises and by no stretch of imagination it can be said that he could afford to get the supply of electricity disconnected. It appears that the respondent who had failed in his earlier attempt to get an eviction order against the appellant managed this ground in order to cause harassment to the appellant. The appellant was again not in a position to deposit electricity bills to K.E.S.C. Unless the other tenant, who is also getting electricity from the same meter contributed towards the accumulated bill. It may also be added that the electricity charges are deemed to be rent when they are payable to the C landlord. If any authority is needed, the case of Abdul Khaliq v. Ghulam Abbas Bhatti, reported in 1981 CLC 1114, may be cited with advantage. All these factors when combined together prove that the appellant was not a defaulter and the finding recorded against him on Issue No,2 is not borne out from the record, which is accordingly set aside.
11. In the result the impugned order is set aside and the appeal is allowed. The parties to bear their own costs.