' AJMAI, MIAN, J.---This is an appeal with the leave of this Court against the judgment dated 15-7- 1993 passed by a learned Single Judge of the High Court of Sindh In F.R.A. No, 39 of 1993 filed by the respondent against the order of ejectment dated 17-12-1992 of the learned Vlth Senior Civil Judge/Rent Controller, Karachi (East), in Rent Case No, 461 of 1991 on the ground of default in payment of electricity charges, allowing the same by reversing the finding of the learned Rent Controller. Leave to appeal was granted to appraise the evidence' brought on record in the light of the contentions raised by the appellant.
2. The brief facts are that the respondent is a tenant at Rs,50 per month plus payment of electricity charges as per reading of sub-meter of Shop No,2 out of 5 shops which are part of the building owned by the appellant. He seems that there was earlier litigation between the appellant and the respondent inasmuch as the former had filed an application for ejectment on the ground of default. It further seems that on 7-4-1982, the K.E.S.C. Disconnected the meter which was installed at the residence of the appellant in the same building on the ground of non-payment of electricity charges.
3. Thereupon, the respondent filed an application under section 11 of the Sindh Rented Premises Ordinance, 1979, hereinafter referred to as the Ordinance, for restoration, which application was allowed by the Rent Controller. Against the above order of the Rent Controller, the appellant filed F.R.A. No, 848 of 1987, which was allowed on the ground that the appellant had not disconnected or caused the disconnection of the electricity. However, in the discussion of the judgment, the following observations were made:-- "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 taken into consideration. In any event according to the appellant and from the bills produced Rs,1,180.00 were due which is much more than Rs,360.00 claimed to have been deposited by the respondent."
4. After that, the appellant filed present rent case under section 15(2)(ii) of the Ordinance on the ground of default for the period from 25-8-1991 till disconnection on 7-4-1982. It was also mentioned in the above rent case that previously the respondent had not paid electricity charges for the period from 21-7-1978 to 30-6-1979.
5. The above rent case was resisted by the respondent inasmuch as it was pleaded that earlier the appellant in his Rent Case No, 4231 of 1979 did not include the above alleged default of the payment of electricity charges. It was also pleaded that the rent case was barred by the principle of res judicata and the default for the period from 21-10-1978 to 30-6-1979 was barred by time. On merits also the allegations contained in the rent case were denied. It was denied that the respondent was liable to pay the electricity charges for the above period from 21-104978 to 30-6- 1979 or for the period commencing from 25-8-1981. It was also pleaded that the observations contained in the judgment of F.R.A. No, 848 of 1987 were not conclusive on the point of default.
6. The learned Rent Controller, on the basis of pleadings of the parties framed the following five issues:-- "(1) Whether suit is barred under Order 2 (2), C.P.C.?
(2) Whether suit is barred by res judicata?
(3) Whether suit is barred by limitation?
(4) Whether opponent committed default in payment of electric charges after 25-8-1981?
(5) What should the order be?"
7. After recording evidence and hearing the parties, she recorded her findings on Issues Nos.1 to 3 in the negative; whereas finding of Issue No,4 was returned in the affirmative. Consequently, under Issue No,5, the ejectment order was passed.
8. Against the above order, the respondent filed aforesaid F.RA., which was upheld by the learned Judge in Chambers on the ground that the appellant did not call upon the respondent to pay the electricity charges and did not intimate the amount payable. After that, the appellant filed a petition for leave to appeal, which was granted for the above reason.
9. We have heard the appellant in person and Mr. S. Ishtiaq Ali, learned ASC for the respondent.
' The thrust of the arguments of the appellant was that as a learned Single Judge in the above F.RA.
No, 848 of 1987 in his judgment dated 11-11-1990 had held that the respondent was liable to pay Rs,1,180 as the electricity charges, the above finding was sufficient to sustain the order of the learned Rent Controller. His further submission was that, in any case, the respondent has not paid the above amount till today.
' On the other hand, Mr. S. Ishtiaq Ali, learned counsel appearing for the respondent, has urged that according to the appellant's own case in the rent application, the following was the practice obtaining between the parties:-- "It is submitted that the practice of payment and acceptance of electricity charges in between the applicant and the opponent was that at the time of receipt of electricity bill from K.E.S.C. By the applicant in respect of commercial meter, the applicant used to check the reading of the sub- meter in presence of opponent, write the same on register specifically maintained by the opponent for this purpose and after having received electricity charges from the opponent used to put his signature on register against the reading in acknowledgment of electricity dues from the opponent."
' According to him since there was default on the part of the appellant that he had not come to read sub-meter jointly, the respondent could not have been held of having committed default in payment of electricity charges. According to him, it was incumbent upon the appellant to have called upon the respondent to pay the specific amount payable for each month.
10. In furtherance of his above submission, he has referred to the case of Sheikh Anisur Rehman v.
Muhammad Umer and others (1992 CLC 1652), the case of Muhammad Atique v. Muhammad Hanif Khan 1993 M LD 871, the case of Mst. Shahana Jawed v. Haroon (1991 M LD 1914) and the case of Muhammad Anwar v. Syed Muhammad Sadiq (1993 CLC 1819).
' In the above first case, a learned Single Judge of the High Court of Sindh has held that since the landlord had failed to prove as to what was actual share of the tenant out of the common bills in respect of gas, the finding of the learned Rent Controller that the tenant committed default was not sustainable.
' In the second case, another learned Single Judge of the High Court of Sindh has held that as per agreement of tenancy, the respondent/tenant was liable to pay electricity and gas charges according to consumption and as the appellant/landlord though stated that the respondent had failed to pay electricity charges amounting to Rs,1,844 and gas charges amounting to Rs,439 for the period from August, 1988 to March, 1989, but failed to produce the bills in respect thereof and, therefore, the default was not proved.
' In the above third case, another learned Single Judge of the High Court of Sindh held that in the absence of due notice of the actual electricity dues, no default on such account attached on the tenant especially when penal provisions of section 16 (2) of the Ordinance were involved. In the above case, the Rent Controller passed a tentative rent order under section 16 (1) of the Ordinance requiring the appellant/tenant to deposit rent at the rate of Rs,600 per month together with water pump and electricity charges subject to verification from the E.E.S.C. The landlord moved an application for striking off the tenant's defence for the default of non-depositing of electricity bills.
In that context, the above observations were made.
' In the fourth case, a learned Single Judge of the Sindh High Court held that the electricity charges will be deemed to be rent when they were payable to landlord and not when they are directly payable to K.E.S.C.
11. Mr. S. Ishtiaq Ali has also referred to the case of Pir Bakhsh represented by his Legal Heirs and others v. The Chairman, Allotment Committee and others (PLD 1987 SC 145), in which this Court inter alia has highlighted distinction between the doctrine of stare decisis and the doctrine of res judicata and it has been pointed out that doctrine of res judicata applies A only when the same parties or their privies are involved in the subsequent case as were involved in the earlier round of litigation, but the doctrine of stare decisis is not affected by the fact that different parties are involved in the case where the precedent was established. It was further pointed out that res judicata applies to decisions of both law and facts, whereas stare decisis is applicable only on the question of law.
12. Before dealing with the merits of the above contention of Mr. S. Ishtiaq Ali, learned ASC appearing for the respondent, it may be pertinent to refer to the case of Pervaiz Akhtar and another v. The Additional District Judge, Rawalpindi and 4 others (PLD 1990 SC 681) and the case of Dr. Ghulam Rasool v. Muhammad Idrees Qureshi (1989 CLC 279).
In the above first case this Court, while declining a petition for leave to appeal against an ejectment order, held that the rent due for the purpose of the Rent Restriction Ordinance would include time-barred rent. It was pointed out that the right to recover rent through a civil suit is distinct from a right to seek ejectment on the ground of default.
' In the above second case, a learned Single Judge of the Sindh High Court while construing section 13 of the Ordinance, highlighted the factum that the word "due" which was employed in section 13 of the late West Pakistan Rent Restriction Ordinance, 1959, has been omitted in section 15 (2) (ii) of the Ordinance. It was held that the landlord even on the basis of time-barred rent would be entitled to file ejectment case on the ground of default.
13. It may also he pointed out that the definition of "rent" given in clause (i) of section 2 of the Ordinance includes water charges, electricity charges and such other charges which are payable by the tenant but are unpaid. Since the liability to pay rent under the Ordinance is on a tenant, he is liable to pay rent as defined under above clause (i) of section 2 which includes electricity charges.
14. The above four judgments rendered by the learned Single Judges of the Sindh High Court are not in fact applicable to the present case as their facts arc distinguishable. In the above cases, the liability of the tenant to pay gas and/or electricity charges depended on the actual bills. Whereas in the present case, the respondent's liability was to be ascertained by reading of the sub-meter which was admittedly installed at the respondent's shop. Even if we were to accept the respondent's learned counsel's contention that the reading of the sub-meter was to be done jointly and it could not be done on account of lapse on the part of the appellant, this does not absolve the respondent from his liability to tender electricity charges as per sub-meter's readings. We may observe that a distinction is to be drawn between a case in which liability of a tenant to pay electricity and/or gas charges depends on the actual bills and the liability of a tenant founded on reading of sub-meter. In the former case, a tenant will be justified in asking the landlord to show the actual bills but in the latter case, he cannot justify default on the basis of non-showing of the bill by the landlord as his liability is to be ascertained on the basis of reading of the sub-meter. To illustrate the above point, we may give an example; Suppose there are five shops having common electricity meter and having five different tenants. It is agreed between the tenants and the landlord that each of the tenant will pay 1/5th of the electricity bill which may be received from K.E.S.C. Or WAPDA. In such case if the landlord has not intimated the actual amount of the bill to the tenants, it will be improper to hold that the tenants have committed default by not tendering electricity charges. Take the other example, where in the above five shops there are subL meters. In this case, the liability agreed to between the tenants and the landlord is on the basis of actual reading of the sub-meter. In this case the tenant cannot commit default on the plea that they were not intimated the actual amount of the bill though they may claim adjustment if the actual bill is for lesser amount.
15. We may also point out that if under the terms of the tenancy a tenant is liable to pay directly the electricity and/or gas charges to the company concerned and there is no liability on his part to pay the same to the landlord, in that event, the landlord cannot press into service the ground of default on the ground of non-payment of electricity and/or gas charges though he may be entitled to press into service the breach of the terms of the tenancy for seeking ejectment, if on account of default in payment of electricity and/or gas charges, the company concerned disconnects the supply and thereby impair the utility and the value of the demised premises.
16. In the present case as pointed out here in above, the liability of the respondent to pay the electricity charges was ground on the actual reading of G the sub-meter and not on the receipt of the bill from the K.E.S.C. In this view of the matter, the respondent is obliged to tender electricity charges on the basis of reading of the sub-meter even if the appellant had not come for joint reading. Besides that, the above observation made by a learned Single Judge of the High Court of Sindh in the above earlier F.R.A. 848 of 1987 to the effect that the respondent was liable to pay Rs,1,180 on the basis of the bills produced was a piece of evidence which could have been relied upon by the learned Rent Controller even if we were to hold that the above judgment did not constitute res judicata for the purpose of proceedings under section 15 (2) (ii) of the Ordinance as the scope of the proceedings H under section 11 of the. Ordinance is different from that of a proceeding! Under the former provisions.
17. We may further observe that the respondent has not till today paid the above amount of Rs,1,180 or Rs,1,125 whichever may be considered to be the correct figure.
18. The upshot of the above discussion is that the learned Judge in Chambers was not justified in reversing the finding of the learned Rent Controller for the reason which found favour with him. The appeal is, therefore, allowed and the judgment under appeal is set aside and the order of the learned Rent Controller is restored. However, we allow six months' time to the respondent on the condition that he will pay rent regularly, failing which the appellant shall be at liberty to file an execution application. Additionally, if the respondent fails to hand over the vacant possession on the expiry of above period of six months, the learned Rent Controller shall issue a writ of ejectment without any further notice to the respondent.