1. ' This Rent Appeal has been filed challenging the orders passed by the Rent Controller on 23-2-1994 in Rent Case No,2842/1985 (Old No,1843/1984).
2. ' The facts of the case are that the appellant is occupant of Flat No,4 in Nizam Square, S.C-3, Block- C, North Nazimabad, Karachi which is owned by the respondent. According to the application filed by the respondent, for ejectment of the appellant, the appellant is the tenant in the said premises at the rate of Rs,100 per month and that he had defaulted in payment of rent since April, 1981 till the date of filing of the Rent Case i,e, 21-5-1984 and also that the appellant had failed to pay water and conservancy charges ever since he was inducted as a tenant which was in the year 1976. On these two grounds the ejectments of the appellant was sought by the respondent. Both the parties had filed their affidavit-in-evidence. In addition, the respondent had examined one Hyder Ali son of Thawar, another tenant of his. The learned Rent Controller after hearing the Advocates and taking into consideration the evidence brought on record was pleased to hold that the appellant had not committed default in payment of rent but had defaulted in payment of conservancy and water charges as agreed upon by him and, therefore, he directed his ejectment allowing the rent case.
3. ' I have heard Mr. Muhammad Salim Tapdawala, Advocate for the appellant. He has argued that there is no Agreement of Tenancy executed in the present case. He has referred to a document placed on record as Exh. A/3 which is a form filled in and signed by the present appellant for his registration as a tenant. This form does not bear the signature of the landlord and, therefore, this cannot be treated as an agreement of tenancy. He has placed reliance on the case of Abdul Rashol v. Mst. Aziza Khatoon (1992 M LD 1997). Mr. Mirza Waqar Hussain, Advocate for the respondent has conceded to this position but haq submitted that this document can certainty be treated as an undertaking by the appellant and Condition No,9 of this document shows that the appellant had undertaken to pay the conservancy and water charges. He has further referred to notices sent by the respondent to the appellant which are Exhs. A/6, A/7 and A/10. From these notices he had argued that the demand was made by the respondent from the appellant. He has also referred to two bills received from the K.M.C. (Exhs. A/12 and A/13). However, a deeper perusal of these documents would show that the two bills received from KMC, Karachi are dated 6th June, 1989 and were certainly not available with the respondent at the time the first two notices Exhs. A/6 and A/7 were issued. From this it is obvious that the demand made by the respondent in these two notices was not based on the said bills. However, at that relevant time in the years 1981 and 1985 if any bills were received by the respondent, the same have not been produced in evidence and, therefore, it cannot be said that this demand was made on the basis of any bills received by him. Condition No,9 appearing on the reverse of Exh. A/3 does not specify and amount payable monthly or yearly by the present appellant. In these circumstances, it is obvious that at the time the Rent Case was instituted, there were no bills received by the respondent and, therefore, no demand could have been made by the respondent and, thus, the ground of default in payment of conservancy and water charges as demanded in the Rent Case could not have been made.
4. ' Accordingly, I set aside the findings of the Rent Controller on this issue with regard to default in payment of conservancy and water charges.
5. ' Mr. Mirza Waqar Hussain, the counsel for the respondent has then argued that the findings of the Rent Controller on Issue No,1 that there was no default in payment of monthly rent by the appellant is an erroneous finding. He has referred to the deposition of the Nazir of the Court who was examined but was not cross-examined. He has pointed out from the evidence of the Nazir that there is an admission that the rent allegedly deposited by the present appellant was in fact deposited on account of the other tenants of the same building. In these circumstances, and since I have set aside the finding of the Rent Controller on the issue with regard to default in payment of conservancy and water charges, I would set aside the finding on this issue also and remand the entire case to the Trial Court with the direction that the respondent will be at liberty to seek amendment in the Rent Case on the basis of subsequently received bills which according to him included the period since the year 1976. It is also directed that in case the respondent chooses to file amended application for ejectment, the Rent Controller will allow an opportunity to the appellant to file his written statement afresh and the matter may proceed afresh. The amount deposited by the appellant under the order of this Court towards conservancy and water charges is directed to refund to the appellant. However, it will be open for the Trial Court to pass any interlocutory order.
6. ' This appeal stands disposed of in above terms. However, there will be no order as to costs.