' SAIDUZZAMAN SIDDIQUI, J.---This order will govern the disposal of abovementioned two civil petitions for leave to appeal, as common question of law and facts arises in the cases.
2. In Civil Petition No,49-K of 1995 the petitioner Usman is a tenant of Shop No,11 in Haneef Market, Block-M, North Nazimabad, Karachi at a monthly rent of Rs,303. It is an admitted position that besides the payment of rent, the petitioner was also liable to pay electricity charges. In Civil Petition No,50-K of 1995 Abdul Sattar Moosa is the tenant of respondent in respect of Shop No,10 at a monthly rent of Rs,303 and besides monthly rent he was also liable to pay electricity charges. The respondent instituted 2 ejectment cases against the petitioners on the allegation that the petitioner in Civil Petition No,49-K of 1995 had failed to pay electricity charges and arrears had accumulated to the tune of Rs,16,249 for the period ending 28-11-1992. The allegation against petitioner Abdul Sattar Moosa was that he too failed to pay electricity charges amounting to Rs,7,482 for the period ending 28-11-1992. In both the cases, Rent Controller passed an order under section 16(1) of the Sindh Rented Premises Ordinance, 1979 (hereinafter to be called as the Ordinance only) directing deposit of electricity charges. The petitioners, however, failed to deposit electricity charges and as a result their defence was struck off and they were directed to hand over possession of premises to the respondent landlord. On appeal, the ejectment order passed by the Rent Controller has been upheld by the High Court.
3. In seeking leave to appeal, the learned counsel for the petitioners contended that as the electricity charges in respect of the demised premises were payable by the petitioners directly to the Karachi Electricity Supply Corporation (K.E.S.C) the Rent Controller could not direct eviction of the petitioners from the premises on account of default in payment of such charges. In support of the contention the learned counsel has relied on the following observations in the case of Bedridden v. Muhammad Yousuf (1994 SCM R 1900): "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 sub-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 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."
4. There is no written agreement of tenancy between the parties in the above cases and it is not disputed before us that the electricity charges in respect of the demised premises were to be paid by the tenant petitioners directly to the K.E.S.C. In these circumstances, the question whether the petitioners could be evicted from the premises on account of default in payment of electricity charges of K.E.S.C. Under section 15(1) of the Ordinance requires consideration. We, accordingly, grant leave to appeal to consider the same. Ejectment orders passed in the cases are stayed until decision of the appeals.