' This judgment will dispose of II Appeals Nos. 75, 76, 77 and 78 of 1969 which arise out of a consolidated judgment dated 31st January 1969 passed by the Additional District Judge, Karachi, whereby he allowed the appeals of the respondents/tenants and set aside the order passed by the Rent Controller for their ejectment.
2. The appellant, Muhammad Hussain, is the owner of building known as 'Musarrat', situate on Plot No, 289, Garden East, Karachi, which comprises of 4 flats having identical accommodation, i,e,, two on the ground floor and two on the first floor. Each of the 4 flats was rented out to the respective respondents by the Official Assignee as interim Receiver in Suit No, 516/54 in the erstwhile High Court of West Pakistan, Karachi, on terms and conditions contained in a lease deed dated 8-1-1957, initially for a period of 11 months, but the tenancy was continued thereafter on the same terms and conditions. After the Official Assignee had been discharged in the said suit, the appellant informed the respondents/tenants by letter dated 29-6-1961 that he had accepted them as tenants of the flats on the same terms and conditions contained in the aforesaid deed executed between them and the Official Assignee. Clause 1(c) of the Lease Deed in respect of each of the flats provided with regard to the rent as follows t- "1(c). That the rent per mansem of the said flat is Rs, 450 which includes all taxes and assessments other than water and conservancy taxes and electricity and power charges which are to be borne by the lessee and these will be paid by the lessee to the lessors along with and in addition to the agreed rent payable per month. This agreed rent shall be payable by the lessee to the lessor in advance on the 1st of every month during the entire tenure of the lease."
' The water and conservancy charges were being claimed by the landlord from the respondents at the rate of Rs, 51.75 per month and each of the respondents was paying the same in addition to the agreed rent of Rs, 450 per month, as stipulated in clause 1(c) of the Lease Deed above-quoted.
While the agreed rent was being paid regularly on a monthly basis by the respondents, the said water and conservancy charges were being paid separately in respect of several past months' together at a time on receipt of demands from the appellant. When the appellant began to make demands for payment of the increase in property taxes levied by the Excise & Taxation Department upon the coming into force in Karachi on 1-7-1963 of the West Pakistan Urban Property Tax Act, 1958, disputes arose between the parties so much so that the appellant had to obtain an order dated 30.7-1965 against the respondent from the Rent Controller for increase of rent under section 9 of the West Pakistan Urban Rent Retaliation Ordinance, 1959 (hereinafter referred to as the Ordinance), on account of increase in the property taxes, pursuant to which the rent was increased to Rs, 460.01 per month. The respondents soon stopped payment of the water and conservancy charges in or about June 1916 presumably on legal advice that they were not liable in law to pay the conservancy charges in view of the Ordinance. Therefore, the appellant filed an application on 1E-24967 to the Rent Controller for ejectment of the respondents under section 13 of the Ordinance on the ground of default in payment of the water and conservancy charges. The respondents resisted the ejectment applications and pleaded Inter alla that they were not liable to pay the said charges after the coming into force of the Ordinance in Karachi on 1-7-1963 and were entitled to the refund of all such payments made by them to the appellant after that date, After framing reles ant issues and recording evieence of one witness produced by each of the parties, the Rent Controller by his order dated 12-4-1968, held that water and conservancy charges were part of rent due under the lease agreement and that they bad committed default in payment. Accordingly, he ordered their ejectment from the suit premises. The respondents filed rent appeals before the Additional District Judge. Karachi. The appellate Court disagreed with the Rent Controller and held that the conservancy charges were not included in the expression "rent due" appearing in section 13(2)(i) of the Ordinance. He expressed no opinion with regard to the contractual liability of the respondents to pay the same under the lease agreement. According to the learned Judge, in view of the explanation (a) at the end of clause 13(2) of the Ordinance, the only charges which could be considered as part of the 'rent due' were water and electricity charges and no other charges. He, therefore, came to the conclusion that the respondents bad not committed any default in the payment of "rent due" when they stopped payment of the conservancy charges, and accordingly, by the common impugned judgment dated 31-1-1969 he allowed the four appeals and set aside the orders of ejectment passed against the respondents.
3. As rightly stated by the learned Additional District Judge, the main question for consideration is whether conservancy charges can be included in the expression 'rent due' appearing in section 13(2)(l) of the Rent Ordinance, the non-payment or tender of which to the landlord within the time prescribed, constitutes default justifying an order of ejectment of the tenants. The submission of Mrs. Rashid Patel, learned counsel for the appellant, is that the explanation (a) to section 13(2) of the Ordinance is not exhaustive, which states that water or electricity charges payable by the tenant to the landlord shall be deemed to be rent, and that the appellate Court erred in law in holding that as conservancy charges were omitted from the Explanation, they could not be treated as 'rent due'. She relied on the judgment in the case of Colony Sarhad Textile Mills Ltd. v. Collect.-r of Central Excise & Land Customs and another (1), wherein it was observed that the object of adding an explanation to a statutory provision is only to facilitate its proper interpretation and to remove any possible confusion or misunderstanding and that it does not per se create or extinguish a liability which is to be spelt out only from the main provision sought to be interpreted with the assistance of the explanation. Mr. Mohsin Taiyab Ali, learned counsel fo the respondents, on the other hand, relied on the rule of interpretation expresso unlus exclusio alterlus, namely that the express mention of one or A more things of a particular class may be regarded as excluding all othe members of the class. In my opinion, it is doubtful whether this maxim can be relied on to interpret an Explanation to statutory provision, apart from the difficulty in holding that conservancy charges are of the same class as water and electricity charges mentioned therein. Leaving the Explanation out of consideration, we have to fall back on the meaning of the expression 'rent due' appearing in section 13(2)(1) of the Ordinance. The expressio 'rent due' has not, however, been defined in the Ordinance. In its ordinary connotation, it means an amount which a tenant agrees to pay as consideration or compensation for the use of premises demised and usually B is a specified amount reserved as rent under the lease. It may be an inclusive rent, e g., an amount agreed to be paid on account of the provision of furniture or services or the payment of rates and taxes by the landlord.
(1) PLD 1969 Lab. 223 ' Thus, if premises are let at the inclusive rate of Re. 10, that Rs, 10 is "the rent", although some part of it represents what the landlord has to pay to the local authority for rates and taxes. It is not how the parties describe or allocate the amount agreed to be paid by the tenant but what, in substance, is the subject matter of the tenancy granted to the tenant by the landlord and the nature of the amount agreed to be pail therefor. The best evidence of the nature of the payment reserved under the lease, whether it is rent or not, is a matter of proper construction of the lease agreement executed between C the patties and the ascertainment of their true intention to be gathered from their acts, conduct and surrounding circumstances. A perusal of clause 1(c) of the agreement above-Quoted, leaves no doubt that the agreed rent of the premises is Rs, 450 per month inclusive of all taxes and assessm ents. But an exception is made in the case of water, conservancy, electricity and power charges, which are to be borne by the lessee and, although they are payable along with the agreed rent, they are additional payments and not inclusive of rent. Other sub- clauses in the lease agreement as well as the fact that the agreed rent at Es, 450 per month was paid separately in the past, receipts for which are Exhs. 1?/85 to 13/114, show that conservancy charges were treated separately and were not included in the agreed rent. This is further borne out by the fact that water and conservancy charges amounting to Rs, 621 at the rate of Rs, 51.75 were demanded and paid separately for periods of previous 12 months under Exhs. 13/227 to 13/236 and by the receipt Bah. 13/115. Again, even the ejectment applioatlon (para. 8) distinguishes rent from water and conservancy charges. Moreover, conservancy charges, unlike rent, are variable and an increase in such taxes entitles the landlord to obtain an order for increase of rent under section 9 of the Ordinance. In fact, the appellant had obtained such order on 30-7-1965 as stated earlier.
Moreover, a conservancy charge, unlike rent, is not a profit. Under the general law, the liability for payment of conservancy charge is on the landlord and if a tenant contracts to pay the same, it is nothing but a collateral agreement to reimburse the landlord, and it may be D enforceable as a contractual obligation of the tenant by a suit or distres warrant. There is, therefore, no force in the contention of the appellant's counsel that conservancy charges are to be deemed to be included in the phrase 'rent due'.
4. Mrs. Rashida Patel next contended that, at any rate, in view of the Explanation above-referred to water charges are deemed to be included in rent and that the respondents have defaulted in payment of the water charges and therefore are liable to he ejected. From the impugned judgment it appears that the issue with regard to non-payment of water charges was not pressed. Moreover, the amount of water charges allegedly due is a Question of fact, which cannot be gone into in second appeal. Th's submission, therefore, cannot be accepted.
5. For the foregoing reasons, there is no force in these appeals. They are accordingly dismissed with costs.