' This is an appeal under section 21 of the Sindh Rented Premises Ordinance, 1979, (hereinafter referred to as the Ordinance, 1979) filed against the judgment, dated 20-7-1998 passed by the learned VIth Rent Controller Karachi (East) in Rent Case No,422 of 1996. Through the said Judgment, the appellant who is tenant of the first floor of the premises bearing No,32-C, P.E.C.H.S., Block-2, Karachi (hereinafter referred to as the tenement in question) has been ordered to be evicted on the grounds of default, subletting and for conversion of the use of the tenement in question for which it was initially allowed.
2. Previously, one Muhammad Mohsin Israili was owner of the entire building including the tenement in question who sold the same to the respondent which fact is not in dispute. On 21-4- 1990 the former landlady served a notice under section 18 of the Ordinance, 1979, upon the appellant notifying the change of ownership which fact is against not disputed. Subsequently, on 28-7-1996 respondent filed an eviction application under section 15 of the Ordinance, 1979, seeking eviction of the appellant/tenant on the grounds as mentioned hereinabove. In addition to the appellant, one Katmal Rafiq was also impleaded as opponent No,2 before the Court of Rent Controller against whom it was alleged by the present respondent that he is the subletee of the tenement in question. However, the appellant has not impleaded this respondent (opponent No,2) in the instant appeal. None of the parties have argued on the point of consequences of such negligence on the part of the appellant and upon the application of Order XLI, Rule 20 of the Code of Civil Procedure, 1908.
3. I have heard Mr. Abdul Karim Khan, learned counsel for the appellant and Mr. Moin Azhar, learned counsel for the respondent. With their assistance, I have scrutinized all the evidence brought on record by the parties. On the point of default, it was argued by Mr. Abdul Karim Khan that there was an established practice of paying rent in lump sum which was never objected by the respondent/landlady. On the point of subletting it was argued that the tenement in question is being used for residence from the day it was let out by the previous landlady and that the opponent No,2 being brother-in-law of one of the Directors of appellant is residing in the tenement in question alongwith the appellant's sister. In this background the allegations of conversion of premises from commercial to residential was also denied. On the point of non-payment of conservancy charges, it was argued by the appellant that it was never agreed to form part of the rent and, therefore, appellant was not required in law to tender the same. Mr. Abdul Karim Khan has relied upon the following cases:--
(i) Mst. Zohra Bai and another v. Messrs. Standard Industries Ltd. PLD 1994 Kar. 209; and
(ii) Tahir Ali Bhai v. Mrs. Naz Parwar 1997 MLD 2283.
4. Mr. Moin Azhar, while supporting the impugned judgment, has argued that the appellant/tenant has failed to establish that there was a practice voluntarily agreed between the landlady and tenant for tendering rents periodically and in lump sum. It was further argued that such practice was being carried out by the appellant/tenant on his part and the landlady never consented to the same. It was further submitted that despite verbal protests of the landlady the appellant/tenant continued to tender the rent periodically. It was argued that once it was shown that Kanwal Rafiq is occupant of the tenement in question, the burden was on the appellant to prove that it was not a case of subletting. Reliance was placed on the following cases: -
(i) Masroor Hasan and another v. Abbas Ali Khan 1981 CLC 669; and
(ii) Ghulam Muhammad and another v. Haji Muhammad Jamil 1982 CLC 1042.
5. On the point of, conversion, it was argued by Mr. Moin Azhar that admittedly the limited company is the tenant and that the use for residential purpose, shifts the burden upon the appellant to show that no conversion ever took place. On the non-payment of conservancy charges, he has referred to the case of Malik Abdul Jalil v. Mst. Bargees 1987 CLC 405 and contended that conservancy/water charges are part of the agreed rent. Reliance is also placed on section 2 of the Ordinance, 1979, as well as on the case reported as Matiullah Khan v. Syed Afroz Ali NLR 1991 AC 514.
On the question that lumpsum deposit of rent is no legal practice, reliance is placed on the cases Mst. Tayyaba Begum v. Taqi Haider 1994 SCMR 1913 and Amir Ali and others v. Messrs. Burma Oil Mills Ltd. 1990 SCMR 1327.
6. In paras. Nos.4 to 6 of the main eviction application, respondent/landlady has alleged default in tendering rents on the part of appellant/tenant. It was specifically pleaded that the appellant "never paid rent in time in spite of repeated demands and requests from the applicant (now respondent herein), and her husband when the opponent continued to pay the rent to the applicant at their own wish and convenience". This fact was reiterated by the respondent/landlady in paras. Nos.7, 8 and 9 of their affidavit-in-evidence. The pleadings and the evidence of respondent/landlady on the point that she never agreed for the practice of tendering rent in lump sum are consistent and were not shaken during the cross-examination. Burden was upon the appellant/tenant to prove that the respondent/landlady has voluntarily agreed for receiving the rent periodically which was not successfully proved by the appellant. Mr. Abdul. Karim Khan has referred to a decision of this Court Mst. Zohra Bai and another v. Messrs Standard Industries Ltd. PLD 1994 Karachi 209 and contended that where practice of accepting rents periodically is established the Rent Controller should exercise discretion in favour of tenant. In that case this view was upheld on the ground that "there is obviously no evidence from the side of the respondent but the appellants cannot get out of the fact that they have themselves admitted that the rent was being paid yearly and not monthly." In the instant case, no such material as identical to the case of Zohra Bai (ibid) was brought on record by the appellant.
7. In support of his contention that appellant is liable to be evicted on the ground of default in payment of rents, Mr. Moin Azhar has referred to the two decisions of Supreme Court. In the case of Amir Ali (supra) it was held by the Honourable Supreme Court that "merely because the landlady has in past condoned the non-payment of rent, unless the same was the result of an agreement or representation on his part, is no ground for condoning the default on the part of the tenant by the Court. It has repeatedly been held that it is the tenant's obligation to pay rent within the stipulated time and not for the landlady to go after the tenant demanding the rent." In the case of Mst.
Tayyaba Begum (supra) the appeal filed by the landlady was accepted and the eviction of the respondent was allowed. The plea of the tenant that there was a practice of payment of accumulated rent was not accepted by the Honourbale Supreme Court for the following reasons:- "...From these document on record it is clear that except for some occasions when the rent was paid for two or three months by the respondent, sometimes it included advance rent of the current month and except for the four receipts that have been produced by the respondent payment of rent regularly after three or four months cannot be established. From other tenants also as is obvious from the counterfoils produced in Court, the rent has been recorded in the same, manner as from the respondent. Therefore, no consistent and regular mode of payment of accumulated rent after regular intervals has been established. Therefore, the weak plea of practice which does not dislodge the provisions of law has not been established. Such fragmented evidence of payment of accumulated rent can neither create practice nor develop into an arrangement between. The parties to pay rent after every three or four months. The variation in the months for which accumulated rent was paid is also indicative of the fact that there was no regular practice and these assorted instances from the long period from 1975 to 1987 can hardly lead to inference muchless to prove that a practice had developed which is the anchor-sheet of the respondent's defence..."
8. The principle laid down by the Honourable Supreme Court in the case of Tayyaba Begum is fully attracted to the facts of this instant case and, therefore, I am of the considered view that the respondnet/landlady has made out a case of wilful and deliberate default. In addition, there is another plea of default alleged by the respondent/landlady i,e, default in payment Of water and conservancy charges for the year 1995-1996. It is not denied that the entire building received a consolidated bill for water and conservancy charges from local body amounting to Rs,15,787 out of which the share of the appellant/tenant as claimed by the respondent landlady comes to Rs,5,987.
The plea of appellant to this effect is that initially apartment was purchased by the Company on Pagri basis from the earlier landlady and, therefore, they were not liable to pay anything towards the conservancy and water charges being the owner of the flat in question. It was further claimed by the appellant that he was paying a total amount of Rs,700 as maintenance charges and not as rent and that the said amount includes charges of water and conservancy. In the written reply, affidavit-in-evidence and the stand taken during the cross-examination of respondent/landlady are all contradictory and lead the appellant/tenant to nowhere. Even if, for the sake of arguments, it is held that the tenement in question was obtained on Pagree basis, it will not absolve the tenant from making payments towards conservancy and water charges. It is tenant's legal obligation to pay unless it is proved through reliable evidence that the landlady took upon himself the responsibility of tendering water and conservancy charges or that such charges do not form part of the rent. On this point the landlady/respondent C has successfully proved the case of non- payment of conservancy and water charges, which amounts to wilful default and makes the appellant/tenant liable for eviction.
9. On the point of subletting,- there is only presumption that since the tenant in question was rented out to a private limited company and that it is occupied by opponent No,2, it amounts to subletting. On the same footings, it is. Presumed by the respondent/landlady that the use of the premises was converted from commercial to residential. Before the Rent Controller it was not proved that the premises in question was a commercial in nature and it was let out for said purpose; nor the previous landlady was called and examined on the point whether to whom this property was rented out and what was its purpose. In such circumstances and on the basis of weak piece of evidence, I am not inclined to uphold the order of eviction on the grounds of subletting and conversion of the use of tenement in question. To that extent, the learned Rent Controller has erred in his findings.
10. As a result of above discussion, it is proved that the appellant/tenant committed wilful and deliberate default in payment of rent as well as in payment of conservancy and water charges and, therefore, this appeal is liable to be dismissed in limine alongwith listed application. However, appellant is extended three months time to deliver the vacant and peaceful possession of the tenement in question to the present respondent subject to payment of rent.