IN THE HIGH COURT OF SINDH KARACHI
Constitutional Petition No. S – 90 of 2007
Petitioners : Nizar Noor Ali, Hassan Noor Ali and Karim
Noor Ali through Mr. Abdul Qadir Khan,
Respondents 1& 2 : Ameer Ali and Sultan Ali
through Mr. Yousuf Moulvi, Advocate.
Respondent No.3 : District Judge, Karachi South.
Respondent No.4 : VIth Senior Civil Judge & Rent Controller,
Dates of hearing : 22.01.2019 and 06.03.2019.
J U D G M E N T
NADEEM AKHTAR, J. – Rent Case No.879/2004 was filed by one Noor Ali Kassam, the predecessor-in-interest / father of the present petitioners, under Section 15(2)(ii) of the Sindh Rented Premises Ordinance, 1979, (‘the Ordinance’) against respondents 1 and 2 for their eviction from Room No.4 situated in the building known as ‘Khatija Manzil’ constructed on Plot No.19, Sheet No.GK-1, Ghulam Hussain Kassam Quarters, Rochandas Thakurdas Road, Punjabi Club, Kharadar, Karachi (‘demised premises’), on the ground of default in payment of electricity charges. The said rent case was allowed by the learned Rent Controller vide order dated 15.04.2006 by directing respondents 1 and 2 to vacate the demised premises within two months, which order was challenged by respondents 1 and 2 in First Rent Appeal No.195/2006. The said appeal was allowed by the learned appellate Court vide impugned judgment dated 06.02.2007 by setting aside the order of eviction and dismissing the eviction application filed by the petitioners. The above judgment of the learned appellate Court has been impugned by the petitioners before this Court through this Constitutional Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.
2. Before the learned Rent Controller, it was the case of the petitioners that one Muhammad Ali Hashim, the father / predecessor-in-interest of respondents 1 and 2 was the original tenant of the demised premises and after his death the said respondents became their tenants who had always remained irregular in payment of monthly rent ; the demised premises were lying locked as the respondents had closed their business ; in August 2004, the petitioners came to know that electricity supply of the demised premises had been disconnected due to non-payment of electricity dues ; upon inquiry, they came to know that the respondents had failed to pay electricity charges as per the bills issued by KESC and an amount of Rs.14,300.00 was outstanding against them towards unpaid electricity charges of the demised premises ; and, due to non-payment of electricity dues, the respondents had committed default and were thus liable to be evicted from the demised premises on this ground and also on the ground that electricity supply of the demised premises was disconnected due to the default committed by them.
3. Instead of filing a proper written statement in the prescribed form as required by law, counsel for respondents 1 and 2 filed the following “reply” :
“ REPLY TO THE APPLICATION FILED BY THE
APPLICANT U/S 15(2)(ii) OF S.R.P.O. 1979
It is most respectfully submitted on behalf of the abovenamed opponent that the applicant has no cause of action against the opponent. The application is liable to be dismissed.
The above application is made in the interest of justice.
Dated: 22.11.2004. ADVOCATE FOR OPPONENT ”
Along with the above reply, respondent No.1 filed his affidavit stating that he had cleared all electricity dues and no such dues were outstanding against him, and also that he was depositing rent of the demised premises in MRC No.2190/1985. Copies of the last electricity bill paid by him and last receipt for deposit of rent were also filed by him along with his above affidavit. It appears that the above reply and affidavit filed only by respondent No.1 were treated by the learned Rent Controller as the written statement of both respondents 1 and 2, whereafter he proceeded to frame the points for determination viz. “(1) Whether the opponent has committed willful default in payment of electricity bill ? and (2) What should the order be ?”.
4. I am of the view that respondents 1 and 2 ought to have filed their written statement duly signed and verified on oath as required by law, by specifically denying the allegation of default of electricity charges made against them by the petitioners and by clearly pleading the facts relating to their defense. In this context, the mandatory provisions of Rules 2, 3, 14 and 15 of Order VI and Rules 2, 3, 4 and 5 of Order VIII of the Code of Civil Procedure, 1908, are relevant which were not complied with by respondents 1 and 2. Needless to say it is well-settled that provisions of the Code of Civil Procedure, 1908, are not applicable in rent proceedings in stricto senso, however, Rent Controller is entitled to follow the equitable principles and enabling provisions thereof ; and, the principles forming the basis and foundation for administration of justice, such as the above provisions relating to pleadings, undoubtedly apply also to the proceedings under the Ordinance. In the absence of specific pleadings by the parties with allegations and counter allegations against each other and their respective defense, the other party would have no opportunity to controvert the same and likewise the Rent Controller will not be able to frame issues / points for determination. Framing of issues by the Rent Controller is another example of following the relevant provisions of CPC in proceedings under the Ordinance. Needless to say that framing of issues in civil proceedings is essential in order to narrow down the controversy between the parties and to enable them to lead only such evidence that is relevant to such controversy. If the Rent Controller is unable to settle the issues for lack of pleadings, the parties before him will not be able to lead evidence in affirmation or in rebuttal, and consequently the matter in controversy will not be adjudicated upon completely and effectually. It is well-established that in civil proceedings, it is essential for the parties to plead in their pleadings the ingredients of any fact on which they want to rely and in proof of which they intend to produce evidence ; and, no evidence can be led or looked into in support of a plea that was not pleaded in the pleadings. It is also well-established that a defendant cannot be allowed to set up a plea that had never been pleaded by him in his written statement.
5. In view of the above well-settled principles and as respondents 1 and 2 never filed any written statement, the Rent Controller was not justified in treating the above evasive and vague reply as their written statement. In fact, their defense should have been struck off and they should not have been allowed by the Rent Controller to lead evidence. At best, they could have been allowed to cross-examine the petitioners. The purported evidence led on behalf of respondents 1 and 2 was, therefore, inadmissible and was liable to be ignored / discarded. My above view is supported by Mst. Jannat Bibi V/S Sher Muhammad and others, 1988 SCMR 1696, Muhammad Ashraf V/S Abdul Ghafoor and 4 others, 1999 SCMR 2633, Muhammad Rafiq and others V/S Muhammad Ali and others, 2004 SCMR 704 and Muhammad Ashraf V/S Mst. Noor Jehan, 1984 CLC 1938 (Karachi). However, as there are conflicting findings of both the learned courts below and also as the effect of non-filing of written statement by respondents 1 and 2 was not argued or defended before me, I am inclined to decide the issue at hand on merits.
6. In the above background, evidence was led by the petitioners by filing affidavit-in-evidence of petitioner No.1 who produced relevant documents and was cross-examined by the respondents’ counsel. Respondent No.1 was also allowed to file affidavit-in-evidence whereafter he was cross-examined by the petitioners’ counsel. Vide order dated 15.04.2006, the eviction application filed by the petitioners was allowed by the Rent Controller by directing respondents 1 and 2 to vacate the demised premises and to hand over possession thereof to the petitioners within two months. In the appeal filed by respondents 1 and 2, the learned appellate Court did not agree with the findings of the learned Rent Controller and through the impugned judgment dated 06.02.2007, allowed the appeal and dismissed the eviction application.
7. It was contended by Mr. Abdul Qadir Khan, learned counsel for the petitioners, that respondent No.1 had admitted in his cross-examination that the last / due date for payment of electricity bill of Rs.14,300.00 produced by him was 24.05.2003 ; the said bill was paid by him on 30.10.2004 after filing of the eviction application by the petitioners ; before payment of the above bill, he had not paid any bill from April 2001 till October 2004 ; and, it was mentioned in the above bill that the electricity connection was inactive due to disconnection. It was submitted by him that despite the above categorical admissions by respondent No.1, the correct findings of the learned Rent Controller that respondents had committed default in payment of electricity charges were reversed by the learned appellate Court without any justification and without realizing that the payment made by the respondents admittedly after committing default and after filing of the eviction application was of no consequence and they were liable to be evicted despite such payment. In support of his above submissions, he placed reliance on (1) Mrs. Alima Ahmad V/S Amir Ali, PLD 1984 SC 32, (2) Reckitt & Colman of Pakistan Ltd. V/S Saifuddin G. Lotia and 3 others, 2000 SCMR 1924, (3) Sher Afgan V/S Sheikh Anjum Iqbal, PLD 2004 SC 671, (4) Ahmad Ali alias Ali Ahmad V/S Nasar-ud-Din and another, 2009 SCMR 453, (5) Muhammad Afzal V/S IInd Addl. District and Sessions Judge and 2 others, PLD 2008 Karachi 189, (6) Muhammad Qasim V/S VIth Additional District and Sessions Judge Karachi Central and 2 others, 2008 CLC 446, and (7) Pakistan State Oil Company (Ltd.) through Authorized Officer V/S Muhammad Rafique and 4 others, 2010 CLC 1300.
8. It was next contended by learned counsel for the petitioners that the finding of the learned appellate Court that respondents 1 and 2 were not liable to pay electricity dues as there was no agreement in this behalf between the parties and also as the demised premises were handed over to respondents 1 and 2 without electricity, are misconceived, perverse and contrary to law. In support of this contention, he relied upon the definition of “rent” contained in Clause (i) of Section 2 of the Ordinance, which includes water charges, electricity charges and such other charges that are payable by the tenant, but are unpaid. It was urged by him that the impugned judgment of the learned appellate Court is not only contrary to the material that was available on record, but is also per incuriam being against the law laid down on this point by the superior Courts, particularly by the Hon’ble Supreme Court. In support of these submissions, he relied upon (1) Abdul Ghafoor V/S Mst. Amtul Saeeda, 1999 SCMR 28, (2) Safeer Travels (Pvt.) Ltd. V/S Muhammad Khalid Shafi (decd.) through L.Rs., PLJ 2007 SC 1067, (3) Gulshan Ara V/S The State, 2010 SCMR 1162, (4) Dr. Syed Ateeq Ahmed V/S Mst. Nargis Jamal, 1989 CLC 160, (5) Syed Adil Hussain V/S Mst. Majda, 2000 CLC 1982, and (6) Syed Kazim Raza Afridi and others V/S District Judge and others, PLD 2005 Karachi 425.
9. On the other hand, Mr. Yousuf Moulvi, learned counsel for respondents 1 and 2, contended that the petitioners’ application for eviction of the said respondents on the ground of default in payment of electricity charges was not maintainable as demised premises were handed over to them by the petitioners without electricity ; electricity meter was installed at the demised premises by the respondents ; all electricity bills, including the subject bill paid on 30.10.2004, were paid by them and there was no default on their part ; and, also as there was no agreement between the parties regarding payment of electricity charges. It was argued by him that electricity charges cannot be deemed to be “rent” as defined in Section 2(i) of the Ordinance in the absence of an agreement to this effect between the parties, and the said definition does not in any manner cast any statutory liability on the tenant to pay electricity charges in the absence of an agreement. In support of his above submissions, learned counsel placed reliance on (1) Badruddin V/S Muhammad Yousuf, 1994 SCMR 1900, (2) Mst. Rehana Begum V/S Mst. Shagufta, 1995 SCMR 323, (3) Muhammad Usman V/S Dr. Muhammad Hanif, 1999 SCMR 2234, (4) Mrs. Z. Shirazee V/S Abdul Qadir, 1993 CLC 528, (5) Muhammad Anwar V/S Syed Muhammad Sadiq, 1993 CLC 1819, (6) State Life Insurance Corporation of Pakistan V/S Mst. Surraya Sajjad, 2000 CLC 1813, and (7) Dr. M. Nasir J. Khan V/S Mrs. Shahnaz Mirza, NLR 2001 Civil 396.
10. I have heard learned counsel for the parties at length and with their able assistance have also examined the material available on record and the law cited by them at the bar. Record shows that respondent No.1 had admitted in his cross-examination that the last / due date for payment of electricity bill of Rs.14,300.00 produced by him was 24.05.2003, but the said bill was paid on 30.10.2004 after disconnection of electricity supply due to non-payment of outstanding dues and after filing of the eviction application by the petitioners. It was also admitted by him in his cross-examination that it was mentioned in the above bill that the electricity connection was inactive due to disconnection, and before payment of the above bill, respondents 1 and 2 had not paid any bill from April 2001 till October 2004. Thus, it was an admitted position that respondents 1 and 2 had not paid the electricity charges / bills in respect of the demised premises from April 2001 till October 2004, and due to continuous default on their part for a long period of 42 months, electricity supply of the demised premises was disconnected. After hearing the respective submissions of learned counsel for the parties, it appears that there is no dispute that the definition of “rent” contained in Section 2(i) of the Ordinance includes electricity charges which are payable by the tenant, but are unpaid. The law is also well-settled on this point for which reference may be made to Badruddin, Abdul Ghafoor, Sher Afgan and Mst. Rehana Begum (supra) decided by the Hon’ble Supreme Court, and to Dr. Syed Ateeq Ahmed, Muhammad Qasim, Syed Adil Hussain, Muhammad Afzal and Syed Kazim Raza Afridi (supra) decided by this Court. The main dispute / objection agitated on behalf of respondents 1 and 2 is that electricity charges can be deemed to be included in the said definition of “rent” and the said definition would be applicable only if there is an agreement to this effect between the parties. In support of his above objection, learned counsel for respondents 1 and 2 has relied heavily upon Badruddin (supra), relevant extract whereof is reproduced here for the sake of convenience and ready reference :
“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.”
11. Perusal of the above-quoted extract of Badruddin (supra) shows that it was held therein by the Hon’ble Supreme Court that the landlord cannot press into service the ground of default on the ground of non-payment of electricity and/or gas charges only in case where under the terms of tenancy a tenant is liable to pay the electricity and/or gas charges directly to the company concerned and there is no liability on his part to pay the same to the landlord. This clearly means that if there is no such agreement between the parties that the tenant is liable to pay the electricity and/or gas charges directly to the company concerned and default is committed by him in paying the same within time, the landlord will be entitled to press into service the ground of default on the ground of non-payment of such charges. In the instant case, it is not only an admitted position that there was no such agreement between the parties, but it was also vehemently argued on behalf of respondents 1 and 2 that in the absence of any agreement they could not be held liable for payment of electricity charges. Therefore, the case of Badruddin (supra) is of no help to them, and on the contrary it supports the case of the petitioners as it was held in paragraph 13 thereof that since the liability to pay rent under the Ordinance is on a tenant, he is liable to pay rent as defined under Clause (i) of Section 2 which includes electricity charges.
12. It has never been the case of respondents 1 and 2 that the petitioners were liable to pay the electricity charges and they (respondents 1 and 2) were liable only to reimburse the same to the petitioners, or the electricity bills were to be provided to them by the petitioners for payment. Thus, it is an admitted position that electricity bills were received directly by respondents 1 and 2 and they used to pay electricity charges directly to KESC. This being the position and also as admittedly there was no agreement between the parties regarding payment of electricity charges, such charges were the sole responsibility of respondents 1 and 2 under Clause (i) of Section 2 of the Ordinance. By not paying the said charges within time, which fact was admitted by respondent No.1 in his cross-examination, respondents 1 and 2 had clearly committed default and were/are thus liable to be evicted from the demised premises on such ground. My above view is fortified by the law laid down by the Hon’ble Supreme Court in Badruddin, Abdul Ghafoor, Sher Afgan and Mst. Rehana Begum (supra). Reference may also be made to the cases of Dr. Syed Ateeq Ahmed, Muhammad Qasim, Syed Adil Hussain, Muhammad Afzal and Syed Kazim Raza Afridi (supra) decided by this Court. Payment of electricity charges by respondents 1 and 2 admittedly after a period of 42 months and after disconnection of electricity due to their default, was of no consequence as it is well-settled that once default is committed it cannot be wiped out by subsequent payment and the penalty incurred by reason of such default cannot be staged off by subsequent payment as held by the Hon’ble Supreme Court in Reckitt & Colman of Pakistan Ltd. (supra). The admission by respondent No.1 for committing default in payment of electricity charges is significant and cannot be ignored in view of Ahmad Ali alias Ali Ahmad (supra), wherein it was held by the Hon’ble Supreme Court that in view of such admission by the tenant, he would be inferred as a defaulter and would be liable to be ejected.
13. I shall now discuss the cases cited and relied upon by learned counsel for respondents 1 and 2. In Muhammad Usman (supra), default in payment of electricity charges was denied by the tenant by alleging that the landlord had manoeuvred the issuance of exorbitant electricity bills by approaching the officials of KESC and a representation for their rectification was pending before the competent authority ; and in view of the above, it was held that the tenant had furnished plausible explanation at the very outset in his written statement which certainly required scrutiny. The facts of the above-cited case are clearly distinguishable, however, it may be noted that it was held therein that there is no doubt that electricity charges are the liability of the tenant and are deemed as rent within the purview of Section 2(i) of the Ordinance and failure in depositing the same in the prescribed manner can entail consequences of ejectment. Likewise, the facts in Mst. Rehana Begum (supra), are also distinguishable as the tenant in the said case had been paying electricity charges on regular basis and due to such regular payment, electricity connection had not been disconnected. Regarding Badruddin (supra), I have already expressed my view that the said case is of no help to respondents 1 and 2, and on the contrary it supports the case of the petitioners as it was held in paragraph 13 thereof that since the liability to pay rent under the Ordinance is on a tenant, he is liable to pay rent as defined under Clause (i) of Section 2 which includes electricity charges. Thus, the above cases, being clearly distinguishable and in favour of the petitioners, are not applicable to the defense set up by respondents 1 and 2.
14. It was held in the impugned judgment that there was no agreement between the parties for payment of electricity charges to the petitioners / landlords who had not placed anything on record to show that monthly electricity charges were to be paid to them by respondents 1 and 2 instead of depositing the same with the company concerned ; and, in the absence of any material proving obligation of the tenant for payment of taxes or electricity charges to the landlord, the eviction application on the ground of default in payment of electricity charges was not maintainable. The above findings clearly show that learned appellate Court was conscious of the fact that there was no subsisting agreement between the parties. Despite this position, learned appellate Court failed to appreciate that it was a statutory tenancy and as such the rights and liabilities of both the parties were to be governed by the Ordinance, Section 2(i) whereof specifically provides that “rent” includes water charges, electricity charges and such other charges that are payable by the tenant, but are unpaid. Moreover, the petitioners had never pleaded or claimed that respondents 1 and 2 were liable to pay electricity charges directly to them instead of paying the same to KESC. It was their case that respondents 1 and 2 had committed default in payment of electricity charges and because of their default the electricity supply of the demised premises had been disconnected. It was further held in the impugned judgment that the petitioners had failed in proving that respondents 1 and 2 had committed willful default in payment of electricity charges as the electricity meter was not in the names of the petitioners / landlords and the demised premises were handed over to respondents 1 and 2 without electricity. These findings were unjustified in view Muhammad Aslam V/S Karachi Electric Supply Corporation Ltd., 1988 CLC 482 (Karachi), wherein it was held by a learned Division Bench of this Court that the tenant has no locus standi to apply for a separate meter because he is only an occupant and not the landlord and for all practical purposes landlord of the premises is the consumer and meters are issued in his name. Therefore, the impugned judgment, being not only against the material / evidence available on record, but also against the provisions of the Ordinance and the well-established law discussed above, cannot be allowed to remain in the field.
15. As a result of the above discussion, the impugned judgment of the learned appellate Court is hereby set aside and the order of eviction passed by the learned Rent Controller is restored. Respondents 1 and 2 are directed to vacate the demised premises and to handover the vacant and peaceful possession thereof to the petitioners within thirty (30) days. This petition is allowed in the above terms, however, with no order as to costs.
J U D G E