2000 PLP 1813 (CLC)

This appeal is directed against the order of the 8th Rent Controller, Karachi South, dismissing the application for ejectment of the respondent on the ground of default in payment of rent. Since the respondent had appeared on pre‑admission notice both counsels stated and the appeal had been at the Katcha Peshi stage since May, 1998, both learned counsel stated that they , were fully prepared to argue the matter on merits. Nevertheless Mr. Mian Mushtaq Ahmad learned counsel for the appellant submitted with some degree of embarrassment that he had specific instructions from his client to object to my hearing of the appeal on the ground that since I had appeared as counsel in some cases against the appellant Corporation, I should not hear this appeal. Since I am of the view that a plea of bias in‑ an appropriate case, can always be raised in the face of the Court as held by the Honourable Supreme Court in Yousuf Ali Khan v. The State PLD 1977 SC 482 I considered it appropriate to deal with the same on merits. It is indeed true that during the course of my practice at the bar I had appeared in certain cases on behalf of parties against the respondent Corporation, in some‑matter entirely unconnected with the present controversy but the mere fact that a counsel, in the course of his professional duties; appears against a particular party does not in any manner, without further proof of anything more A personal indicate his personal bias against that party, particularly when such party happen to be a corporate entity. It is also true that at times we avoid hearing cases, where one of the parties arrayed is our erstwhile client during our practice at the bar because of the personal relationship that has been built over a number of years as their legal advisor, but that principle would also not apply when a party arrayed is not our former client but his adversary in a particular case. The professional duties of an Advocate require him to render services in an impersonal capacity free from the 'point of bias. It was explained to the learned counsel, that I did not entertain any bias against the appellant Corporation, nor felt any embarrassment in hearing a case where it was a party, but was constrained to overrule the objection, because a litigant could not be allowed to raise such objection for selecting a bench of his own choice learned counsel thereupon proceeded to argue the case on merits.

2. The admitted facts appear to be that the respondent is a tenant of the. appellant in respect of a Flat No.2. 106‑F. Clifton, Karachi, which was let out to the respondent's husband, late Sajjad Ahmad, by the predecessor‑in -interest of the appellant, i.e. Norwich Union Life Insurance Society, vide tenancy agreement, dated 31‑10‑1972 at a monthly rent of Rs.650 exclusive of electricity and Gas Charges, which were directly payable by the tenant to the concerned authorities. There is no dispute between the parties as to the regular payment of the aforesaid amount of Rs.650. The appellant's case, however, is that the respondent failed to pay prorata water charges of the said premises from January, 1975 to December, 1991 amounting to Rs.14,880 and since the aforesaid charges were required to be treated as part of rent the, respondent was in default in payment of rent, therefore, the application for ejectment was filed on 27‑8‑1992.

3. The respondent filed a written statement alleging that water charges were required to be paid by the appellant/landlord and not by her in terms of the lease agreement. The attorney of the appellant filed an affidavit‑in evidence wherein it was alleged that the respondent had not paid such charges right up to June 1995. It was further averred that fire rate and conservancy charges were payable by the appellant/lessor during the subsistence of the agreement i.e. upto 31‑10‑1974 but thereafter the respondent acquired the status of a statutory tenant and became liable to pay water charges to the KW&SB in terms of section 2(j)(ii) of the Sindh Rented Premises Ordinance, 1979 and that other tenants of the same building had agreed to pay such charges. Copies of certain bills allegedly sent to the respondent containing such charges were placed on record. An affidavit‑in evidence on behalf of the respondent, was filed by her son and attorney, who also reiterated that water charges were payable by the respondent.

4. The learned Rent Controller, in his brief order, observed that from the rent application it appeared that water charges were separately payable by the respondent to the appellant, but the appellant had not mentioned the rate of water charges per month either in the rent application or in the affidavit in‑evidence nor did the lease agreement mention such rate. Moreover, since the appellant had failed to produce any document showing that water charges were separately payable by the respondent they had no cause of action and the application was accordingly rejected.

5. Mr. Mian Mushtaq Ahmad, learned counsel for the appellant vehemently argued that under section 2(i) of the Sindh Rented Premises Ordinance, 1979. the expression rent has been defined as under:‑‑ "Rent includes water charges, electricity charges and such other charges which are payable by the tenant, but are unpaid."

6. According to the learned counsel in view of the aforesaid definition payment of water charges was statutory obligation of the. tenant and such obligation would prevail irrespective of the terms of an agreement between the parties. He further contended that in any event even if it be assumed, without conceding, that such charges were payable by the appellant in terms of the lease agreement, the said provisions (if any) could remain effective only till the expiry of the agreement and thereafter, the charges had to be paid by the respondent in view of the statutory definition.

7. Mr. Umer Qureshi, learned counsel for the respondent on the other hand, referred to different previsions of the lease agreement contending that in the elaborate agreement spread over 7 pages, clause 3(b) expressly provided that all municipal, Government and other rates, taxes, assessment and charges were to be borne by the lessor who was also required to keep lessee indemnified against the same even if they were made against the lessee. He also referred to clause 2(i) of the agreement which provided that the lessee was only required to pay all charges of electricity and this by implication indicated that the parties never intended to burden the lessee with payment of water charges. He further argued that no bills for water and conservancy charges had been received by the respondent.

8. In reply Mr. Mian Mushtaq Ahmad contended that clause 3(b) only refer to local taxes, whereas water charges were not in the nature of taxes but only a fee for services rendered.

9. I have carefully gone through the terms of the elaborate agreement between the parties and have not been able to find any specific provision relating to payment of water charges. It may, nevertheless, be worthwhile to reproduce clauses 2(i) and 3(b) referred to by the parties:‑‑ "2(i) that the Lessee will pay and discharge all charges for electricity used by it or its servants or employees in the said flat; 3(b) that it will throughout the said term pay all municipal Government and other rates taxes assessments and charges which are now or may hereafter be levied or payable at any time during the said term in . respect of the said flat and keep. the lessee fully indemnified‑ against the same whether any assessment therefore be made on or against the Lessee or the Lessor;" 10. 1 requested Mr. Mian Mushtaq Ahmad to show if there was any evidence to indicate whether, prior to January, 1975 any water charges were paid by the respondent. Learned counsel candidly conceded that there was none, though he mentioned that there was material on record to indicate that such charges were paid by other tenants of flats in the same building. Indeed any such responsibility assumed by another party cannot bind the respondent. Learned counsel appears to be right in contending that water charges are in the nature of fee and not a tax, but the while amplitude of the provisions of clause 3(b) seems to indicate that the obligation of the lessor was not confined to payment of taxes alone.

11. Nevertheless the main thrust of Mian Mushtaq Ahmad's argument was premised upon the statutory definition of rent, which,. according to him, had an overriding effect on the terms of the agreement, in section 2(i) of the Ordinance which read as under:‑‑ "Rent includes water, electricity charges and such other charges which are payable by the tenant, but are unpaid."

13. It may be pertinent to state that the above quoted provision does not invariably require that water charges must always be treated as part of rent but the later part thereof clearly shows that they are to be so treated only when they are payable by the tenant. In , other words the statute does not mandate that in all cases such charges must be borne by the tenant but leaves it to the parties to decide as to which of them is liable ,for payment and they would be treated as rent only when the tenant is so liable. Moreover, the word, 'includes' indicates that when such charges are to be payable by the tenant they are deem to constitute part of rent. It would thus, follow that unless the agreement expressly required payment of water charges in addition to the agreed rent to be paid by the tenant the composite amount stated to be E rent of the premises would include such charges. In either case therefore, I am satisfied that there is no separate obligation on the part of the respondent to pay water charges in terms of the definition of the expression 'rent and the agreement between the parties. 14. 1 also find little force in the alternate contention of Main Mushtaq Ahmad to the effect that even if the respondent was not liable to pay water charges from the commencement of the tenancy he shall become so liable after the terms of the agreement expired or the 1979 Ordnance come into face. The law has been authoritatively settled by the Honorable Supreme Court in the case of Zarina Khawaja v. Agha Mahboob Shah PLD 1988 SC 190 to the effect that even after the expiry of the original tenancy agreement its provisions continue to remain effective unless they are found to be repugnant to the provisions of statute. The definition of the expression 'rent' in section 2(i) does not create any additional obligation upon the tenant and there is no other provisions to which the agreement can be held to be repugnant. In the circumstances .this appeal is liable to be dismissed with no order as to costs. Q. M. H. /M. A. K./S‑38/K