2012 YLR 2376 (PLP)

SALMAN HAMID, J.

Per learned counsel for the petitioner, deceased Mst. Sadia Ashraf preferred Rent Case No.691 of 1996, (Rent Case) against Bombay Furniture Mart (respondent No.2) for eviction on the grounds of personal bona fide need and default. Rent case was dismissed by the VIII-Rent Controller Karachi; East, (Rent Controller) in terms of Order dated 31-1-2000. (Order) First Rent Appeal No.268 of 2000. New First Rent Appeal No.512 of 2001 (FRA) was preferred, which too, in terms of Judgment dated 6-1-2003, (Judgment) was dismissed by the District Judge, Karachi, East (DJ East). This Constitutional Petition, '(Petition) is an outcome of Order and the Judgment.

2. It was asserted by the learned counsel for the petitioner that the two courts below failed to appreciate that the petitioner was the owner of Shop No.1, Plot No.5/D, Nursery, Block-VI, Commercial Area PECHS, Karachi, (Demised Shop) and therefore deceased Mst. Sadia Ashraf was entitled to have possession thereof on the ground of personal need and that the two courts below also failed to appreciate that though it was specifically asserted in the Rent Case and in the FRA that default was made by the respondent No.2 of the Demised Shop, such too was not appreciated, more particularly, when it (default) was not disputed or denied by the respondent No.2, at all.

3. On the other hand learned counsel .for the respondent No.2 ,argued that the ground of default was not raised either in the Rent Case or in the FRA and such was brought up for the first time through the instant Petition and was therefore not permissible. As to the personal bona fide need, it was stated that since such was given up by the petitioner after demise of Mst: Sadia Ashraf, who pleaded personal bona fide need, no rebuttal argument was required. It was, therefore, implored that the petition was merit less and deserves dismissal.

4. I have considered the arguments on either end and have also perused the record. Since the personal need upon demise of Mst. Sadia Ashraf was not pressed by the petitioner, same require no discussion. Coming to default, it may be noted that in paragraph 9 of the Rent Case, it was pleaded that the respondent No.2 failed to pay and clear water and sewerage charges amounting to Rs.4176 for the years 1993-94, 1994-95 and 1995-96 in respect of the whole building. Similarly, in affidavit in evidence of Mst. Sadia Ashraf it was mentioned in paragraph 2 that rent was last paid by respondent No.2 in the month of September, 1996 vide Rent Receipt No.287 dated 19-9-1996. In the same affidavit in evidence it was reiterated in paragraph 9 that the respondent No.2 has not paid and cleared water and sewerage charges amounting to Rs.4176 for the period 1993-1994, 1994-1995 and 1995-1996. In paragraph 15 of the affidavit in evidence, again it was asserted by deceased Mst. Sadia Ashraf that monthly rent of the Demised Shop was deposited by the respondent No.2 in 'Miscellaneous Rent Case No.603 of 1996, (MRC) before which money order was sent. In paragraph 17 of the affidavit in evidence it was deposed by Mst. Sadia Ashraf that rent was never refused for the month of October, 1996 and that the respondent No.2 deposited monthly rent in court in her name with ulterior motives of harassment and again in paragraph 19 of the affidavit in evidence it was once again mentioned that it was the duty of respondent No.2 to make payment of water and conservancy charges as the respondent No.2 had agreed to making payment of such water and conservancy charges upon signing of the terms and conditions printed` on the backside of the rent receipt and also because of the fact that the respondent No.2 was required to make payment of such water and conservancy charges to the authorities concerned and such was not the duty of the owner of the building. Demised Shop admittedly is a part of the building.

5. In above view of the matter, regarding default in payment of rent, it amply came on record that such was not paid by the respondent No.2 to the Petitioners and/or deceased Mst. Sadia Ashraf. Per section 2(i) of Sindh Rented Premises Ordinance, 1979 (SRPO 1979), "rent", includes water charges, electricity charges and such other charges which are payable by the 'tenant but are unpaid. It would be evident from the record of the file, particularly from written statement filed by respondent No.2 in the Rent Case that despite specific allegation of non-payment of water and conservancy charges by the respondent No.2, (as contained in paragraph 9 of the Rent Case), the respondent No.2 did not deny or even answered paragraph 9 of the Rent Case when it comes to non-payment of water and conservancy charges being part of the rent per section 2(i) of SRPO 1979. It is also a matter of record that the respondent No.2, despite opportunities did not lead evidence to rebut petitioners' case and their (petitioners') claim went unchallenged. Needless to observe that it is a well-settled principle of law that where a party fails to produce evidence to support contents of its written statement, then in absence of any admission on the part of plaintiff, averments contained in such written statement could not be treated as evidence. Given that the respondent No.2 altogether failed to rebut the ground of default and also failed to lead evidence in respect thereof, the principle highlighted is fully applicable. In such view of the matter, respondent No.2's counsel argument that default was not pleaded in the Rent Case or the FRA is incorrect. Ground of default was also raised and/or reiterated in FRA. Perusal of paragraph 4 of FRA would show that it was clearly mentioned that the Rent Case was filed on the grounds of, "personal need and default in payment of rent" and that in -the same paragraph it was again stated that, "It is also the case of the appellant that the respondent defaulted in payment [of] rent as well as in payment of water charges for the years i.e. 1993-1994, 1994-1995 and 1995-1996." It was also mentioned in the FRA in paragraph 6 that, "The question of default was not discussed at all by the Rent Controller." In ground 'E' of FRA it was again asserted that, "The Rent Controller also ignored the appellant's plea of default in payment of rent for the months of June, 1996 and onwards as well as payment of water charges for the years 1993-1994, 1994-1995 and 1995-1996.". In this view of the matter, I have come to the conclusion that not only the two courts below failed to misread the evidence but such courts also grossly failed to apply the law in its true nature and perspective and came to the conclusion not sustainable in law. The three precedents i.e. Muhammad Sharif and another v. Muhammad Afzal Sohail and others (PLD 1981 Supreme Court 246), Mst. Mussarat Begum v. Muhammad Sultan and 3 others (2009 YLR 474) and Muhammad Latif v. District Judge Karachi (South) and others (2009 YLR 2234) cited by the learned counsel for the respondent No.2, under the facts and circumstances of the case, are not applicable as in such precedents the courts did not interfere into the findings of the two courts below when they came to the conclusion that there was no misreading and/or non-reading of evidence and that also there was no misapplication of law.

6. For the above reasons I allow this petition and direct the respondent No.2 to vacate the Demised Shop and hand over vacant and peaceful possession thereof to the petitioners within 60 days from the date of this judgment, in failure whereof the Rent Controller shall issue writ of possession of the Demised Shop without notice to the respondent No.2. Petition disposed of accordingly. KMZ/S-15/K?????????????????????????????????????????????????????????????????????????????????????? Petition allowed.