2002 PLP 1744 (MLD)

MUSHIR ALAM, J.‑‑‑Through this Constitutional petition under Article 199 of Islamic Republic of Pakistan, 1973, petitioner has challenged the order dated 8‑3‑2002 passed by learned 2nd Additional Sessions Judge, Karachi. South in First Rent Appeal (Old No.101 of 1999) New No.929 of 2001 whereby the Order dated 28‑1‑1999 passed by learned Vth Rent Controller, Karachi South, striking off the defence of the petitioner under section 16(2) of the Sindh Rented Premises Ordincnce,1979 was maintained and the petitioner was directed to hand over the peaceful vacant possession of the premises in question within 30 days from the date of said orders. Briefly stating, facts as are relevant for deciding this petition are that respondent No.1 let out the subject premises being Bungalow No.D‑27/1, Block 5, situated at Clifton; Karachi, to the petitioner under the Tenancy Agreement dated 18‑9‑1996 at the rate of Rs.(sic) per month together with Tenancy Agreement. (sic) Hire Agreement in respect of fixtures and fittings and other attachment fixed in the subject property was also executed on the 'same date and' the` rent of said fixtures and fittings was fixed at Rs.18,000 per month. From the record, it appears that the petitioner after expiry of the tenancy and hire agreement regretted to honour the commitment made under the Hire Agreement and refused to pay rent in respect 'thereof which led to the present dispute Consequently, ejectment application was filed on the ground of default in payment of rent under the hire agreement. Learned Rent Controller on an application under section 16(1) of the Sindh Rented Premises Ordinance, 1979 vide Order dated 26‑LO‑1998 directed the petitioner to deposit the arrears of rent in respect of the subject premises in the sum of Rs.28,000 which included hiring charges of Rs.18,000 within 45 days from the date of order with effect from 15‑5‑1997. The petitioner not being satisfied with the said order filed an application under section 19(21 of the Sindh Rented Premises Ordinance, 1979 read with section 21,`General Clauses Act seeking recall, of such order on the ground, inter alia. That the learned Rent Controller had no jurisdiction to pass order under section 16(1) of S.R.P.O., 1979 in respect of hiring charges and the respondent No. l on failure of the petitioner to deposit rent as directed by the Rent Controller, filed an application under section 16(2), S.R.P.O., 1979, for striking off the defence. Learned Rent Controller vide order dated 28‑1‑1999 allowed the application under section 16(2), S.R.P.O., 1979 and the same time dismissed the application under section 19(2) of the Sindh Rented Premises Ordinance, 1979, which order has been impugned through this petition. Case of the petitioner, in nutshell, is that the hiring charges are not part of the rent, therefore, at the very outset direction for deposit of the said charges under section 16(1) of S.R.P.O., 1979 was illegal and noncompliance of such an order does not entail any consequence of default. In support of his contention, learned counsel for the petitioner has placed reliance on Muhammad Ismail v. Abdul Habib ,(PLD 1993 Karachi 181), Tahir Hussain Gardezi v. Abid Hussain Qureshi (1986 MLD 2980) and lastly Dr. Riaz Ahmed v. Sabir Ali Hojani (PLD 1994 Karachi 446). In Muhammad Ismail's case landlord sought the eviction of a tenant from a Saw Mill and the leaned Single Judge placing reliance on Bashir Ahmed v Mst. Zubaida Khatoon (1983 CLC 390) and International Fisheries Pakistan Limited v. M/s Standard Fisheries Corporation (1983 CLC 394) came to a conclusion that the saw mill does not qualify to be building and/or premises as defined under section 2(a) of S.R.P.O., 1979 and the machinery installed in the factory or the saw mill was not considered to be a fixture within the meaning thereof. Therefore, this case is of no avail to the learned counsel for the petitioner. Case of Tahir Hussain Gardezi, is to the effect that where the Rent Controller did not pass the order in conformity with the provision of section 16(1) of S.R.P.O, 1979: such order cannot be sustained and no eviction would follow. The case which was heavily relied upon to the learned counsel for the petitioner in, support of his contention is of Riaz Ahmed (supra) wherein, a house let out by the, landlord under the Lease Agreement as well as Hire Agreement a situation similar to the instant proceedings. In said case orders under section 16(1), S.R.P.O 1979 were passed for deposit of rent as well as hiring charges. Application under section, 16(2) of S.R.P.O., 1979 was opposed by, the appellant therein on the ground, inter alia that the fixtures: and fittings agreed to be provided under the Hire Agreement were never provided and they are not obliged to deposit the same and such conclusion was drawn after the full dress trial and evidence was led by all the parties At page 450, the learned Judge in Chamber after taking into consideration, the definition of `rent' as given in S.R.O.P, 1979 and. so also taking stock of the provision under Urban. Rent Restriction Ordinance, 1959 had drawn a conclusion as follows:

"In view of the statutory provision above, I am of the view that hiring charges for fixtures in a demised premises are part of the rent and are covered by definition of rent given under clause (i) of section 2 of the Ordinance However, in consideration of fact that landlord failed to substantiate his plea that fixtures and fittings as described in the hire agreement were provided to the tenant, Court came to a conclusion that such charges are not recoverable and application tinder the circumstances of the case was dismissed. Therefore, the contention of learned counsel for the petitioner that hiring charges do not form the rent arid has not been substantiated. It will be advantageous to refer to definition of rent given in section 2(1) of S.R.P.O., 1979' which reads, as follows:‑‑ Rent includes, water charges, electricity charges and such other charges which are payable by' the tenant but are unpaid. In this context the definition of `building' is also relevant as defined under section 2(a) building means any building or part thereof together with all fittings and fixtures therein, if any and includes any garden, garrage, outhouse and open space attached or appurtenant thereto; From a bare perusal of the definition of `building, it is clear that fittings and fixtures are included within the definition of "building.", looking at the definition of the rent which include "such other charges" such term is wide enough to encompass charges of fixtures and fittings as, referred to in the definition clause of building. There is nothing in the S.R.P.O., 1979 which prohibits leasing out of such fixtures and fittings attached with building. Hiring charges for the fixtures and fittings in a rented premises are parts of the rent as defined under the definition 2(i) (ibid). It is not the case of the petitioner that such fixtures and fittings were not provided to him as was the position in the case of Riaz Ahmed (supra). On the contrary, it appears that petitioner turned dishonest while refusing to pay such hiring charges for the fixtures and fittings details of which are given in the schedule to the Hire Agreement duly signed by both the parties. It is admitted that the petitioner did not pay hiring charges at the rate of Rs.18,000 p.m. from May 1997 and same were only deposited after the direction given in appeal. The upshot of the above discussion, we do not see any misreading or non‑reading of the evidence nor any error in the judgment has been pointed out by learned counsel for the petitioner and as such this petition having no force on merits was dismissed in limine by short order dated 7‑5‑2002 alongwith the listed applications and these are the reasons for the same. S.A.K./R‑71/K Petition dismissed.