1999 PLP 28 (SCMR)

MAMOON KAZI, J.

The appellant was the respondent's tenant in shops Nos.1 and 2 situated in the building known as Tahir Manzil, on Plots Nos.66 and 68 in the Central Commercial Area, P.E.C.H.S., Karachi, at a monthly rent of Rs.610. Rent for the premises was payable in advance on or before the 7th day of each calendar month. The appellant was also liable to pay electricity charges-to the respondent. The respondent instituted eviction proceedings because, according to him, the appellant had committed default in payment of rent due from January, 1985 to March, 1985. He had also, failed to pay electricity charges. The premises had also been handed over by him to some other person and damage had been caused to a bathroom do9r. - The said allegations were however, denied by the appellant who filed his own affidavit as well as that of his witnesses, Muhammad Jawad Kurd, Mumtaz Ahmad and Azhar Muhammad. The Rent Controller upon the evidence respectively adduced by the parties, came to the conclusion that the appellant was a defaulter both in payment of rent as well as the electricity charges. He was, however, not impressed in respect of the other grounds raised in the eviction application, The appellant filed appeal before the High Court of Sindh, but the same was dismissed. The learned Ridge in Chambers was convinced that, there was a mutual agreement between the parties according to which, rent was pay able by the appellant in advance on or before the 7th day of each calendar month. Consequently, according to him, default would occur if the tenant failed to pay or tender rent within fifteen days from such date. The words "mutual agreement" occurring in paragraph (ii) of section 15(2) of the Rented Premises Ordinance, according to him, would include even an oral agreement, therefore, such agreement need not be in writing. The learned Judge also found that default had been committed by the appellant in respect of payment of electricity charges. For such reasons, the appeal was dismissed vide judgment dated 23-12-1993 and the order passed by the Rent Controller was upheld. Leave was granted by this Court to examine whether any period for payment of rent had been fixed by a mutual agreement between the parties. Mr. Naraindas Motiani has argued that rent application had earlier been filed by the respondent against the appellant but the matter was compromised. However, neither the ejectment application nor the compromise indicate that there was such mutual agreement between the parties. Therefore, rent had been tendered by the appellant within the period of sixty days as provided by section 15(2) (ii) and there was no default committed by the appellant. Reference was also made by Mr. Motiani to section 10 of the Sindh Rented Premises Ordinance as subsection (1) thereof provides as under:-- "

10. Payment of rent.

(1) The rent shall, in the absence of any date fixed in this behalf by mutual agreement between the landlord and -tenant, be paid not later than the tenth of the month next following the month for which it is due."' J Support has been sought by Mr. Motiani from two judgments of this Court in Shezan Limited v. Abdul Ghaffar (1992 SCMR 2400) and ' Sir E.H. Jaffar and Sons Ltd v. Sultan Karam Ali (1995 SCMR 330), wherein it has been held that in absence of any mutual agreement between the landlord and the tenant fixing any period for payment of rent, no default would be deemed to be committed if rent is paid or tendered to the landlord within seventy days from the, time it becomes payable, which period would also include ten days, as provided under section 10(l) of the Sindh Rented Premises Ordinance. The view taken in the said judgments was followed in State Life Insurance Corporation of Pakistan, Karachi v. Messrs Siddique Tailors (PLD 1993 Kar.642). On the question of default in respect of payment of electricity charges, reliance has been placed by Mr. Motiani on Mst Rehana Begurn v. Mst. Shagufta (1995 SCMR 323), Muhammad Anwar v. Syed Muhammad Sadiq (1993 CLC 1819) and Abdul Kahaliq v. Ghulam Abbas Bhatti (1981 CLC 1114) wherein it was laid down that default would occur only if such charges are payable by the tenant to the landlord but have not been paid. We are afraid, none of the contentions raised by Mr. Motiani merits consideration. The respondent's claim that, by a mutual agreement between the parties, rent was payable in advance before the seventh of each calendar month' was not challenged during the cross-examination of the respondent's attorney. I Therefore, the learned Judge in the High Court, while relying upon the, judgment of this Court in Mst. Nur Jehan v. Syed Mujtaba Ali Naqvi (19911 .SCMR 2300) concluded that the truth of the statement made by the said attorney had been established. Consequently, notwithstanding the fact that no written agreement was produced by the landlord in this regard, default would occur if rent was not paid by the tenant within fifteen days of such period, if it had been fixed by mutual agreement between the parties. Such agreement could even be an oral agreement between the parties. Therefore, in our view, the view taken by the learned Judge in Chambers appears to be correct and the same is not open to! exception. Even on the question of default in respect of payment of electricity charges, the onus clearly was on the appellant to show that no default had been committed in this regard. According to the "Explanation" incorporated in section 13 of the Urban Rent Restriction Ordinance, subsection (2), when electricity charges are payable by the tenant to the landlord, such charges shall be deemed to be rent. However, in the Sindh Rented Premises Ordinance "rent" has been defined and the definition also includes electricity charges, in case such charges are payable by the tenant but the same have remained unpaid. In the present case, there appears to be no controversy over the fact that payment of electricity charges to the KESC was the responsibility of the appellant. The evidence recorded before the Rent Controller indicates that electricity bills were directly received by the appellant and their payment was also his responsibility. The evidence further indicates that electricity was disconnected by the KESC as its bills mounting to Rs.4,753 had remained outstanding against the appellant. It appears that no satisfactory evidence could be produced by the appellant before the, Rent Controller in rebuttal. Reliance, therefore, by Mr. Naraindas Motiani upon the judgment of this Court in Rehana Begum v. Shagufta (1995 SCMR 323) appears to be completely misplaced as in this case the landlady had failed to prove that default had been committed by the tenant in respect of electricity charges and the findings arrived at by the Courts below in this regard had been found to be based on misreading of evidence. But in the present case, electricity! charges being included in the definition of "rent", and the tenant being liable to pay the same, would make himself liable for ejectment in case of their non payment when the same is clearly established by evidence before the Rent Controller. Consequently, we ' are of the view that the judgment of the learned Judge in Chambers & not open to exception and the view taken by him on the question of default is based on correct appreciation of evidence. In the result, the appeal is dismissed. A.A./A-109/S Appeal dismissed.