2016 PLP 109 (CLCN)

SHAHNAWAZ TARIQ, J.

Through the captioned petition, petitioner Ayub Lambat Advocate has invoked the Constitutional jurisdiction of this Court under Article 199 of the Constitution, and agitated the judgment dated 27.07.2011, passed by the learned appellate Court of VII Additional District Judge, Karachi South, whereby FRA No.373/2010 filed by the petitioner was declined.

2. The relevant facts spelt out from the instant petition are that the respondent No.1 is landlord and the petitioner is tenant in respect of tenement bearing room No.19, 2nd Floor, Valika Chamber, Altaf Hussain Road, New Chali, Karachi. The demised premises was let out in the year 1953/54, under the oral rent agreement on the monthly rent of Rs.292/- per month, excluding electricity charges which are to be paid by the petitioner directly to K.E.S.C. The monthly rent was enhanced from time to time and at present the petitioner is paying rent at the rate of Rs.500/- per month. The petitioner closed the said office, however, has been paying rent accumulatively for several months. It is further averred that respondent No.1 obtained copy of the bill from K.E.S.C. showing arrears against the petitioner for Rs.1,27,384.53 up to 16-04-2003, as such, the petitioner has infringed the condition on which the tenement in question was let out to him, therefore, the respondent No.1 filed ejectment application against the petitioner.

3. The petitioner contested the rent application and filed written statement and admitted the relationship between the landlord and tenant and rate of monthly rent, however, denied the allegations made by the respondent. It is also asserted that K.E.S.C. had issued a wrong and excess bill for Rs.1,27,384.53, which was corrected and the petitioner paid K.E.S.C. bill upto date and has not committed any default in this regard and prayed for dismissal of ejectment application.

4. On behalf of the respondent No.1, its Director namely Kamaruddin Valika filed affidavit-in-evidence and was cross-examined by the learned counsel for the petitioner. In rebuttal, the petitioner filed affidavit-in-evidence and produced certain documents in support of his claim and was cross-examined by the learned counsel for the respondent.

5. From the pleading of the parties, the learned Rent Controller framed following points for determination:- i. Whether the opponent has infringed the condition on which the case premises was let-out? ii. What should the order be?

6. After hearing the parties and evaluating the evidence, the learned Rent Controller allowed ejectment application on the point of default in payment of K.E.S.C. bill and infringement of the condition of tenancy on which the tenement in question was let out.

7. Learned counsel for the petitioner contended that the impugned judgment is illegal, void and without considering the relevant facts and appreciating the evidence adduced by the parties. He further submitted that the learned appellate Court has failed to appreciate that no written tenancy agreement was executed between the landlord and tenant as such the question of any infringement of the terms and conditions could not be determined after 50 years of the commencement of the oral tenancy. He submitted that the rent application has been filed without any proof or solid evidence that the petitioner had committed any default in payment of K.E.S.C. bills. He further submitted that the respondent No.1 sent letter to the petitioner mentioning therein that the payment of K.E.S.C. bill is a matter between the petitioner and K.E.S.C., but the learned appellate Court has not considered the said vital fact. The demised premises was let out on goodwill basis by the landlord in the year 1954. He submitted that the impugned judgment is based on the point of default in payment of electricity bill, but the learned appellate Court has not appreciated that K.E.S.C. issued a wrong and excess bill which was paid by the petitioner after its necessary correction for the sum of Rs.19,000/-.

8. Learned counsel for petitioner also submitted that the petitioner vide statement dated 09.09.2014, has filed paid K.E.S.C. bill dated 19.05.2010 and acknowledgment receipt dated 18.05.2004 for payment of K.E.S.C. dues for Rs.19915/- regarding the disputed bill which were already filed in main rent case. He contended that respondent No.1 in rent application has not specifically mentioned the period of default committed by the petitioner regarding payment of K.E.S.C. bill. Neither disconnection notice was ever issued to the respondent No.1 by K.E.S.C. nor electric meter installed in the name of the petitioner was disconnected due to non-payment of bill. The appellate Court has failed to rectify the error in the findings of learned Rent Controller which were purely based on non-reading and misreading of the evidence.

9. Learned counsel for the respondent No.1 vehemently submitted that the demised premises is not in use of the petitioner for several years and the electricity bills were not being paid by the petitioner, therefore, latest electricity bill was obtained from K.E.S.C., showing arrears for Rs.1,27,384.53 upto 16.04.2003 against the meter installed on the name of the petitioner. He submitted that the petitioner had deposited the electricity bill to K.E.S.C. after committing default as such the petitioner has infringed the conditions on which premises was let out, therefore, learned Rent Controller and learned appellate Court have passed concurrent findings in favour of respondent No. 1, and petition is liable to be dismissed.

10. In case of Muhammad Usman and others v. Dr. Muhammad Hanif 1999 SCMR 2234, the Hon'ble Supreme Court has observed as follows:- "We may also point out that if under terms of 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 disconnect the supply thereby impair the utility and the value of the demised premises": The Hon'ble Supreme Court has further held that: "Now adverting to facts of present case it is quite apparent that electricity bills authenticity whereof had been challenged from very inception were actually corrected by KESC thus stance taken by appellants stood duly established. On rectification of electricity bills, entire amount was obviously cleared. The circumstances manifestly disclose that default in payment of Electricity charges or non-compliance of the order by the appellant is neither lawful nor deliberate. The vents clearly reveals that respondent did not have valid cause of action for initiating eviction proceedings merely on the ground of default in payment of above defective bill. Both the forums have grossly erred in ignoring the true factual aspect. Besides, while making tentative direction for depositing arrears of Electricity charges, learned Rent Controller had blatantly disregard the essential requirements of law. Since original order of Rent Controller dated: 9th February, 1994 was inherently defective, therefore, all subsequent action culminating in impugned judgment being devoid of lawful authority would crumble down".

11. In case of Abdul Ghani through LRs v. Messrs Caltex Oil Pakistan Limited, 2010 SCMR 771, the Honorable Supreme Court has observed that:- "Period of default in payment of rent had not been mentioned in the ejectment application, plea raised by the landlord during evidence was non-payment of increase annual rent by the tenant. Landlord had not raised such plea in the ejectment petition, thus, same was an improvement in course of evidence, ejectment petition was dismissed in the circumstance."

12. For appropriate conclusion of the controversy it would be proper to discuss the relevant portion of evidence of the parties. The relevant part of cross-examination of Kamaruddin Valika Director of the respondent/landlord is reproduced as under:- "It is correct my elder brother Fakhruddin Ibrahimji Valika had rented out the case premises in the year 1954 or 1958. It is not in my knowledge that whether tenancy agreement was executed between the parties are not. It is correct that opponent has not committed default in payment of rent and has been paying the rent regularly. It is correct for the last many years the water connections and the electricity are not available on some portions of the building. It is correct that applicant has been paying the electricity charges as per bill directly to the K.E.S.C. I do not remember whether K.E.S.C. has sent any notice specifically against the opponent for non-payment of electricity charges to KESC. Vol: says the K.E.S.C. sent the General Notice for all the defaulter/tenants to the landlord. I do not remember whether the KESC had served any notice directly to me regarding the default in payment of electricity charges of KESC by the opponent as well as other tenants. Vol: says that we sent the letter to KESC regarding the default in electricity charges if paid by the tenants and KESC in the reply disclosed that the amount Rs.1,24,000/- or Rs.1,23,000/- was adjusted and reduced by the KESC which was wrongly sent to the opponent, and which was corrected and the opponent made payment of Rs.29,427/- to KESC. I do not know whether the KESC had disconnected or not the meter affixed in the case premises.

13. The relevant portion of cross-examination of petitioner Ayub Lambat is reproduced as under:- "The tenancy commenced in between above 1953 or 1954. It is correct that as per terms and conditions of oral tenancy agreement the tenant/opponent is liable to pay the electricity dues directly to the K.E.S.C. It is correct that at the time of filing present case the amount of Rs.1,27,384.2 was outstanding against me. Vol: says since the bill was incorrect it was later on rectified by the K.E.S.C. and acknowledgment receipt has already been filed with my affidavit in evidence. It is correct that I have filed the receipt along with statement. I have paid the dues to K.E.S.C. of Rs.19915/ - in installments of Rs.5000/ -. It is correct I have filed statement on 19.05.2004, annexed two letters dated 10.05.2004 written by me to the manager Revenue office of K.E.S.C. Karim Chamber of Karachi for issuance clearance certificate of meter No.AL-037150. I see Exh-O/22. which is acknowledgment receipt and it is mentioned therein that the payment from 16.12.1995 to 16.01.2004 was made by me. It is correct I have filed a statement on 09.02.2004 and annexed the K.E.S.C. receipts of paid bill of Rs.19000/ - which was paid by me in four installments. The payment shown in statement dated 09.02.2004 is correct. It is correct I have paid the electricity dues of Rs.19000/ - in four installments and I have annexed four receipts of paid bill of amount of Rs.19000/-. It is incorrect to suggest that I have committed the breach of terms and conditions of oral tenancy agreement."

14. Kamaruddin Valika, Director of the respondent No.1, sent letter dated 10th January 2004, to the petitioner is reproduced as under:- "To, Ayub Lambat S/O not known Muslim, adult, carrying on business under the name and style of Lambat and Company, in office/room No.19, second floor of Valika Chambers, Altaf Hussain Road, New Chali, Karachi. Dear Sir, While going through the contents of your written statement filed in Rent Case No.1096/2003, we noted with displeasure your submissions that we are in the habit of (1) Receiving monthly rent accumulatively in lump-sum, (2) That on our refusal of acknowledging monthly rent in writing, you started remitting monthly rent through postal money order, and further (3) That payment of KESC bill is a matter between you and the KESC. We refute your contentions strongly as the above points are involved in the pending case, we would therefore, abstain from making any comment. In the meanwhile we call upon you to tender monthly rent personally in cash and obtained valid rent receipt against such payment. Kindly treat this letter as urgent. Yours' faithfully (Kamrauddin Valika) Karachi Dated: 10.01.2004.

15. Acknowledgment receipt dated 18th May, 2004 issued by Karachi Electric Supply Corporation Ltd in favour of the petitioner is reproduced as under:- "THE KARACHI ELECTRIC SUPPLY CORPORATION LTD. Managing Agents: THE PAKISTAN ELECTIRC AGENCIES LTD. Ref: CM(CM2)/04/329 Date: 18TH May, 2004 SUBJECT: ACKNOWLEDGEMENT RECEIPT This is to certified that M/s. Ismail D. Lambat and Co. Account number 0437631600106 Consumer#AL-037150 has duly paid KESC dues Rs.19,915/- for the period from 16.12.1995 to 16.01.2004 against excessive billing now the same wrong billing has been cancelled (subject to approval) the case sent to allowance committee for final approval. Now clearance certificate is being issued to him for acknowledgment receipt. Tasneem Usmani Commercial Manager"

16. The operative part of the impugned order dated 28.08.2014, passed by learned Rent Controller is as under:- "After hearing the arguments of learned advocates for the parties I have no hesitation to say that opponent has infringed the terms and conditions on which basis the premises in question was let out to him. No doubt that there is no tenancy agreement in written between the parties but the opponent himself admitted in his affidavit in evidence that he was under obligation to pay electricity bill, directly to KESC but admittedly he has deposited the electricity charges after committing default in payment of such charges and for a long period. The evidence adduced by the opponent clearly shows that he has infringed the conditions on which he was let out the case premises, thus he is liable to be ejected from the case premises. Rent Case No.1096/2003 is allowed, opponent is directed to vacate the case premises and hand over its physical and peaceful possession to the applicant within 60 days from the date of this order."

17. The operative part of impugned judgment dated 27.11.2011, passed by learned appellate Court is as under:- "In view of the above stated facts and circumstances, of the case I come to the conclusion that the learned Rent Controller has rightly passed the impugned order and the appellant has not pointed out any illegality or irregularity in it, thus, I find no reason to interfere with the findings of the learned Rent Controller. Consequently, the appeal is hereby dismissed with no order as to costs."

18. From perusal of the record and consideration of arguments advanced by the parties supported with case law, reflect that admittedly the demised premises was rented out to the petitioner in the year 1953/1954, without execution of written tenancy agreement and with the passage of time monthly rent was also enhanced and petitioner has been paying the rent regularly to the respondent No.1 and on the pretext of non-payment of rent neither any notice was issued to the petitioner nor any rent application was filed during the entire tenure of tenancy. It is also worthwhile to mention that no detail of violations of terms and conditions of tenancy have been mentioned in rent application and admittedly no written tenancy agreement was executed between the parties.

19. It is significant to mention that a separate electric meter bearing No. AL-037150, was installed in the name of the petitioner and as per the agreed condition of the tenancy, the petitioner has to pay electricity dues directly to K.E.S.C. From perusal of above referred letter dated 10.01.2004 sent by the respondent No.1, it is clear that payment of K.E.S.C. bill was a matter between the petitioner and K.E.S.C.

20. It is essential to mention that the respondent No.1 has failed to mention the specific period of default in rent application, therefore, allegations of default cannot be improved in his evidence. During the cross-examination, the witness of the respondent No.1 admitted that petitioner had not committed default in payment of rent and has been paying the rent regularly. The witness was unaware whether K.E.S.C. had ever sent any notice against the petitioner for non-payment of electricity charges to K.E.S.C, but he voluntarily stated that K.E.S.C. had sent a general notice for all the defaulters. The witness was also unaware whether K.E.S.C. had served any notice directly upon the landlord regarding the default in payment of electricity charges by the petitioner. He further stated that the amount of Rs.1,24,000/- of disputed bill was adjusted and reduced by the K.E.S.C. which was wrongly sent to the petitioner and was corrected by K.E.S.C., and the petitioner had made payment of Rs.29,427/-.

21. The petitioner has also filed copy of acknowledgement receipt dated 18.05.2004, issued by the Commercial Manager of K.E.S.C. that petitioner has paid K.E.S.C. dues for Rs.19,915/- for the period from 16.12.1995 to 16.01.2004 against excess bill and the same wrong billing had been cancelled, and such clearance certificate was being issued to him for acknowledgment receipt.

22. From the above facts and circumstances, it has established that the petitioner has been paying monthly rent regularly to the respondent No. 1 and he has not committed any default till date. As per the condition of verbal tenancy, a separate meter was installed by K.E.S.C. in the name of the petitioner and he has been paying K.E.S.C. charges by himself directly and the respondent No.1 has no role in this regard. It is also undeniable fact that a wrong and excess bill was issued by K.E.S.C., whereby an amount of Rs.1,27,384.53 was shown as outstanding bill, however, the petitioner approached the concerned quarter and ultimately wrong bill was corrected and petitioner has paid an amount of Rs.19,915/- to K.E.S.C. and clearance certificate showing no outstanding dues against the petitioner has also been issued by the commercial manager of K.E.S.C. It is also an admitted fact that neither the disconnection notice was ever issued by the K.E.S.C. nor electric meter disconnected for want of outstanding dues, therefore, the respondent No.1 has no legal substance for filing rent application on the ground of default in payment of K.E.S.C. bill. It is also an admitted fact that tenancy was commenced in the year 1953/1954 without execution of written tenancy agreement.

23. Consequently, I am clear in my mind that it is incumbent upon the landlord to narrate all the relevant and necessary details of his claim by elaborating and focusing upon each and every feature relating to his claim in the rent application and if he fails to do so, the incomplete claim cannot be improved and advanced through the evidence and such improvement would be fatal to his/her imperfect claim. Furthermore, neither the landlord nor the tenant can approach the Rent Controller for the alleged violation of the terms and conditions of an oral agreement nor they can emphasize for implementation of any such condition based on the oral agreement, therefore, the respondent No.1 cannot knock the door of the Court on the pretext of any violation of the agreed terms and condition regarding the oral tenancy.

24. The perusal of the above facts and circumstances has spelt out that the concurrent findings of both the Courts below are outcome of non-reading and misreading of the evidence adduced by the parties supported with their documents, and Courts below have failed to appreciate the relevant facts and ground, while passing the impugned judgments. Consequently, the concurrent findings of both the Courts below are set-aside and ejectment application filed by the respondent No.1 stands dismissed. ZC/A-156/Sindh Petition allowed.