1999 PLP 2234 (SCMR)

MUNAWAR AIJMED MIRZA, J.

These appeals, by leave of the Court, are directed against common judgment, dated 7-12-1994 passed by the High Court of Sindh, Karachi, in 1ZF4 . NPs.426 and 427 of 1994.

2. Facts briefly mentioned are that respondent Dr. Muhammad Hanif, on 9-12-1992 filed two ejectment applications (RC Nps. ~2 and 883 of 1992) for eviction of appellants from shops Nos .10 and 11, Hanif Market, Block-M. North Nazimabad, Karachi, before Senior Civil Judge-II and Rent Controller, Karachi Central, under section 15(2) read with section 2(i) of Sindh Rented Premises Ordinance, 1979 (hereinafter referred as 'Rent Ordinance') on the ground of default in the payment of electricity dues amounting to Rs.16,249 and Rs.7,482 respectively chargeable up to November, 1992. Appellants contested the proceedings and filed separate written statements on 29-4-1993. It was specifically pleaded that respondent-landlord had manoeuvres the issuance of exorbitant electricity bills by approaching official of Karachi Electric Supply Corporation (KESC) and representation for rectifying the same was pending consideration before appropriate competent authority. Assertions concerning default were thus vehemently repudiated. Trial Court vide order, dated 9-2-1994 directed the appellants to deposit above amounts (Rs.16,249 and 7,482 respectively) relating to alleged arrears of Electricity Charges for the demised premises with Nazir of the Court before 14-3-1994 besides continuing to deposit rent before 10th of each calendar month.

3. It may be seen that the above orders could not be complied with because, according to appellants, they have been pursuing the matter before Karachi Electric Supply Corporation (KESC) for correction of the bills. Accordingly viewing the failure of appellants to comply with above direction the trial Court vide order, dated 21-4-1994 by striking their defence within the purview of section 16(2) of 'Rent Ordinance' directed the appellants to hand over vacant possession of respective premises to respondent. _

4. Appellants being aggrieved from above ejectment order approached High Court of Sindh, Karachi, by way of Appeals (RFAs. Nos.426 and 427 of 1994) which were eventually dismissed by common judgment, dated 7-12-1994.

5. Appellants feeling dissatisfied from above decision preferred Civil Petitions Nos.49-K and 50-K of 1995 before this Court. Leave was, however, granted on 7-8-1995. Operative portion of said order is reproduced below:-- "There is no written agreement of tenancy between the parties in the above cases and it is not disputed before us that the electricity charges in respect of the demised premises were to be paid by the tenant petitioners directly to the K.E.S.C. In these circumstances, the question whether the petitioners could be evicted from the premises on account of default in payment of electricity charges of K.E.S.C. under section 15(1) of the Ordinance requires consideration. We, accordingly, grant leave to appeal to consider the same. Ejectment orders passed in the cases are stayed until decision of the appeals."

6. Mr. Mubarak Hussain Siddiqui, Advocate Supreme Court, appeared on behalf of appellants. Whereas Mr. Ali Akbar, Advocate Supreme Court and Advocate-on-Record, for respondent. Dr. Muhammad Hanif has sent a statement showing inability to attend these appeals on account of respondent's failure to pay professional fees and travelling expenditure besides want of instructions. Since respondent through his counsel is deemed to have knowledge about 8 hearing of appeals, therefore, he is proceeded against ex parte.

7. Arguments were addressed by learned counsel for appellants. It was strenuously urged, that trial Court while passing tentative order regarding deposit of electricity charges had ignored specific defence pleaded by the appellants. Learned counsel stressed that bona fide of appellants and background of circumstances was not taken into consideration by the trial Court even while striking-the defence which thus resulted in miscarriage of justice. It has been emphatically contended that learned Judge in Chamber of High Court of Sindh had also failed to examine objections which had been raised while challenging glaring defects Which existed in the above orders of the trial Court. Learned counsel further argued that appellants had taken up the matter with K.E.S.C. who ultimately corrected the electricity bills whereupon entire amount thus payable was immediately paid/cleared. It was also contended that there was no written tenancy between the parties, therefore, ejectment from the demised premises merely on the ground of failure to pay electricity charges was untenable. 8, We have carefully perused the record and considered all aspects of the case in the light of above submissions. There is no doubt that Electricity charges is liability of the tenant and is deemed as rent within the purview of section 2(i) of 'Rent Ordinance' and its failure to deposit in the prescribed manner can entail consequences for seeking ejectment. However, in the instant case at the very outset while filing written statements appellants had furnished plausible explanation, which certainly required scrutiny. Surprisingly, learned lent Controller while making tentative direction for depositing electricity charges had ignored this important aspect. Same error appears to have been repeated by the trial Court while passing order regarding striking off defence under section 16(2) 'Rent Ordinance'. This Court in case 1991 SCMR 986 (Messrs Asad Brothers v. lbadat Yar Khan) while examining legality of tentative order and subsequent action for striking off defence had disapproved consequential action taken on the basis of initial defective order of the Rent Controller, by making following observations:-- "Therefore, the learned Judge in the High Court did not proceed legally in not examining the contention that the order of the Rent Controller under section 16(1) was defective. However, we do not find any force in the contention that merely because the landlord did not expressly pray for a direction to the tenants to deposit future dues of rent, the Rent Controller was not competent to give such direction. It appears to us that once the provisions of subsection (1) of section 16 of the Ordinance are invoked on an application by the landlord, it becomes the duty of the Controller, to determine the arrears of rent due and also pass further orders directing the tenants. to deposit monthly rent in accordance with the prescribed time until the final disposal of the case. Non-inclusion of a prayer for deposit of future rent would, therefore, not be material in considering the validity of such an order. Learned counsel wanted to address arguments on the question whether water and conservancy charges and Betterment Tax constitute rent within the meaning of the Act. However, since the High Court has declined to go into this: question, we think that the said question to the first instance be decided by the High Court. In the result we accept this appeal, set aside the order of High Court and remand the case to the High Court for a fresh decision in the light of this judgment after hearing the parties who will be at liberty to raise arty pleas that are available to them. In the circumstances of the case there shall be no order as to costs. "

9. Now adverting to facts of present case it is quite apparent that electric 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 appellants is neither lawful nor deliberate. The events clearly reveal 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 aspects. Besides, while making tentative direction for depositing arrears of Electricity charges, learned Rent Controller had. bluntly disregarded 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.

10. Additionally, respondent has not placed on record any terms of tenancy' which may require payment of monthly electricity charges to the landlord instead of depositing the same with KESC. Therefore, in the absence of any material proving obligation of tenant's payment of taxes or electricity charges to the landlord question regarding maintainability of eviction proceedings becomes doubtful. In this behalf it would be profitable to reproduce below observations of a case reported as Badruddin v. Muhammad Yousaf (1994 SCMR 1900):-- "We may observe that a distinction is to be drawn between a case in which liability of a tenant to pay electricity and/or gas charges depends on the actual bills and the liability of a tenant founded on reading of sub-meter. In the former case, a tenant will be justified in asking the landlord to show the actual bills but in the latter case, he cannot justify default on the basis of non-showing of the bill by the landlord as his liability is to be ascertained on the basis of reading of the sub-meter.. To illustrate the above point, we may give an example. Suppose there are five shops having coon electricity meter and having five different tenants-it is reed between the tenants and the landlord that each of the tenant will pay 1 /5th of the electricity bill which may be received from K.E.S.C or WAPDA. In such case if the landlord has not intimated the actual amount of the bill td the tenants, it will be improper to hold that tenants have committed default by not tendering electricity charges. Take the other example, where in the above five shops there are sub-matters. In this case, the liability agreed to between the tenants and the landlord is on the basis of actual reading of sub- meter. In this case the tenant commit default on the plea that they were not intimated the actual amount of the bill though they may claim adjustment if the Victual bill is for lesser amount. 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 t 11e 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 tenant, 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. "

11. Thus following dictum laid in afore-quoted reports, and above discussion impugned judgment alongwith orders of trial Court deserve to be set aside. Consequently appeal is accepted and on setting aside judgment/order of both the Courts below the eviction applications filed by respondent are dismissed. Parties are, however, left to bear their own costs. M.B.A./M-355/S Appeal accepted