1989 PLP 1652 (MLD)

(2) What should the order be? The learned Rent Controller after taking into consideration the evidence produced by the parties decided issue No.l in negative and consequently the application filed by the appellant was dismissed. The present appeal is directed against the said order by which the application filed by the appellant was dismissed. I have heard Mr. Khurshid Anwar Shaikh learned counsel appearing for the appellant, Mr. Zahid Marghoob learned counsel appearing for the respondent and have gone through the R & P of the case. It has been contended by Mr. Khurshid Anwar Shaikh learned counsel appearing fro the appellant that it was because of the construction of underground water tank and putting water pump for supplying water to the overhead tank that its water supply has been affected and therefore he was entitled to get water in accordance with her need. Mr. Zahid Marghoob learned counsel appearing for the respondent has contended that by virtue of clause 10 of the tenancy agreement it was not liable of the landlady to supply water to the appellant. That existing arrangement as was being enjoyed by the tenant has not been disturbed and non‑supply was due to scarcity to supply of water by K.DA. in the main pipeline, that if any order is passed by this Court it will create new state of affairs. I have considered the contentions of the learned counsel. In order to appreciate respective contentions of the learned counsel, it will be necessary to consider the effect of clause 10 of the tenancy agreement which reads as under:‑‑ That the electric charges shall be paid by the tenant himself to the authorities concerned and no damage neither to the Electric Meter and fittings/connections should be done nor to the wash basin and almirah fixed therein. In case of non‑supply of water from K.D.A. the tenant will himself arrange for his consumption." It was the case of the appellant in his application that at the time of executing the rent deed it was settled that the water supply would be sole responsibility of the Opponent as the applicant being a Dental Surgeon the water supply is essential requirement to run the Clinic. It was further stated that unfortunately the water supply to the Clinic has been deliberately stopped on 15th July, 1975, after the construction of under‑ground tank and, fixation of Electric water pump in the building wherein the shops in dispute exist. That due to the above act of the Opponent the applicant has been completely deprived of the right of obtaining water causing inconvenience to the patients coming to the Cynic. That the applicant in view of the above inconvenience invited the attention of the Opponent to provide water supply at the Clinic by laying a direct connection from the overhead water storage through his notice dated 10‑1‑1976. But no avail. On the contrary the applicant was harassed by the sons of the respondent landlady and there were proceedings under section 107/117 Cr.P.C. The case of the respondent in written statement was that the question of water had to be regulated by clause 10 of the tenancy agreement. It was further stated that the applicant was using the water of way of direct connection from K.DA. line and any scarcity of water in Karachi might have affected the water supply of the applicant. The water tank and electric pump have been in existence since last many years to which the applicant 'never objected' and was quite satisfied with the arrangement. . The applicant/appellant has repeated his allegations in his affidavit‑in- evidence. In cross‑examination he has deposed that agreement ExA/9 is the same and he had signed it after understanding contents thereof. He has admitted a suggestion that under the agreement it yeas agreed that in case of non‑supply of water from K.DA. he shall himself arrange for water connection. He has further stated that previously there was direct water connection from K.DA. for his shops. He opens his Clinic from 9.00 a.m. to 1.00 p.m. and from 5.30 p.m. to 9 p.m. Nowadays there is shortage of water in Nazimabad and there is no result timings for that. He has denied a suggestion that water comes only after 9.00 p.m. He has kept a water drum for storing water. After 1975 no water comes. The Opponent did not supply him water from overhead tank. Previously he had filed a case for the restoration of water but the same was dismissed in default. He did not apply for the restoration of the case and filed this case. He has denied a suggestion that because his connection is at higher level, therefore the water was not coming. He did not know if the Opponent herself purchase water in tankers and carts. He did not know if K.M.C. staff had come to inspect the site on the application of the landlady: There were cases between him and the Opponent under Section 107/117 Cr.P.C. He has denied a suggestion that the Opponent has not stopped his water supply. On the other hand the respondent Ashraf Aliya has filed her own affidavit‑in‑evidence in which she has stated that according to the terms and conditions of agreement of tenancy it was the sole responsibility of the applicant to arrange for water supply at his own cost with his own efforts. That she never supplied water to the applicant since the inception of tenancy as the applicant has a water connection direct from main K.DA. Pipe line. That from last few years or so, most of the areas of Karachi are riot getting proper water supply from K.DA Pipe line and one of these badly affected areas is of Nazimabad Karachi. She has also been suffering on account of scarcity of water and as such she had to buy water for daily requirement by way of Tankers, push‑carts and drums, she has produced two photographs as Ex. 0‑1 and 0‑2, showing that water was being taken through tankers and push‑carts. That on account of acute shortage of water which was mainly due to low pressure in the pipe of the K.DA. she approached K.M.C. Karachi to. get her water connection lowered so that she may get at least more water for her daily consumption, for which she had to make payment to K.M.C, The copy of challan is produced as Ex. O/3. She has not stopped water supply of the applicant from 15th July, 1975 or from any date thereafter till today as the applicant was not getting water supply through her. However, she did not appeal in Court for cross‑examination and therefore she could not be cross‑examined by the respondent. I have considered the contentions of the learned counsel. In the present case it has been admitted by the learned counsel appearing for the respondent that there was only one water connection through which the water was being supplied to the shops as well as to residential premises. It has also been admitted that the under‑ground water tank was constructed by the respondent later and she got the direct connection through which the appellant used to get water of his clinic lowered. It is also an admitted position that there is an overhead tank constructed by the respondent on the roof of her house and she was taking water to the over‑head tank through the electric water pump fixed in the building where the shops are situated. In view of the above development made by the respondent the applicant could not get water for use of his clinic. Had the respondent obtained separate water connection for her residential purposes and school in that case, if there would have been any shortage of water supply to the clinic of the appellant, the respondent could not have been made responsible but in view of the facts mentioned (supra) the water supply of the appellant was bound to be affected and it could not be said that the water supply of the appellant was affected due to any act or omission of the K.DA. In fact the shortage in water supply to the Clinic of the appellant was the result of the acts of the respondent and therefore she was bound to supply water to the appellant through overhead water tank. The respondent cannot be allowed to take benefit of her own wrong. As far as clause 10 of the tenancy agreement was concerned, it shows that in case of non‑supply of water from K.DA. the tenant will himself arrange for his consumption. The facts and circumstances of the present case clearly show that the shortage "for water supply was not due to any act or omission of the K.D.A. but the shortage was due to the acts of the respondent. On this point the evidence of the appellant has not been rebutted as affidavit filed by the respondent in evidence cannot be taken into consideration as she has failed to appear in Court for cross‑examination. In view of the above discussion, I allow this appeal, set aside the order of, the learned Rent Controller and direct the respondent to allow water supply to the clinic of the appellant from the overhead tank through Pipe-line which will be fixed at the cost of the appellant. The appellant will also be liable to pay half of the conservancy charges to the respondent within 15 days of the receipt of the bill from the K.D.A. M.Y.H./M‑750/K Appeal allowed.