IN THE HIGH COURT OF SINDH, KARACHI

Const. Petition No. S - 540 of 2012

Mst.Rasheeda Begum……..……………………..……………….….Petitioner

Versus

Muhammad Yousuf and another……………………………......Respondents

Date of Hearing:- 25.02.2017

Mr. Muhammad Arif Khan, advocate for the petitioner

Mr. Muhammad Sadiq Hidayatullah, advocate for the respondent

J U D G M E N T

FAHIM AHMED SIDDIQUI, J: Through the instant petition, the petitioner assailed the impugned judgment dated 23-01-2012 passed by learned Additional District Judge-IV, Karachi West as well as the order dated 30-09-2011 passed by learned Rent Controller-II, Karachi West.

2. The facts of the case, in a nutshell, are that the petitioner is the owner of a building known as Nazir Shopping Centre, Sector 5-G, Chandni Chowk, Saeedabad, Baldia Town, Karachi. The respondent is her tenant in respect of Shop No. 9 situated in the same building on the monthly rent of Rs.350/-. As per pleadings, the respondent has been utilising electricity of three shops through Meter No. 959359, Account No. 0205808190010 and Consumer No. AL-819270 but he had not paid electricity charges since November 2006. As such, a substantial amount of areas of electricity charges piled up reaching to the tune of Rs. 6900/-. Thus, the respondent had committed a wilful default in the payment of electricity charges. In these circumstances, the petitioner served a legal notice dated 29-10-2007 upon the respondent intimating him about the same. In his response to the said legal notice, the respondent denied inter alia such allegations. The petitioner filed a rent application asked for vacant and peaceful possession of the shop in question on the ground of default in the payment of rent and electricity charges etc.

3. The respondent filed his written statement in which he denied all the allegations levelled against him. In his written statement, he also questioned the status of the petitioner as the owner of demise premises as she failed to file the proof of ownership after the death of her husband. He also pleaded in written statement that the deceased husband of petitioner rented out the shop in question to him on the goodwill basis for a fixed rent of Rs. 250/- per month which he had been paying to him in his lifetime. After his death, he is paying rent regularly to the petitioner. He also disputed the enhancement of rent in his written statement and claimed that he had paid excess rent. He denied the default of rent and took a plea that during the alleged default period rent was being adjusted. Regarding, electricity charges, his claim was that it is not the business of petitioner to raise such objection as the electricity meter is installed in the shop and he had to pay bills directly. He contended that there was no default as he had been paying electricity charges directly to KESC.

4. After filing written statement, the parties filed their respective affidavits in evidence mainly based upon their pleadings. They have gone through the test of cross-examination. After the recording of the evidence, the learned Rent Controller settled the issues for adjudication of the dispute between the parties and allowed the ejectment application. The respondent challenged the verdict in FRA. The Appellate Court maintained the findings of learned Rent Controller regarding Point No. 1 (relationship of landlord & tenant) and Point No. 2 (default in the payment of rent) but did not concur with the findings on Point No. 3 (default in electricity charges). According to the learned Appellate Court, there was no default in payment of electricity charges. The petitioner has impugned this portion of findings of the learned Appellate Court in the instant petition.

5. The learned counsel for the petitioner preferred his submission at length. According to him, the learned Rent Controller as well as learned Appellate Court erred in holding that there is no default in electricity charges. According to him, the respondent has not only committed default in the payment of rent but also in the bills of electricity, which he has not paid regularly. The learned counsel for the petitioner contended that delayed payment of electricity bill also amounts to default. According to him, default in the payment of amenities charges is also a default justifying the ejectment of the respondent.

6. Contrariwise, the learned counsel for the respondent submitted that there was no default in respect of electricity charges as well as rent. He also pointed out that the learned Rent Controller has recorded the evidence of the parties without oath which is a fatal mistake in this case. His contention is that evidence without oath is no evidence at all. According to him, the petitioner had charged excess rent during the absence the period when he was abroad. According to him, the respondent is regular in payment of electricity bills to KESC, and the petitioner has no concerned in this respect. He submitted that the respondent had produced the last paid copy of the electricity bill before the court, which is sufficient to justify the claim of respondent that there is no default.

7. After hearing the arguments, I have scrutinised the available record in the light of the submissions of the learned members of the Bar. In the instant matter, there are concurrent findings of the two courts below in respect of the default in rent. The learned Rent Controller has allowed the eviction application on the ground of wilful default in the payment of rent. The learned Tribunal also reached the conclusion that the appellant has committed default in the payment of electricity charges, but the learned Appellate Court considered that there was no default in electricity charges. As in the instant petition, the petitioner has challenged only this portion of the judgment of appellate forum; therefore, I limit myself to this aspect only while the rest of the issues have already been discussed and decided in the separate petitions filed by the respondent being Const. Petition Nos. 336/2012 to 338/2012. The learned Rent Controller has formulated Point No. 3 in respect of the default in electricity and replied it in affirmative. At the time of discussion, the learned Rent Controller discussed Point No. 2 (default in rent) and Point No. 3 (default in electricity charges) together. The learned Appellate Court rightly objected on cumulative discussion of two points, as it is not a good practice. However, the learned Additional District Judge came to a conclusion that the learned Tribunal wrongly decided the Point No. 3 (default in electricity charges). In this respect, my observation is that the learned Additional District Judge has rightly given his findings according to the available record. Although it is the contention of the petitioner that the respondent has committed default in the payment of electricity charges from November 2006, which caused accumulation of an amount of Rs. 6900/; but in this respect, no documentary proof could be produced by the petitioner. The attorney of the petitioner in witness box has stated as under: -

"It is correct to suggest that I have not filed any document along with plaint as well as affidavit-in-evidence which can prove that opponent is defaulter of Rs. 6900/- electricity charges."

8. The attorney of petitioner did not produce electricity bill of November 2006 or earlier to establish his case in respect of default. However, he produced an electricity bill of the month of April 2004, which indicates that an excess amount in respect of electricity charges has been paid. The said Bill is also showing a history of the previous 11 months, which also indicates that the consumer was regular in payment. It is also worth noting that it has also not come on the record that any disconnection notice was ever issued by the electricity company for non-payment of electricity charges. It is the reason that the learned Additional District Judge has rightly concluded that the petitioner succeeded in establishing default in the payment of rent and respondent has committed default in the payment of rent, but petitioner could establish default in respect of payment of electricity charges.

9. In these circumstances, I have no hesitation to say that the findings of the learned Additional District Judge in respect of default in arrears of rent as well as electricity charges are correct and do not need any interference in the writ jurisdiction of this court. The instant petition is dismissed with no order is to cost.

J U D G E