IN THE HIGH COURT OF SINDH, KARACHI

Const. Petition No. S - 1788 of 2015

Mst. Anisa Begum..….……..……………………..……………….….Petitioner

Versus

Mst. Sajida Begum and 02 others…..………………………......Respondents

Date of Hearing:- 27.03.2017

Mr. Arshad Jamal Siddiqui, advocate for the petitioner

None is present for the respondent

J U D G M E N T

FAHIM AHMED SIDDIQUI, J: The petitioner assailed the judgment dated 31-08-2015 passed by Additional District Judge-II, Karachi Central. Through the impugned judgment the learned Appellate Court set aside the order of learned Rent Controller-II, Karachi Central and dismissed the rent case filed by the petitioner against the respondent No. 1 (hereinafter referred as respondent)

2. The petitioner's case is that she's landlady/owner of the premises (Second Floor of House No. 4/794, Liaquatabad, Karachi) rented out to the respondent. The late husband of the petitioner inducted respondent in the tenement about more than 21 years back. The petitioner filed a Rent Case No. 31/2009 against the respondent before the learned Rent Controller-II, Karachi Central on the ground of default in the payment of monthly rent and utility charges. After a full-fledged trial, the learned Rent Controller came to the conclusion that the respondent had committed a default as such ejectment order was passed. The respondent filed an appeal. After hearing the parties, the Appellate Court passed the impugned order in favour of respondent and reversed the finding of the learned Rent Controller.

3. In spite of repeated attempts, bailiff could not serve notices of the instant petition on respondent personally. However, it reveals from bailiff's report that the son of respondent namely Faisal received notice while he also adopted the mode of 'pasting' in the presence of witnesses. After exhausting all other modes of service, a publication was made in the daily Nawa-e-Waqt, and then service on respondent was held good vide order dated 26-08-2016. After service, the matter was adjourned from time to time but nobody appeared on behalf of the respondent.

4. The learned counsel for the petitioner referred his arguments at length. The arguments of learned counsel are mainly focused on the misreading and non-reading of evidence as well as improper appreciation of the law. According to him, the learned Appellate Court has reached a wrong conclusion that there was no default on the part of the respondent. He contended that the learned Appellate Court had not considered the cross-examination conducted upon respondent. Even he could not pay attention towards the money order slip, wherein date and place is not legible. He submitted that the Appellate Court could not appreciate that the rent was properly tendered or not. He pointed out that now the respondent had completely refrained herself from payment of rent. He drew attention towards his statement filed in the instant CP dated 16-5-2016, which indicates that the Respondent has now completely stopped the payment of rent.

5. After hearing the arguments, I have scanned the entire material available on the record. It is the second round of litigation between the parties. The respondent remained unsuccessful in the previous round of litigation, but through an order in CP No. 320/2013, the matter was remanded to Appellate Court, where the impugned judgement was passed. It is the case of the petitioner that the respondent had already committed default in the payment of rent as he had stopped rent in the year 2006. The petitioner also levelled allegations that the respondent is not paying utility charges and property tax.

6. While passing the impugned judgment, learned Appellate Court gave undue weight in respect of payment of rent through money order. The learned Appellate Court did not consider the evidence of petitioner in cross-examination when the witness as clearly stated that the opponent is in areas of the rent of about 14 months with effect from the year 2006 to the year 2007. This important piece of evidence cannot be washed out from a statement of the petitioner's witness that the respondent was paying rent in court since the year 2007.

7. The learned Appellate Court mentioned in impugned judgment that the petitioner refused to receive rent and she returned the money order through which the event was attended to her. He had given considerable weight to the receipt of the money order, but he ignored that the witness of the respondent in cross-examination admitted that the date and the seal of the receipt of money order are not legible. The certified copy of receipt of money order also available in the record from which it is not clear that on which date it was sent and from which post office it was tendered. Even, it has no endorsement that the money order was returned by the payee. In my humble view, when there is doubt then without a certificate from Post Office or examination of the postman, such type of receipt cannot be relied upon. In this respect, I would like to take reliance from a case of this Court reported as Abdul Sattar v. Ali Ahmed (1985 CLC 25) wherein it is held as under:

“According to the learned counsel, it was either manipulated with the connivance of the process-server or through impersonation of someone else representing himself to be the appellant and signing as such. Whether the respondent had the ingenuity or the means to orchestrate the whole thing in a manner it has been done, is doubtful but such a possibility cannot be completely overruled. After all it is a question of fact. Neither the bailiff nor the postman has been called and subjected to cross-examination to conclusively prove the service of the notice and also the identity of the appellant to ensure that the person who had signed the summons or receipt were none else but the appellant.”

Another aspect is considerable. The attorney of the respondent in his cross-examination admitted that the respondent was not paying water charges and conservancy charges. It was his contention in cross-examination that the same was absolved by the late husband of the petitioner, but he could not establish that the late husband has absolved the same. Besides, water charges and conservancy is must be paid by those who are enjoying these services, and no one can absolve the same. A tenant who is not paying water charges and conservancy charges is certainly committing default and should be treated as a defaulter. It is also admitted in cross that other utility charges are being paid by the respondent with the delay. In this respect, I would like to take reliance from the case reported as Badruddin v. Muhammad Yousuf (1994 SCMR 1900) wherein it is held as:

“It may also be pointed out that the definition of 'rent' given in clause (i) of section 2 of the Ordinance includes water charges, electricity charges and such other charges which are payable by the tenant but are unpaid. Since the liability to pay rent under the Ordinance is on a talent, he is reliable to pay rent as defined under above clause".

8. In view of the above discussion, it can be said that the order of Appellate Court is devoid of merit as such the same is set aside and the order of learned Rent Controller is restored. The respondent is directed to hand over the peaceful physical possession of the demised premises to the petitioner within 60 days from the date of this judgment subject to payment of monthly rent as well as amenity bills. The instant petition is allowed in the above terms with no order as to costs.

J U D G E