2009 MLD 1033 KARACHI-HIGH-COURT-SINDH

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Mrs. FATIMA VS ORIENT TRAVELS (PVT.) LTD. Through Chief Executive Tenant 1992 SCMR 2400, 1994 SCMR 1900, 1999 SCMR 28, PLD 1999 Kar. 54, Constitution of Pakistan 1973--199 , Constitutional petition--TERM , Ejectment of Tenant--TERM , Proof--TERM , Sindh Rented Premises Ordinance 1979--15 , Sindh Rented Premises Ordinance 1979--2 , Ss. 2(1) & 15---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant---Default in payment of monthly rent---Non-payment of water and conservancy charges---Proof---Ejectment petition filed by landlords was concurrently dismissed by Rent Controller and Lower Appellate Court---Validity---Rent for month of July had become due and payable on 5-7-1998 and could be paid to landlord by 20-7-1998, whereas the same was tendered through money order dated 25-8-1998 after committing default as provided under the statute---Such default was irrespective of dispute with regard to rate of rent thus tenant was bound to pay the rent as agreed under tenancy agreement---No evidence was produced by tenant to show that before tendering rent through money order any efforts had been made by him to tender pay the rent to landlords within time prescribed in agreement as well as in relevant statute---Both the Courts below did not properly consider such aspect of the case and dismissed ejectment application ignoring tenancy agreement available on record---Both the Courts below failed to exercise the jurisdiction vested in them properly and in accordance with law---Written agreement between parties did not show that landlords had taken responsibility to pay water and conservancy charges upon themselves and in absence of any proof to the contrary, it was the duty of tenant to pay such charges---Landlords did not produce any bills of such charges before Rent Controller to show that what. amount tenant was liable to be paid and in absence of such finding recorded by Rent Controller, the same could not be challenged by filing constitutional petition--Photo copies of bills which were produced before Lower Appellate Court were also of no help to landlords as no permission had been sought form Court for producing additional evidence---Tenant was liable to pay charges in terms of definition of `rent' provided in S.2 (i) of Sindh Rented Premises Ordinance, 1979---Tenant was liable to pay charges but default could not be claimed unless landlords had raised demand and provided bills to tenant for his satisfaction---No bills were provided to tenant and no proper demand had been raised, therefore, merely mentioning the dues in counterfoil of rent receipt was not sufficient to show that demand had been raised---Landlords failed to prove by cogent evidence that tenant had committed such acts which amounted to impairing value and utility of premises, mere statement of landlords was not sufficient in such regard---Tenant having not paid rent from July, 1998 onwards, therefore, ejectment application was allowed to that extent and High Court passed eviction order against tenant---Petition was allowed accordingly.