IN THE HIGH COURT OF SINDH AT KARACHI
BEFORE:
Mr. Justice Muhammad Shafi Siddiqui
C.P. No. S-2174 of 2016
Shamsheer Security Guards (Pvt.) Ltd.
Versus
Muhammad Manik Chowdhary & others
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Date of Hearing: |
22.05.2018 and 01.06.2018 |
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Petitioner: |
Through Mr. Tasawur Ali Hashmi Advocate |
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Respondents No.1 to 3: |
Through Mr. Zia-ul-Haq Makhdoom along with M/s Faisal Aziz and Muhammad Azhar Mahmood Advocates. |
Muhammad Shafi Siddiqui, J.- This petition is arising out of conflicting judgments of II-Senior Civil Judge & Rent Controller Karachi East and VII-Additional District Judge Karachi East. The Respondents No.1 to 3 have filed eviction application bearing Rent Case No.354 of 2008 against the petitioner on the ground of default and illegal and unauthorized construction, which was dismissed however the same was allowed vide impugned judgment.
The petitioner and respondents No.1 to 3 filed affidavit-in-evidence of their respective witnesses who were subjected to cross-examination. On behalf of the Respondents No.1 to3/applicants Muhammad Amir Chaudhry filed his affidavit-in-evidence and was subject to cross-examination whereas on behalf of petitioners one Tariq Ali Hashmi filed affidavit-in-evidence and he was also subjected to cross-examination.
Respondents No.1 to 3/landlords claimed default in payment of rent w.e.f. November 2007 till September 2008 i.e. until filing of the eviction application. The other default that is being claimed is in the shape of irregular payment of rent for about 82 months and the third category of default is of bounced/dishonored cheques of certain period. The other ground for the default is in respect of utility i.e. water and conservancy charges which was agreed to be paid in terms of the rent agreement and remained unpaid. The last ground of eviction application is impairing material value and utility of the demised premises.
The Rent Controller dismissed the eviction application but the appellate Court set aside the order of the Rent Controller and allowed the eviction application.
In paragraph 4 of the affidavit-in-evidence the default w.e.f November 2007 onwards was pleaded whereas in paragraph 6 periodic default and/or irregular and inconsistent payment of rent was pleaded whereas third category of default in pursuance of the bounced/ dishonored cheques was pleaded in paragraph 7. Water & conservancy charges is claimed as a fourth category of default and finally in the affidavit-in-evidence the ground of impairing the value and utility was taken.
Very short cross examination was conducted by the counsel for petitioner however more or less all the contents of the affidavit-in-evidence of the respondents’ witness gone un-rebutted. Apart from the fact that rent up to October 2007 was admitted to have been paid regularly, the rent was then deposited in the Court by the petitioner in MRC No.250 of 2008. To a suggestion of the respondent’s/landlord’s counsel, it was stated by the petitioner’s witness that it is correct that after October 2007 when the applicants refused to receive the rent, the opponent started depositing the same in MRC in Court. If this was the answer of tenant that after October 2007, the petitioner refused to receive the rent, why then the rent was not deposited in MRC w.e.f. November 2007 as the MRC was filed on 08.11.2008 and it was nowhere stated that they intend to deposit the rent w.e.f. November 2007.
In the affidavit-in-evidence of the respondent’s witness it is pleaded that from November, 2007 to September 2008 the payment was not made. These two statements i.e. one answered in the cross-examination of the petitioner and the other stated in paragraph 8 of the affidavit-in-evidence of Tariq Ali Hashmi are totally contradictory to each other. If it was suggested in the cross-examination that after October 2007, the landlords refused to receive the rent, why then in paragraph 8 of the affidavit-in-evidence it is stated that rent w.e.f. November 2007 to September 2008 was paid. It was a burden upon the petitioner/tenant to establish that rent for the month of November 2007 onwards was paid in any form which burden was not discharged. In fact the suggestion that respondents refused to receive the rent w.e.f. November 2007, as borne out from the cross-examination of the petitioner, it becomes toothless defence that rent of the subject period was paid. Though this evidence was not discussed by the appellate Court yet in the ultimate paragraph it was observed that the evidence was not perused by the Rent Controller and rightly so.
Insofar as default of the prior months i.e. prior to October 2007 is concerned, in the cross-examination of the respondents’ witness, it is admitted that the rent up to October 2007 was paid regularly.
Insofar as the next default in respect of Karachi Water & Sewerage Board charges are concerned, the rent agreement provides that the tenant/petitioner was under the obligation to pay such charges regularly and promptly and the charges of KW&SB to the extent of Rs.1,50,000/- accumulated until March 2011. In terms of the rent agreement this was the obligation of petitioner to have paid and cleared all such dues. These dues not only pertain to water charges but also sewerage charges as well payable by the tenant but remained unpaid until filing of eviction application and onwards. Thus, insofar as these two categories of defaults are concerned i.e. w.e.f. November 2007 to September 2008 and KW&SB charges, I am of the view that the respondents No.1 to 3 liable to be evicted on these grounds.
Insofar as alleged illegal and unauthorized construction is concerned, the respondents were required to establish not only that the alleged construction was raised but also that it has impaired material value and utility of the demised premises. They may have proved that there were some additions and alterations in the demised premises but whether it has impaired the value and utility of the demised premises, the burden has not been discharged by the respondents hence I would score of this ground from the consideration insofar as eviction of the petitioner is concerned.
Consequently, in view of the above facts and circumstances the subject default, as referred above, is made out and the eviction application of the petitioner was rightly allowed by the appellate Court and I maintained such order in view of the above reasonings and findings. The petition as such is accordingly dismissed along with listed application.
Dated: 20.08.2018 Judge