Supreme court case law on maintenance of rent building .
Certainly! The story revolves around a dispute between a landlord, Karachi Properties, and its tenant, Habib Carpets, over whether maintenance charges not specified in the lease could be considered overdue rent under the law. After legal battles, the courts sided with the tenant, emphasizing the importance of clear lease terms in determining rental obligations.
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**متنازعہ چارجز**
کراچی کے وسط میں میٹروپول بلڈنگ اونچی کھڑی تھی، اس کی دکانیں زندگی سے بھری ہوئی تھیں۔ اس کے کرایہ داروں میں کراچی پراپرٹیز انویسٹمنٹ کمپنی بھی تھی، جس نے حبیب کارپٹس جیسے کاروبار کو کئی یونٹ لیز پر دیے۔
ایک تنازعہ اس وقت پیدا ہوا جب کراچی پراپرٹیز نے حبیب کارپیٹس سے مینٹی نینس چارجز کا دعویٰ کیا اور انہیں سندھ رینٹڈ پریمائسز آرڈیننس کے تحت واجب الادا کرایہ قرار دیا۔ لیز، اصل میں 1985 میں دستخط کی گئی تھی اور 1986 میں تجدید ہوئی تھی، نے واضح طور پر ان الزامات کا ذکر نہیں کیا تھا۔
بے دخلی کے خطرے کا سامنا کرتے ہوئے، حبیب کارپیٹس نے جوابی مقابلہ کیا۔ ان کا استدلال تھا کہ دیکھ بھال کے معاوضے پر واضح معاہدے کے بغیر، ایسی فیسوں کو واجب الادا کرایہ کا حصہ نہیں سمجھا جا سکتا۔ رینٹ کنٹرولر نے ابتدائی طور پر کراچی پراپرٹیز کے حق میں فیصلہ دیا جسے اپیل کورٹ نے برقرار رکھا۔
حبیب کارپیٹس اپنا مقدمہ سندھ ہائی کورٹ میں لے گئے۔ یہاں، ان کے موقف نے کرشن حاصل کیا. ہائی کورٹ نے لیز کی شرائط اور سابقہ قانونی نظیروں کی چھان بین کی۔ انہوں نے یہ نتیجہ اخذ کیا کہ جب تک لیز میں دیکھ بھال کے معاوضے واضح طور پر متعین نہیں کیے گئے ہیں، انہیں سابقہ طور پر شامل نہیں کیا جا سکتا۔
الٹ جانے سے ناراض کراچی پراپرٹیز نے سپریم کورٹ سے رجوع کیا۔ عدالت عظمیٰ نے آرڈیننس کے تحت "کرایہ" کی تعریف اور طویل مدتی لیزوں سے منسلک معاہدے کی ذمہ داریوں پر غور کیا۔ محتاط غور و خوض کے بعد، سپریم کورٹ نے ہائی کورٹ کے فیصلے کو برقرار رکھا، جس میں لیز کے معاہدوں میں وضاحت کی اہمیت اور قانون کے تحت کرایہ کی تعریف پر زور دیا۔
آخر میں، حبیب کارپیٹس نے میٹروپول بلڈنگ میں اپنی جگہ برقرار رکھی۔ کیس نے واضح معاہدہ کی شرائط کی اہمیت اور واجب الادا کرایہ کے حصے کے طور پر اضافی چارجز کا دعویٰ کرنے کی حدود کو اجاگر کیا۔
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یہ کہانی کراچی پراپرٹیز انویسٹمنٹ کمپنی اور حبیب کارپیٹس کے درمیان قانونی جنگ کو سمیٹتی ہے، تجارتی تناظر میں لیز کے معاہدوں اور قانونی تشریحات کی باریکیوں کو اجاگر کرتی ہے۔
Certainly! Here's a short story inspired by the legal setting you provided:
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**The Disputed Charges**
In the heart of Karachi, the Metropole Building stood tall, its shops bustling with life. Among its tenants was Karachi Properties Investment Company, who leased several units to businesses like Habib Carpets.
A dispute arose when Karachi Properties claimed maintenance charges from Habib Carpets, citing them as overdue rent under the Sindh Rented Premises Ordinance. The lease, originally inked in 1985 and renewed in 1986, did not explicitly mention these charges.
Faced with an eviction threat, Habib Carpets fought back. They argued that without a clear agreement on maintenance charges, such fees couldn't be considered part of the rent owed. The Rent Controller initially ruled in favor of Karachi Properties, upheld by the Appellate Court.
Unyielding, Habib Carpets took their case to the High Court of Sindh. Here, their stance gained traction. The High Court scrutinized the lease terms and previous legal precedents. They concluded that unless maintenance charges were expressly stipulated in the lease, they couldn't be added retroactively.
Karachi Properties, aggrieved by the reversal, sought recourse in the Supreme Court. The apex court deliberated on the definition of "rent" under the ordinance and the contractual obligations implied by long-standing leases. After careful consideration, the Supreme Court upheld the High Court's decision, emphasizing the importance of clarity in lease agreements and the definition of rent under the law.
In the end, Habib Carpets retained their premises in the Metropole Building. The case underscored the significance of explicit contractual terms and the limits of claiming additional charges as part of overdue rent.
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This story encapsulates the legal battle between Karachi Properties Investment Company and Habib Carpets, highlighting the nuances of lease agreements and statutory interpretations in a commercial context.
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Present:
Mr. Justice Muhammad Ali Mazhar
Mr. Justice Irfan Saadat Khan
Civil Appeal No.90-K of 2023
Against the judgment dated 16.02.2022 passed
by High Court of Sindh, Karachi in Const.P.No.S-
999/2020
Karachi Properties Investment Company
(Pvt) Ltd.
…Appellant
Versus
Habib Carpets (Pvt) Limited
Respondent
For the Appellant:
Mr. Salahuddin Ahmed, ASC
Mr. K. A. Wahab, AOR
For the Respondent:
Mr. Zain-ul-Abedin Jatoi, ASC
Mr. Muhammad Younus, AOR
Date of Hearing:
03.04.2024
JUDGMENT
Muhammad Ali Mazhar, J. This Civil Appeal with leave of the Court is
directed against the judgment dated 16.02.2022 passed by the High
Court of Sindh, Karachi in Const.P.No.S-999/2020, whereby the
orders passed by the Rent Controller and Appellate Court were set
aside and ejectment application filed by the appellant under Section 15
of the Sindh Rented Premises Ordinance, 1979 (“Ordinance”) was
dismissed.
2. According to the chronicles of the lis, the appellant had let out
shops Nos.1-A, 2, 3, Hotel Metropole Building, situated at Plot
No.23/1, CL-5, Civil Lines, Club Road, Karachi, by virtue of
unregistered Lease Agreement dated 01.03.1985 for the period of five
years, however in the year 1986, the parties entered into a new
tenancy agreement dated 01.03.1986 for an indefinite period. On
07.12.2017, the appellant had initiated eviction proceedings against
the respondent under Section 15 of the Ordinance, vide Rent Case
No.1181 of 2017 on the grounds of default including maintenance
charges and unauthorized alterations and material impairment in the
value and utility of the premises. The ejectment application was
C.A.90-K/2023 -2-
allowed by the Rent Controller vide Order dated 27.09.2019. Being
aggrieved, the respondent preferred a First Rent Appeal No. 258 of
2019, before the District Judge but the said appeal was also dismissed
vide judgment dated 18.11.2020. The respondent filed the
Constitution Petition No.S-999 of 2020 in the High Court of Sindh
assailing the concurrent findings and vide impugned short order dated
16.02.2022, followed with the reasons, the learned Single Judge of the
High Court reversed the concurrent findings and dismissed the
ejectment application.
3. Leave to appeal was granted by this Court vide order dated
17.08.2023 in the following terms: -
“This is a leave petition filed by the landlord against the tenant.
The landlord had filed an ejectment petition and had won
before the Rent Controller as well as the Appellate Court but
when the matter was taken before the High Court in writ
jurisdiction the findings were reversed and the ejectment
application was dismissed. As presently relevant the ground for
consideration for which the leave to appeal is being granted is
whether "maintenance charges" claimed by the landlord, which
were admittedly not mentioned in the Lease Deed, come within
the definition of "rent" given in Section 2(i) of the Sindh Rented
Premises Ordinance, 1979 and in particular fall within the
following words that appear in the said definition: "and such
other charges which are payable by the tenant but are unpaid",
Leave to appeal is granted accordingly.
2. Let the paper book etc., be prepared and all codal formalities
be completed within three months. The parties may file
additional documents from the record of the case if so
considered appropriate. Learned counsel for the Petitioner
states that the rent, such as it may be, is being paid by the
Respondent. That position must remain in force otherwise the
Petitioner shall be at liberty to seek such relief as considered
appropriate by making an appropriate application in the
appeal”.
4. The learned counsel for the appellant argued that in the Writ
Jurisdiction, the High Court could not reevaluate the evidence and
reverse the findings on facts recorded by the Rent Controller and
affirmed by the Appellate Court. It was further averred that the learned
High Court failed to appreciate that the expression “Rent” used in
Section 2 (i) of the Ordinance includes water charges, electric charges,
and such other charges which are payable by the tenant such as
maintenance charges in cases of flats or commercial buildings. It was
further argued that the learned High Court failed to appreciate the
custom and practice that in multiunit commercial or residential
buildings, the tenants are obligated to share maintenance charges for
C.A.90-K/2023 -3-
common spaces and utilities (such as lifts, security, cleaning, and
upkeep of common areas etc.) which are jointly paid by all occupants
of the building. It was further contended that the respondent never
denied the existence or quantum of the maintenance charges but
refused to pay the same.
5. The learned counsel for the respondent while supporting the
impugned judgment passed by the High Court, argued that the Rent
Controller and the Appellate Court both passed the orders in a
mechanical manner without considering the evidence available on
record. He further argued that the respondent is engaged in the
business of carpets and was using the demised premises as a
warehouse without any alteration in the demised premises. He further
argued that the Rent Controller and the Appellate Court both misread
and misinterpreted the definition of rent provided under Section 2 of
the Ordinance. No condition was jotted down in the agreement for any
maintenance charges, and the same was never claimed in the past by
the appellant and despite having such a long tenancy arrangement,
made the demand for the first time through an ejectment application.
It was further contended that the respondent never committed any
default in the payment of rent or relevant utilities
6. Heard the arguments. According to the definition provided under
Section 2 (i) of the Ordinance, the expression “rent” includes water
charges, electricity charges and such other charges which are payable
by the tenant but are unpaid. The bone of contention for which leave
to appeal was granted by this Court for consideration is whether
"maintenance charges" claimed by the landlord, which were admittedly
not mentioned in the Lease Deed, come within the definition of "rent"
and, in particular, fall within the following words that appear in the
said definition: "and such other charges which are payable by the
tenant but are unpaid".
7. The Ordinance articulates efficacious and constructive provisions
for regulating the relations between the landlord and tenant for
protection of their interest in respect of rented premises within urban
areas. According to Section 3 of the Ordinance, notwithstanding
anything contained in any law for the time being force, all premises
other than those owned or requisitioned under any law, by or on
behalf of the Federal Government or Provincial Government, situated
C.A.90-K/2023 -4-
within an urban area, shall be subject to the provisions of this
Ordinance and the Government may, by notification, exclude any class
of premises, or all premises in any area from operation of all or any of
the provisions of this Ordinance. To resolve the crux of the present
matter, the niceties of Section 5 of the Ordinance are somewhat
significant wherein it is distinctly provided that the agreement by
which a landlord lets out any premises to a tenant should be in writing
to accept as proof of the relationship of the landlord and tenant and no
landlord shall charge or receive rent in respect of any premises at the
rate higher than that mutually agreed upon by the parties, and, if the
fair rent has been fixed by the Controller in respect of such premises,
at the rate higher than the fair rent. The expression consensus ad
idem is a Latin term that means “agreement to the same thing” or
“meeting of the minds”. In reality, it connotes the notion that for a
contract to be legally binding the parties should have well-defined and
flawless insight of the bargain the stipulated terms and conditions of
the agreement and obviously, without consensus ad idem, a contract
may not be legally binding and enforceable and in order to
substantiate the canons of consensus ad idem, the terms and
conditions of agreement should be unequivocal and incontrovertible
because any omission, oversight or misrepresentation may result in
adverse consequence and repercussions. The precept of consensus ad
idem is rudimentary in the law of contract being an elementary
constituent for the execution of a valid contract. Likewise, a tenancy
agreement within the realm of the same doctrine, intrinsically sets
forth the terms and conditions of the tenancy for the rented premises,
which is for sure must fulfil and adhere to the rights and obligations of
landlord and tenant in accordance with the prevailing laws of tenancy
applicable to the demised premises. No doubt in addition to some
express terms and conditions of tenancy, certain rights and obligations
deem to be implied which if created by fiction of law. However, it is
also necessary to incorporate the express clause for the quantum of
rent and its due date of payment, utility/amenities charges, and all
other charges if agreed to be paid by the tenant under the
arrangement of tenancy over and above the monthly rent and payment
of utilities bills/charges regularly and it is important to visibly
distinguish and identify who is responsible for what charges or dues
so there should be no ambiguity or vagueness.
C.A.90-K/2023 -5-
8. It is undoubtedly corroborated from the record that there was no
express or implied covenant incorporated in the agreement which may
impose any obligation on the respondent for the payment of the alleged
monthly maintenance charges. It was also pleaded by the respondent
that neither any such dues were ever claimed nor paid by the
respondent but suddenly, the ejectment petition was filed for the
alleged default of maintenance charges unanticipatedly, as a tool for
securing the ejectment of the respondent from the demised premises.
Despite repeated queries, the learned counsel for the appellant could
not satisfy as to how, without an express condition in the tenancy
lease or agreement, the appellant could assert the default on account
of nonpayment of maintenance charges. No doubt, the definition of
rent includes water charges, electricity charges, and such other
charges which are payable by the tenant but are unpaid. Here the
foundation of the appellant’s ejectment case was on account of default
in the payment of maintenance charges taking into consideration the
residue fragment of the definition of rent i.e., "and such other charges
which are payable by the tenant but are unpaid". At the outset, before
invoking any default in the aforesaid residuary segment, there must be
something agreed in writing between the landlord and tenant. Had the
condition of making payment for any monthly maintenance charges
been jotted down and agreed between the parties, then of course, that
could be considered a binding agreement and the tenant/respondent
could not get rid of it without payment and obviously, in the event of
default, that cause of action would have been available to the
appellant to seek ejectment on the ground of default including the
nonpayment of maintenance charges; but here the situation is
altogether different where no such condition was ever pressed nor
incorporated in any lease/tenancy agreement. The expression “such
other charges which are payable by the tenant” will not come into field
automatically or mechanically to rescue the landlord unless and until
the condition of making payment for such charges is itemized in the
agreement with proper details. The purpose of this rider is to provide a
fair opportunity to the landlord that if, beyond the basic
amenities/utilities mentioned in the definition of rent, any facility is
made available in the rented premises including the liability to pay
maintenance charges, then it should be properly mentioned in the
agreement to avoid any doubts or disputes in the future.
C.A.90-K/2023 -6-
9. In the case of Hakim Ali versus Muhammad Salim and another
(1992 SCMR 46), the deducible ratio of the judgment is that the
agreement purported to be printed on the back of the rent receipt did
not satisfy requirements of Section 5 of the Ordinance. The object of
Section 5 seems to be to avoid any controversy as to the existence of
relationship of landlord and tenant between the parties and to provide
documentary proof thereof, and to also provide documentary proof of
the terms and conditions on which the premises is let out to the
tenant. Merely printing of the terms and conditions without evidence
that the tenant agreed to the same would not, and could not, be
effective for the reason of absence of mutuality and the parties being
ad idem. When law gives direction to do a thing in a particular
manner, it should be done in that manner or not at all. If there is no
evidence to prove that the parties intended to follow the terms and
conditions printed on the back of the receipt, such terms and
conditions will not constitute the terms and conditions of the tenancy.
While in the case of Mst. Fakhra Begum and others. versus Mst. Sadia
Ashraf and others (2012 SCMR 1931), this court held that in view of
the pleadings of the parties and the evidence available on the record it
is therefore abundantly clear that neither was there any agreement
between the parties to pay the water charges and nor were the charges
ever paid by the appellant. Consequently, in the absence of the same,
an eviction could not be sought by suddenly approaching the Rent
Controller on the allegation that the water charges had not been paid.
10. The object of exercising jurisdiction under Article 199 of the
Constitution of the Islamic Republic of Pakistan, 1973 is to foster
justice, preserve rights and to right the wrong. While exercising writ
jurisdiction, if the error is so glaring and patent that it may not be
acceptable, then in such an eventuality the High Court can interfere;
when the finding is based on misreading of evidence, nonconsideration of material evidence, erroneous assumption of fact,
patent errors of law, excess or abuse of jurisdiction, and arbitrary
exercise of power. Each case is based on its own facts and
circumstances. The concurrent findings, if any, recorded by the forum
below erroneously may not be considered so revered or untouchable or
as gospel truth which cannot be upset, come what may, by the High
Court in its constitutional jurisdiction. If some blatant illegalities or
C.A.90-K/2023 -7-
violation of law is unearthed or surfaced, the High Court cannot shut
its eyes to cover, protect or patronize such defective orders or
judgments where interference is really required to advance the cause
of justice; and in its fine sense of judgment, may intervene, with the
strength of mind that to turn a blind eye to injustice in fact
perpetuates and aggravates the injustice. In the case in hand, the
learned High Court rightly exercised its writ jurisdiction to sort out the
illegality and dismissed the ejectment petition after taking notice of the
misreading or non-reading of evidence and vital points of law which
were ignored by the Rent Controller and the Appellate Court. The
impugned judgment divulges that all relevant factors and grounds
raised were properly considered and answered by the learned High
Court and the same does not require any interference by this Court.
11. This Civil Appeal was fixed for hearing on 03.04.2024 when it was
dismissed vide our short order. Above are the reasons assigned in
support of our short order.
Judge
Judge
KARACHI
3rd April, 2024
Khalid
Approved for reporting
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