ROZIE ALMEDIE Versus ASIF ALI

ORDER

1. 1 and 2. Through this Constitutional petition, invoking Constitutional jurisdiction of this Court, the petitioner has challenged the legality and propriety of the orders passed by respondents Nos.2 & 3 dated 29‑4‑2000 and 7‑4‑2003, respectively.

2. The brief facts leading to the present Constitutional petition are that respondent No.1 being landlord, through his Attorney Khosema, filed rent application under section 15(2)(ii) & (vi) of Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) before the learned IInd Senior Civil Judge and Rent Controller, Karachi South seeking directions to the petitioner for vacating the flat premises bearing No.4, situated at Zohra Square, Raja Ghazanfar Ali Khan Road, Saddar, Karachi (hereinafter referred to 'as the said flat') occupied by him as a tenant on the ground that the petitioner, being willful defaulter, had failed to pay the rent with effect from October, 1998 to March, 1999 in spite of repeated requests and demands as well as Legal Notice, received by the petitioner on 3‑3‑1999, hence rendered herself liable for the consequence thereof. Besides, ground of default on the part of the petitioner, respondent also urged his personal bona fide need. The petitioner filed her written statement besides preliminary objections therein that firstly application filed under section 15(2)(ii) & (vi) of Ordinance was not maintainable on the grounds that neither respondent No. 1 sought eviction of the petitioner on the ground of reconstruction of a new building nor the petitioner defaulted in payment of rent which was being deposited in Court in Miscellaneous Rent Case No. 345 of 1999, secondly the power of attorney filed on behalf of respondent No.1 was not proper because it did not bear the signatures of the parties or the names and addresses of the witnesses coupled with the fact that such power of attorney was not notarized/registered or verified/attested, has also denied that she had ever defaulted in payment of rent. She averred that respondent No. 1/landlord used to collect rent and issue rent receipts on or about 10th day of every calendar month. She further averred that since respondent No.1/landlord was living comf6rtably in separate premises and the building in which the said flat is situated was only meant for rental purpose.

3. In view of the above pleadings, learned Rent Controller framed the following issues:

(1) Whether the opponent has committed default in payment of rent as alleged by the applicant?

(2) Whether the demised premises required by the applicant for his personal bona fide use in good faith?

(3) What should the order be?

4. The learned Rent Controller decided Issue No. 1 in favour of respondent No. 1/landlord holding the petitioner/tenant defaulter whereas left Issue No.2 redundant as not pressed and allowed the rent application directing the petitioner to vacate the said flat within 60 days and hand over peaceful physical possession to respondent No. 1/landlord.

5. 'The petitioner filed first rent appeal which was allowed by the learned IInd Additional Session Judge, Karachi South holding that since power of attorney, submitted by respondent No.1/landlord did not contain clause of verification which was mandatory in the light of citation reported in the case of Munir Hussain v. Mst. Mehrun Nisa (PLD 1982 Karachi 71), deposit of rent by the petitioner in miscellaneous rent case was not deliberate or contumacious hence there was no default on her part and default, if any, was purely technical in nature. Challenging legality and propriety of such order respondent No. 1 filed Constitutional petition (bearing No. 648 of 2000) before this Court which was disposed of by consent on 18‑11‑2002. The consent order reads as follows:

6. "By consent it is held that the power of attorney on the basis of which the application under section 15 of the Sindh Rented Premises Ordinance, 1979 was filed shall be treated as valid one and there would be no further controversy about it.

7. Both parties agreed that the impugned order is not speaking as the merits were not touched properly and case‑law i.e. CLC 2085 appears to have been wrongly or perhaps due to over-sight cited by the Appellate Court.

8. As suggested by the learned counsel, the impugned order .is set aside, and the case is remanded back to the Appellate Court for passing fresh judgment in view of the above observations. "

9. In view the above order, the learned IInd Additional District Judge, Karachi South wrote another judgment touching the merits of the case and dismissed the appeal of the petitioner holding that though the respondent No. 1/landlord used to collect the rent in lump sum but the petitioner/tenant was duty bound to pay the rent according to law and Tenancy Agreement within time and since neither both the money orders dated 23‑11‑1998 and 9‑2‑1999, respectively, bearing rent for the months of October to December, 1998, when returned back bore any' endorsement of postman regarding their acceptance or refusal by respondent No. 1/landlord or any address of respondent No.1/landlord nor the Postman was produced by the petitioner/tenant in her support, default as alleged; was proved.

10. The petitioner has now challenged the propriety and legality of the above order of the learned IInd Additional Sessions Judge passed on 7‑4‑2003.

11. I have heard Mr. Fazal Dad Khan, learned counsel appearing on behalf of the petitioner, Mr. Badarudduja Khan, learned counsel appearing on behalf of respondent No.1 and have also gone through the record and case‑law, cited at the bar.

12. It has been contended by the learned counsel for the petitioner that the application, filed under section 15(2)(vi) of the Ordinance seeking eviction of the petitioner, was not maintainable on the ground that respondent No.1 did not seek ejectment for reconstruction of a new building and since the lot of flats were occupied by other tenants of the respondent No. 1 and the building consisting of the said flat was being used for the rental purpose question of personal bona fide need did not arise. It has, further, been contended by the learned counsel for the petitioner that the petitioner has not committed any default in payment of rent and has been depositing rent in Miscellanies Rent Case No.345 of 1999 and he was out of pocket of the amount of rent payable by him which he actually deposited in Court with the intention that landlord may withdraw the amount, if he so desired, and there was no complaint that landlord could not do so, the petitioner could not be condemned as guilty for not depositing rent in Court. In this context it was further argued that the petitioner had actually deposited the rent in Court but had committed mistake of depositing rent in one case and not in another and this amounted to an irregularity rather than penalty. He has relied upon the cases of Muhammad Yousuf v. Maqbool Ahmed (1985 CLC 2862), Major (Retd.) A.S. K. Samad v. Lt. Col. (Retd.) A. Hussain and another (1987 SCMR 1013), Abdullah Ghanghro and another v. Mst. Tahira Begum and another (1988 SCMR 970), Mehmood Jewellers and another v. Nur Ahmad (1989 SCMR 1327), Mst. Rashid Jehan v. Muhammad Ashfaq (1991 MLD 2619) and Noor Muhammad and another v. Mehdi (PLD 1991 SC 711) in support of his contentions.

13. On the other hand, learned counsel for respondent No. 1 has contended that the petitioner was liable to pay rent in advance on 5th of each calendar month vide Tenancy Agreement and the petitioner failed to pay rent with effect from. October, 1998 to March, 1999 which, according to Attorney of the petitioner, was sent through money order on 23‑11‑1998 and upon its returning back he again sent the same on 9‑2‑1999,and after alleged refusal of respondent No.1 accepting the said money order, the same was deposited in Court in Miscellaneous Rent Case No. 345 of 1999. It has further been contended by the learned counsel for respondent No.1 that the petitioner failed to produce money order postal receipt thereby proving that such money orders were sent. Moreover, though the petitioner moved application for summoning the postman to give evidence in respect of delivery of money orders but since the costs for issuance of notices was not paid in spite of providing several opportunities, such application was dismissed by the Court and therefore the Postman was not examined by the petitioner in her support.

14. I have considered the arguments of both the learned counsel appearing on behalf of respective parties, perused the record and have also gone through the case‑laws cited at the bar.

15. The petitioner was, admittedly, liable to pay rent in advance on 5th of each calendar month vide Tenancy Agreement but the record reveals that rent with effect from October, 1998 to March, 1999 was sent through Money Order on 23‑11‑1998 and upon its returning back it was again sent on 9‑2‑1999 and after alleged refusal of respondent No. 1 accepting the said money order the same was deposited in Court in Miscellaneous Rent Case No.345 of 1999. Record further reveals that the petitioner failed to produce money order postal receipt. Moreover, contention of the learned counsel appearing on behalf of respondent No. 1 that though the petitioner moved application for summoning the Postman to give evidence in respect of delivery of money orders but since the costs for issuance of notices were not paid in spite of providing several opportunities, such application was dismissed by the Court and therefore the Postman was not examined by the petitioner in her support, has not been rebutted by the learned counsel for the petitioner in his arguments.

16. In the case of Ghulam Nabi v. T. Ismail (2000 MLD 186) where tenant had contended that he remitted rent by postal money order which was returned as landlord had refused to accept the same. Coupons of money orders produced by tenant in evidence did not show remarks of refusal by landlord nor bore his signature and the coupons were devoid of any sort of endorsement by Postman. No one had been examined on oath by tenant from post office concerned to prove that money ,orders, sent by tenant, were refused to be accepted by landlord. Hon'ble Supreme Court, therefore, held that tenant having failed to prove that he had tendered or remitted rent to landlord was liable to be ejected on the ground of default in payment of rent.

17. In another case of Abdul Qadeer v. Haji Muhammad Ismail (2000 MLD 382) it was held that tender or deposit of rent after its due date, would not save tenant from consequence of default already committed by him.

18. In the case of Abdul Ghafoor v Mst. Amtul Saeeda (1999 SCMR 28) rent of the premises was payable in advance by 7th of each month by mutual agreement of parties and it was, therefore, held that default would occur if rent was not paid by tenant within 15 days of such period, notwithstanding the fact that no written agreement was produced by landlord in proof of his such assertion.

19. In the present case admittedly, the petitioner deposited rent in Court on 6‑3‑1999 after alleged refusal of accepting the money orders for the months of October to December, 1998 on the part of respondent No. 1 first of which, too, according to the assertion of Attorney of the petitioner, was sent on 23‑11‑1998 meaning thereby that after excluding 15 days `grace period, there was 33 days' delay since the rent was payable in advance by 5th of October, 1998. Moreover in absence of any endorsement on the coupon of money orders with regard to refusal of acceptance of money orders and failure to examine Postman to ascertain the factum about posting of those money orders clearly shows that such exercise was not done in good faith.

20. In these circumstances, I am of the considered view that the learned Appellate Court has rightly rejected the appeal of the petitioner filed against the order of the learned IInd Senior Civil Judge and Rent Controller, Karachi South allowing the ejectment application or respondent No. 1 on the ground of default. Accordingly, in my view, the order of the Appellate Court i.e. IInd Additional District Judge, Karachi South does not contain any illegality or material irregularity, which is the basic requirement for deciding this matter by this Court under its Constitutional jurisdiction.

21. In view of what has been discussed above, I am not inclined to admit this Constitutional petition for regular hearing, which is hereby dismissed in limine.

22. Constitutional Petition S‑589 of 2003 stands disposed of alongwith listed‑application.

23. S.A.K./R‑1/K Petition dismissed.