NOOR-UR-REHMAN Versus FAISAL KAMAL
SYED MUHAMMAD ATTIQUE SHAH, J. ---Petitioner through instant writ petition has approached this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with the following prayer:-
"On acceptance of the instant appeal impugned judgment, order and decree passed by both the Courts below may please be declared as wrong, illegal, against the law and facts, arbitrary, fanciful, perverse, without lawful authority, hence be struck down and rent application No.3/RC be reversed and respondent No.2 for disposal or any other order or relief which this Honourable Court deem fit and appropriate in the circumstances, may also be passed."
2. Brief facts leading to filing of instant writ petition are that respondent No.1 (Respondent) filed an ejectment petition No.3/RC against the petitioner in the Court of learned Rent Controller, Mansehra. The petitioner was summoned who appeared and contested the said ejectment petition by filing his reply. Subsequently, vide order dated 12.11.2016, the learned trial Court directed the petitioner to deposit the tentative monthly rent of Rs. 1900/- before 15th day of every month. However, the petitioner failed to deposit the said rent for the month of January, 2017 and thereafter he submitted an application to the learned Rent Controller for deposit of the said rent on 18.01.2017. On the other hand, the respondent submitted application for striking off defence of the petitioner under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959. After hearing arguments of the parties, the learned trial Court vide order dated 13.02.2017 allowed the said application and defence of the petitioner was struck off under section 13 (6) of the Urban Rent Restriction Ordinance, 1959 and directed the petitioner to vacate the shop and deliver its possession to the respondent. The petitioner being aggrieved of the said order of learned Rent Controller impugned the same before the learned Appeal Court. The learned Appeal Court, after hearing both the parties, vide its judgment dated 04.07.2017 dismissed the said appeal. Hence, the present writ petition.
3. Learned counsel for the petitioner argued that default in the payment of rent was not willful as the petitioner remained ill, therefore, there was no fault on his part in depositing the said rent and referred to medical certificate attached with the present writ petition. However, on the other hand, learned counsel for the respondent vehemently urged that the medical certificates has never been produced by the petitioner before the Rent Controller nor the same was submitted by him with his appeal rather the same are afterthought.
4. Arguments of the learned counsel for the parties heard and record of the case perused with their able assistance.
5. It is worth to mention that provisions of section 13(6) of the Ordinance ibid are mandatory. Once the learned Rent Controller directed the petitioner for deposit of tentative rent before 15th of every month, then it was mandatory upon the petitioner to deposit the said rent as per direction of the learned Rent Controller, however, he defaulted in depositing the said rent. The plea of the petitioner that the circumstances were beyond his control due to his ailment seems to be an afterthought plea, as he has not taken any such plea in his application before the learned Rent Controller, nor the same were produced before the Court of learned Additional District Judge-IV, Mansehra. In this view of the matter, the said medical prescriptions cannot be taken into consideration by this Court. The question of willful default under section 13(6) of the Ordinance ibid came up under consideration before the superior courts and even delay of one day was not condoned. Reliance is placed on 1990 SCMR 557 and 2001 SCMR 2020. Moreover, this Court cannot take an independent view in its jurisdiction under Article 199 arrived at by the two Courts below on the question of willful default.
5(sic). Apart from above, learned counsel for the petitioner could not point out any illegality or irregularity committed by the learned Lower Courts while rendering their findings at the time of deciding the case of the petitioner.
6. Thus, keeping in view, the above stated facts, circumstances and discussions made thereupon, this Court reached to the conclusion, that the findings rendered by both the Courts below are based on proper appreciation of the evidence and material available on record of the case and the law applicable thereto, which needs no interference by this Court in its constitutional jurisdiction. Therefore, the present writ petition being bereft of merits is dismissed.
MQ/227-P Petition dismissed.