1. ' Messrs Bata Pakistan Limited is tenant of respondents Nos.3 to 15 in respect of a shop bearing No,18, Jahangir Mansion Building, built on Plot No,57, WO.6-Thalai Compound, M.A. Jinnah Road, Karachi, (hereinafter referred to as "the shop" or "the demised premises"), since before partition. In 1992, the owners of the shop (hereinafter referred to. As "the landlords" or "the respondents"), filed Rent Case No,628 of 1992, before the learned Vth Rent Controller South for eviction of Messrs Bata Pakistan Limited (hereinafter referred to as "the tenant" or "the petitioner"), on the grounds of default in payment of rent and personal requirement.
2. ' The tenant resisted the case by filing written statement challenging therein the commission of default and the bona fides behind the ground of personal use.
3. When the parties concluded their evidence and the matter reached at the stage of final arguments, the landlords filed an application under section 16(1) of the Sindh Rented Premises Ordinance, 1979, and the learned Rent Controller passed consent order dated 1918-2000, directing the tenant to deposit in Court the arrears of rent from July, 1989 to September, 1989 and from January, 1990 to October 1999 within 30 days. The tenant deposited the rent on 20th September, 2000, which was two days after the expiry of 30 days period specified in the order under section 16(1). Thereafter the landlords made an application under section 16(2) of the Sindh Rented Premises Ordinance, 1979, for striking of the tenant's defence and directing his eviction. The tenant explained the delay stating that his Advocate and the Advocate of landlords had been negotiating on the question of payment of arrears outside the Court directly to the landlords and they were kept on promises till the expiry of thirty days. He pleaded that the delay in deposit of the rent was neither wilful nor deliberate. Repelling the explanation the learned Rent Controller directed the eviction of the tenant striking of his defence by order dated 16-1-2001. The learned Vth Additional District Judge, Karachi also dismissed the appeal against that order on 29-8-2003. Both of the orders have been assailed through present Constitutional petition.
4. Arguing on behalf of the petitioner/tenant Mr. Shakir Naqshbandi, contended that the petitioner had all along been prepared to deposit the rent as directed by the order under section 16(1) of the Sindh Rented Premises Ordinance, 1979, but could not do so at the instance of his learned Advocate who had entered into exercise of dialogue with respondents/landlords' Advocate on the question of direct payment of arrears to the landlord. According to him the learned Advocate representing the landlords informed him on the last i,e, 30th day that his clients were not prepared to accept the rent outside the Court. According to Mr. Naqshbandi, the lapse due to the fault on the part of the counsel did not warrant extreme penalty of eviction against the tenant. In support of his contention the learned Advocate referred to the decision of the Honourable Supreme Court in the State Life Insurance Corporation Pakistan v. Kotri Textile Mills Limited 2001 SCM R 605.
5. ' Mr. Naqashbandi further contended that the two Courts below passed their orders ignoring the explanation advanced by the tenant as the Rent Controller did not discuss it at all and the learned Appellate Court acted on wrong assumption that no rejoinder had been filed to the claim of landlords' Advocate that he had intimated the petitioner's Advocate about his client's reluctance to accept the rent in person much before the date fixed for deposit of the rent.
6. ' He pointed out the rejoinder filed by the tenants/petitioner's Advocate wherein he had denied the claim of landlord's Advocate that reluctance of the landlords to receive the arrears/rent personally was conveyed to him many days before the expiry of the period fixed by the Court for deposit of the arrears/rent.
7. ' Against the arguments of Mr. Naqshbandi, Mr. Masood Khan Ghory, the learned Advocate for the respondents has contended that the settled- position of law is that the Rent Controller does not have jurisdiction to condone the delay even of single day in compliance with the order under section 16(1) of the Sindh Rented Premises Ordinance, 1979. He referred to the pronouncement of Honourable apex Court in the cases of Muhammad Umar v. Mst. Aiysha Aziz reported in 1981 SCM R 276; M. Nasir v. S. Shaukat Ali 1982 SCM R 985; Malik Aman v. Khawaja Abdul Aziz through his legal heirs 1987 CLC 425.
8. Admittedly the order, dated 19-8-2000, required the petitioner to deposit the rent within thirty days, which they failed to do instead of 18th September, 2000, they deposited the rent on 20th of that month. The explanation advanced for the delay was in fact not considered by the learned Rent Controller under the wrong assumption that he had absolutely no authority to consider the explanation which in fact was not the correct approach. The perfect barrier on his powers is in respect of condonation of default, which does not mean the restriction upon considering the explanation in order to establish that it was due to the reasons beyond the control of the party concerned.
9. ' Although the explanation advanced by the tenant/petitioner for not depositing the rent was not considered by the original Court i,e, Rent Controller but the omission became immaterial after Appellate Court considered the same. It is true that the learned Appellate Court did not notice the rejoinder filed by the tenant's learned Advocate but for that reason the decision cannot be reversed or set aside. In the rejoinder the assertion was made about the date of communication of refusal to receive the rent personally after claim by the landlord's counsel in his counter-affidavit that he had conveyed the reply of his clients to tenant's Advocate many days before the expiry of the period fixed by the Court for deposit of the rent. Even after the filing of rejoinder the position- remains that on one side is the assertion and on the other is the denial on oath, means the word against the word. In such a situation the party required to prove a fact is deemed to have failed in discharging its duty. Thus, it was not proved that till the last day of the period fixed for depositing the rent the tenant was not aware of the fact that the landlords were not prepared to accept the rent outside the Court.
10. Strangely the petitioner/tenant has not come forward to say a word on oath in respect of the non- compliance of the direction issued by the Court.
11. ' Moreover the arrangement for payment of the arrears/rent directly was definitely against the direction issued by the Court through order under section 16(1) of the S.R.P.O. 1979, which required the tenant to deposit the arrears/rent in the Court. No rational or reasonable justification making such arrangement seems to be available. The contention of Mr. Naqshbandi that the tenant's learned counsel wanted to save the parties from the inconvenience of depositing the rent in the Court and withdrawing from there is not convincing one. It is a lame excuse. Thus, the parties'
12. Advocates deliberately and without any compulsion ventured to find out a way for not doing the things as directed by the Court which exercise cannot be recognized as a valid reason for non- compliance with the order of the Court.
13. ' The pronouncement referred to by Mr. Naqshbandi is not helpful to him as the case in hand is distinguishable from the case decided by the pronouncement referred to above. Present is the case where the delay occasioned only because the tenant/petitioner wanted to pay the rent personally instead of depositing it as directed by the Court. Also they have not proved that the refusal by the landlords to receive the rent was conveyed to them on the last day of the period fixed for depositing the rent. Also no explanation whatsoever has been advanced for 19th September, 2000, a day passed in between the expiry of the period and the deposit of arrears/rent.
14. The result is that there is no such evidence to prove that the reason beyond the control of tenant/petitioner prevented him from depositing the rent as directed by the Court. Thus, the conclusions drawn by the learned Appellate Court are correct and do not warrant any interference in exercise of Constitutional jurisdiction. Petition is dismissed in limine.