1. FAISAL ARAB, J.-- The applicant is tenant of respondent No,3 in relation to a portion of City Survey No,714 Ward No,2 Jacobabad. The respondent No,3 filed Rent Application No,70 of 1992 against the petitioner on the ground that the petitioner has failed to pay monthly rents from December, 1988.
2. The respondent No,3 claimed that the rent was payable at the rate of Rs,150 per month.
3. Respondent No,3 further claimed that he served a legal notice upon the petitioner and called upon him to pay the arrears of rent and also to hand over the vacant possession of the premises to him, which was though responded by the petitioner vide his letter, dated 18-1-1992 but neither rent was paid nor he vacated the premises.
4. The petitioner filed his written statement and stated that the rate of monthly rent is Rs,60 and not Rs,150. The petitioner further claimed in his written statement that only a small piece of land measuring 8' x 4' feet, having `Chabutra' built over it was rented out to him and that he himself occupied additional plot belonging to Government around it and constructed house thereon with his own expense. The petitioner in his written statement thus, denied the relationship of landlord and tenant with regard to the house. In the eviction proceedings, the respondent No,3 filed application under section 16(1) of the Sindh Rented Premises Ordinance seeking deposit of arrears as well as future monthly rents. This application was granted by the Rent Controller vide order, dated 27-3-1994, however, the petitioner was directed to deposit tentative rent not at the claimed rate of Rs,150 per month but at Rs,60 per month. Pursuant to this order the petitioner started depositing tentative rent in Court. The petitioner has annexed rent deposit receipts at page 71 of the case file. The first receipt is for Rs,3,600 which covers tentative rent from March, 1989 to February, 1994 and the second receipt is for Rs,60 pertaining to the month of March, 1994.
5. It is an admitted position that the petitioner did not deposit October, 1994 rent within the stipulated period. The respondent No,3, therefore, filed application under section 16(2) and pleaded that the petitioner has committed default in the payment of rent for the month of October, 1994 as the same was required to be deposited latest by 10th November, 1994 but was deposited on 14-11-1994.
6. The petitioner contested this application on the ground that he was suffering from acute Gastroenteritis from 7-11-1994 to 13-11-1994 and therefore, he could not deposit the monthly rent in time. The Rent Controller vide his order, dated 11-10-1995 did not accept the reasons advanced by the petitioner as plausible. He came to the conclusion that the petitioner on his own showing was only an outdoor patient and has been visiting his doctor and therefore, he could have deposited the rent in Court in time. The Rent Controller, therefore, held that petitioner failed to deposit October, 1994 rent in time and ordered his eviction.
7. The petitioner then preferred appeal against his order of eviction. In his memo. of appeal, the petitioner repeated that he was tenant of only a small plot measuring 8' x 4' feet. However, the petitioner in second paragraph of his memo. of appeal stated that he. had also raised a packa construction on the plot in question after obtaining permission from respondent No,2 and invested an amount of Rs,23,000 and this amount was to be adjusted against the monthly rent. Before the Appellate Court the petitioner maintained that there is no default as this amount of Rs,23,000 ought to have been considered for adjustment of rent. In the memo. of appeal, the petitioner further claimed that in spite of his right to seek adjustment of Rs,23,000 he out of abundant caution has been tendering monthly rent to respondent No,2. The appeal was heard and learned 2nd Additional District Judge, Jacobabad vide his order dated 23-9-2005 concurred with the decision of the Rent Controller and dismissed the appeal which is being impugned in the present constitution petition.
8. In the present petition the petitioner in paragraph No,2 has stated that the respondent No,3 is fraudulently claiming ownership to the house of the petitioner. He further claimed that there is no relationship of landlord and tenant and that only 8' x 4' feet `Chabutra' was rented out to him for selling milk.
9. The learned counsel for the petitioner has argued that petitioners' defence was struck off on the ground that he did not deposit rent for the month of October, 1994 in time. He submitted that factually no default in the payment of rent has been committed. He supported his argument by referring to two rent receipts of deposits made in Court. While referring to Receipt No,20870 dated 25-4-1994 he submitted that under the said receipt a receipt of Rs,3,600 was made for the period covering from March, 1989 to February, 1994 whereas the rent for the said period comes to only Rs,3,540 and an excess of Rs,60 was deposited in Court, and therefore, no default has been committed. This argument of petitioner's counsel is misplaced. The period from March, 1989 to February, 1994 comes to 60 months and rent @ Rs,60 for 60 months comes to Rs,3,600 and not Rs,3,540 and therefore, the question of excess payment does not arise. Having failed in establishing excess payment the learned counsel then argued that the rent Receipt No,20861 as well rent Receipt No,20870 cover rent for the months of March twice and therefore, there is an excess payment of Rs,60 to petitioner's credit, which is sufficient to vitiate the default. This argument is also misconceived as the Receipt No,20861 cover rent for the month of March, 1994 whereas the Receipt No,20870 cover the rent for the month of March, 1989. As the March rent of the two receipts cover the months of March of different years therefore, the question of double deposit of rent or overlapping in the payment of rents simply does not arise.
10. The learned counsel for the petitioner then argued that Senior Civil Judge passed the order and not Rent Controller and therefore, the entire proceedings stand vitiated. This argument too is equally misplaced. On the very first line of the first page of the order it is stated "Senior Civil Judge and Rent Controller". When asked by this Court whether Senior Civil Judge also holds the office of Rent Controller, the learned counsel for the petitioner had no other way to respond except by nodding in admission.
11. In response to respondent No,3 application filed under section 16(2) of the Sindh Rented Premises Ordinance wherein it was claimed that Rent for the month of October, 1994 was not deposited in time, the petitioner in his counter-affidavit gave the excuse that he was seriously ill and therefore, could not deposit the rent in time. Both the Courts below did not believe the excuse of the petitioner and held that petitioner committed default. It is surprising to note that in the memo. of present petition, the petitioner did not take a single ground to rebut such concurrent findings. In fact not a single word has been said in the memo. of petition in support of his illness. All that the petitioner was interested was to deny the landlord and tenant relationship.
12. With regard to the plea that there exists no relationship of landlord and tenant between the parties, the same on the face of it is contumacious and belied by the petitioner's own pleadings. In paragraph two of the memo. of appeal which the petitioner filed in the Court of District Judge, he in addition to the admission of tenancy on a piece of land measuring 8' x 4' feet also admitted tenancy of the packa construction as well. In the said paragraph he has clearly stated that he had raised packa construction on the plot after taking permission from the respondent No,2 and was liable to pay rent to respondent by adjusting the cost of construction. Then in the present petition he goes back to his original position taken in his written statement and claims that he was let out only a "Chabutra" on a small piece of land measuring 8' x 4' feet. No party can be allowed to blow hot and cold at the same time. In order to avoid the consequences of default a tenant cannot be allowed to deny the ownership of the landlord. As the petitioner has himself admitted that he was inducted as tenant not only on the `Chabutra' but also on the packa construction, then under Article 115 of the Qanun-e-Shahadat he is estopped from denying the title of respondent No,3. A tenant is only allowed to deny the title of the person who inducted him as tenant by first handing over the premises back to his landlord. For such reason that the petitioner has to hand over the possession of the premises back to respondent No,3. Furthermore, in 1997 CLC 623 this Court held that where tenant denies relationship of landlord and tenant and such relationship stands proved, then no other course is left for the Court but to order his eviction. In 1992 SCM R 1170 also the Honourable Supreme Court held that if there is contumacious denial of relationship, the tenant is liable to be evicted straightaway without recording evidence on the other grounds such as default, damage to property or personal need. Similar are the findings in the case reported as 1997 SCM R 567.
13. In support of his case, learned counsel for the petitioner has relied upon 1991 CLC 1310, 1992 M LD 1391 and 2005 CLC 1696. None of these cases have any relevance to the facts or the controversy involved in the present case.
14. From what has been discussed hereinabove it is established that after giving up the ground of medical excuse in the present petition, the petitioner has contumaciously denied the title of respondent No,3 who admittedly inducted him as tenant and therefore, no ground for interference in the impugned judgment is made out in the constitutional jurisdiction of this Court. The petition is therefore, dismissed in limine.