1. ' ARSHAD NOOR KHAN, J.---The Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has been filed by the petitioner thereby challenging the legality and validity of the order passed by the learned II-Additional District Judge, Karachi-Central dated 31-7- 2007 in F.R.A. No,17 of 2005 Merajuddin Ghaury v. Muhammad Aslam whereby the appeal filed by the petitioner was dismissed against the order passed by the learned V-Rent Controller, Karachi- Central dated 24-12-2004, in Rent Case No,176 of 2004 Muhammad Aslam and others v. Merajuddin Ghaury and others whereby the defence of the petitioner was struck off under section 16(2) of Sindh Rented Premises Ordinance, 1979, hereinafter shall be referred as the "Ordinance 1979", whereby application under section 16(2) of the Ordinance 1979 was allowed and he was directed to hand over the vacant possession of the shop in question to the respondent Nos. 1 to 3 within thirty days.
2. ' The facts leading rise to the present petition in brief, are that the respondent Nos. 1 to 3 filed application under section 15 of the Ordinance, 1979 for eviction of the petitioner and respondents Nos. 4 and 5 from the shop situated in Waris Manzil constructed on Plot No,WS-14, Block 1, Federal 'B'
3. Area, Karachi. The said shop was rented out to the petitioner by the father of the respondent Nos. 1 to 3 at a monthly rent of Rs,160. It is further stated in the rent application that the petitioner stopped the payment of monthly rent from August, 1988 for which respondent Nos. 1 to 3 so many time approached to the petitioner for payment of arrears of rent but he refused to pay the same as such on 27-3-2003 a legal notice was served on the petitioner thereby calling upon him to pay the arrears of rent from August, 1988 at the rate of Rs,160 per month and also asked him to enhance the monthly rent from Rs,160 per month to Rs,10,000 per month. It is further stated in the rent application that the petitioner parted with the possession of the demised shop with respondents Nos. 4 and 5 without permission of the landlord. It is further stated in the rent application that the petitioner failed to pay the electricity charges from 16-1-2004 and Rs,4,700 accumulated due against him towards electricity charges and the electricity charges included in the rent as such he has also committed default in payment of electricity charges. It is further stated in the rent application that respondent No,1 and his son Muhammad Arif are jobless and they required the premises bonafidely for their personal use, as such the ejectment application as stated above, was filed against the petitioner and respondent Nos. 4 and 5. The petitioner and respondent Nos. 4 and 5 were served with the notice and petitioner contested the matter and filed his written statement inter alia, admitting therein the relationship of landlord and tenant and quantum of rent at the rate of Rs,160 per month by mutual consent. It is further stated in the written statement that rent was being paid from time to time to the landlord and thereafter it was deposited in MRC No,653/1991.It is further stated in the written statement that the electricity bills were paid by him and that he has not sublet the shop to respondents Nos. 4 and 5 who were his workers. The requirement of property in question for personal use by the respondent was also denied by the petitioner. The landlord filed application under section 16(1) of the Ordinance 1979, which was allowed by the learned Rent Controller vide order dated 9-10-2004 thereby directing him to deposit the arrears of the rent as well as future monthly rent at the rate of Rs,160 per month. The petitioner did not comply with the tentative rent order dated 9-10-2004 passed by the learned Rent Controller and filed application under section 151, C.P.C. Read with section 20 of the Ordinance 1979 for recalling the tentative rent order dated 9-10-2004. The respondents Nos. 1 to 3 also filed application under section 16(2) of the Ordinance, 1979 and the learned Rent Controller after hearing of both the learned counsel for the parties dismissed the application under section 151, C.P.C. Read with section 20 of the Ordinance, 1979 filed by the petitioner and allowed the application under section 16(2) of the Ordinance, 1979, thereby striking off the defence of the petitioner, as stated above, as such the petitioner challenged the said order passed by the learned Rent Controller in F.R.A. No,17 of 2005, which was entrusted to the learned II-Additional District Judge, Karachi-Central, who after taking into consideration all the relevant material dismissed the appeal vide order dated 31-7-2007, hence the present petition.
4. ' I have heard Syed Muhammad Akber, advocate for the petitioner and Mr. Mohsin Imam, Advocate holding brief for Mr. Muhammad Ayoob Khan, advocate for respondents Nos. 1 to 3.
5. ' The learned counsel for the petitioner vehemently contended that there was dispute on the quantum of monthly rent and the period of alleged default claimed by the landlord which fact requires evidence after framing the issues and the learned Rent Controller has not framed the issue nor evidence has been led by the parties on this aspect of the matter as such the order passed by the learned Rent Controller is illegal, inoperative and against the canon of law and the learned appellate court was not justified in maintaining the order passed the learned Rent Controller. He further contended that the petitioner deposited rent in MRC No,653 of 1991 and till today he is depositing rent in the said MRC as such the default, if any, was technical in nature which could not be resulted in eviction of the petitioner. According to him the courts below were not justified in depriving off the petitioner regarding his legitimate right to establish his case by leading cogent, convincing and plausible evidence to refute the claim of the landlord as such his legitimate right has been denied by both the learned courts below therefore the order passed by the learned courts suffer from patent illegality, which may be interfered in constitutional jurisdiction of this Court. In support of his contention, he has relied upon the case of Muhammad Yousuf v.
6. Maqbool Ahmed reported in 1985 CLC 2862; the case of Ismail v. Mst. Sara Bai and another reported in 1987 CLC 1393; the case of Aurangzeb v. Syed Amjad Ali reported in 1984 CLC 1765; the case of Ali Muhammad v. Khalil Ahmed Allahwala reported in 1985 CLC 1297; the case of Syed Khadim Hussain Abedi v. Mst. Geti Ara Begum reported in 1984 CLC 68; the case of Mushtaq Hussain v. Muhammad Shafi reported in 1979 SCM R 496; the case of Mahmood Hassan v. Abdul Rauf reported in NLR 1980 UC 33; the case of Muhammad Ali v. Shafiq Ahmad reported in 1992 M LD 801 and the case of Hazur Bux v. Jethanand reported in 1988 MLD 2018.
7. ' The learned counsel for the respondents has supported the order passed by the learned lower Court.
8. ' I have considered the arguments advanced on behalf of the parties and have gone through the material available before me.
9. It is not disputed by the petitioner that even after receipt of notice dated 27-3-2003 he did not tender arrears of rent and future monthly rent to the respondents Nos. 1 to 3 and the respondents Nos. 1 to 3 claimed the default in payment of rent on the part of the petitioner from August, 1988.
10. The petitioner has not disputed the non-payment of monthly rent to the landlord and has deposited rent in MRC No,653/1991. In his counter-affidavit to the application under section 16(2) of the Ordinance, 1979 he has stated that he is depositing rent in the aforesaid MRC since 1991.
11. Admittedly the petitioner has not disputed the relationship of landlord and tenant in between them, as well as quantum of monthly rent at the rate of Rs,160 as such it was incumbent upon him to offer the rent to respondents Nos. 1 to 3 after receipt of notice dated 23-3-2003.Even at the time of passing the tentative rent order neither relationship of landlord and tenant was disputed nor quantum of rent was disputed as such there was nothing disputed before the learned Rent Controller at the time of passing the tentative rent order dated 9-10-2004 to restrain him not to pass tentative rent order, as such after passing the tentative rent order, the petitioner could not be absolved from his liability to deposit the arrears of monthly rent as well as future monthly rent in the present proceeding before the Rent Controller. The learned counsel for the petitioner candidly admitted that even till now the rent has not been deposited in the present case as the same is being deposited in misc. rent application, therefore, it appears that the petitioner wilfully violated and flouted the directions of the Rent Controller to deposit the arrears as well as future monthly rent in the present proceedings. Even the tentative rent order bears two fold aspects; one is with regard to deposit of the arrears of rent and the other is with regard to deposit of future monthly rent. The petitioner admittedly has not complied with both the directions of the tentative rent order dated 9-10-2004. After passing of tentative rent order, the deposit of rent in misc. Rent application by the tenant could not be treated as valid tender of rent. In case any authority is needed, reference may be had to the case of Abdullah Ghanghrio v. Tahira Begum reported in 1984 CLC 3102, wherein it was observed that deposit of rent in misc. Rent application without any proper explanation was not a valid tender in the account of ejectment case, as directed by the Rent Controller in the case of Mst. Zulekha Bai v. Muhammad Yaqoob reported in 1981 CLC 479, it was observed that the tenant admittedly in violation of rent order passed by the Rent Controller continuing to deposit rent in misc. Rent application, has committed wilful default in violation of the tentative rent order passed by the Rent Controller. In the case of Malik Aman v. Khawaja Abdul Aziz reported in 1987 CLC 425, it was held that the tenant admittedly failed to deposit arrears of rent and future monthly rent during the pendency of eviction application after passing of tentative rent order by the Rent Controller as such non-compliance of the tentative rent order renders the defence of the tenant liable for striking off. In all these cases the Hon'ble High Court was pleased to observe that the arrears of rent and future monthly rent deposited by the tenant in the misc. Rent application is not valid and lawful tender of rent and has not complied with the tentative rent order passed by the Rent Controller, as such he wilfully and deliberately has committed the violation of the order passed by the Rent Controller and penal section of subsection (2) of section 16 of the Ordinance, 1979 comes in operation for striking off his defence_ In the present case the petitioner has admittedly neither deposited the arrears of rent nor future monthly rent in the account of the present rent proceedings without any just and sufficient explanation, as such, he has wilfully and deliberately violated the orders passed by the Rent Controller thereby directing him to deposit the arrears as well as future monthly rent in Court.
12. ' The learned counsel for the petitioner vehemently contended that the learned Rent Controller had to frame the issue regarding quantum of the rent and had to allow the parties to lead evidence on this aspect of the matter but nowhere the petitioner has disputed the quantum of monthly rent at the rate of Rs,160 per month as such there was no dispute with regard to the quantum of the monthly rent nor even the relationship of landlord and tenant has been disputed by the petitioner so as to say that the tentative rent order passed by the learned Rent Controller was without lawful authority as such there was no necessity to frame any issue and allow them to lead evidence. The case-law relied upon by the learned counsel for the petitioner, in my humble opinion, are distinguishable from the circumstances of the present case as in the present case no material was available on record to compel the Rent Controller to frame any issue prior to passing of the tentative rent order on the disputed and controversial pleas, as such the said authorities, in my humble opinion are inapplicable.
13. ' Both the learned courts below have concurrently held the petitioner guilty of violation of the tentative rent order dated 9-10-2004 and the petitioner himself has admitted about non-deposit of rent in the Court of Rent Controller, which are concurrent findings on the question of fact recorded by both the learned courts below and the findings on the point of fact recorded by the lower courts could not be disturbed in constitutional jurisdiction of this Court. In the case of Muhammad Sharif v.
14. Muhammad Afzal Sohail reported in PLD 1981 SC 246, the Hon'ble Supreme Court was pleased to observe that the Tribunal having jurisdiction to decide the matter has jurisdiction to decide it rightly or wrongly and mere fact that another conclusion being possible and the evidence available on record does not make it a case for interference in exercise of constitutional jurisdiction in writ petition before the High Court. The dictum laid down by the Hon'ble Supreme Court in the case of Muhammad Sharif, supra, is applicable to the circumstances of the present case.
15. ' For the foregoing reasons, I do not find that the learned appellate Court or the learned Rent Controller passed the orders in excess of their jurisdiction, so as to interfere in writ jurisdiction of this Court. The order impugned herein do not suffer from any illegality as such the same could not be declared to be illegal, inoperative or ultra vires. The petition has, therefore, no merit, and the same is hereby dismissed' summarily. The petitioner was allowed thirty days time by the learned Rent Controller, to vacate the premises in question, which time has expired as such further time of thirty days is allowed to the petitioner to handover the vacant and peaceful possession of the property in question to the respondent Nos. 1 to 3, subject, however to the condition that he shall pay the rent of the property in question, in accordance with law, failing which the learned Rent Controller may issue writ of possession without any further notice.
16. ' C.M.A. No,2940 of 2007 is also dismissed, in the light of the observations made above.