1. ' ARSHAD NOOR KHAN, J.---This Constitutional petition under Article 199 of Constitution of the Islamic Republic of Pakistan,1973, has been filed by the petitioner against the judgment dated 30- 4-2005 passed by the learned II-Additional District Judge, Karachi-East in FRA No,46 of 2003 Muhammad Afzal v Muhammad Saeedullah whereby the appeal was dismissed and the order passed by the VI-Rent Controller, Karachi-East dated 19-3-2003 in Rent Case No,358 of 2001 whereby the ejectment petition was allowed and the petitioner was directed to handover the vacant possession of the demised premises to the respondent No,3 has been upheld.
2. ' The facts leading rise to the present petition in brief are that respondent No,3 filed eviction application under section 15 of the Sindh Rented Premises Ordinance, 1979, hereinafter shall be referred to as the "Ordinance 1979" against the petitioner stating therein that he is the owner of Shop No,5, Saeed Market constructed on Plot No,1/697 situated in Shah Faisal Colony No,1 Karachi, and the said shop was rented out to the petitioner at the rate of Rs,225 per month in addition to other charges. It is further stated in the ejectment petition that the petitioner paid rent up to July, 2000 on 7-8-2000 which was acknowledged by issuance of receipt. The petitioner thereafter failed to tender the rent since August, 2000 as such he committed wilful default in payment of monthly rent. It is further stated in the ejectment petition that the petitioner failed to pay the electricity charges which accumulated to the tune of Rs,5,572. It is further stated in the petition that the premises required bonafidely by the landlord for his personal use as well as for use of his son and that the petitioner is running boucher shop, which is causing inconvenience to the adjoining shopkeepers. The petitioner did not pay the monthly rent as well as electricity charges as such respondent No,3 filed application for eviction of the petitioner as stated above. The petitioner was served with the notice of the petition, who filed his written statement inter alia, denying the allegations contained therein and stated that the shop was rented out to him on pagree basis, for which he paid Rs,40,000 to respondent No,3 and since it was rented out on pagree basis as such meagre amount of Rs,225 was fixed as rent with the condition that the respondent will not enhance the rent forever and that he will be responsible for change of the receipt in the name of any other person to whom the petitioner will induct as tenant. It is further stated that in the first week of July, 2000, respondent No,3 obtained a friendly loan of Rs,5,000 from him which was adjustable towards future monthly rent as such the said loan of Rs,5,000 was not fully adjusted towards the future monthly rent and still a substantial part of the loan remained unpaid as such no wilful default in payment of rent was committed. He also denied to have committed any default in payment of electricity charges and personal requirement of the shop in question was also refuted.
3. ' After filing the written statement, respondent No,3 filed his affidavit-in-evidence and produced unpaid electricity bills and also led evidence of P.W. Bin Yamin son of Muhammad Amin as well as evidence of P.W. Muhammad Waqarullah son of Saeedullah by filing their affidavits-in evidence.
4. The all were also cross-examined by the learned counsel for the petitioner at great length. The petitioner filed his affidavit-in-evidence as well as affidavits of his witnesses namely: Saleem Akhtar son of Muhammad Aqil and Muhammad. Khalid son of Abdul Hafeez, who were also cross- examined by the learned counsel for respondent No,3. The learned Rent Controller at the time of recording judgment was pleased to frame the following points for determination:-
(1) Whether the opponent has committed wilful default in payment of monthly rent, water conservancy charges and electricity charges?
(2) Whether the opponent has created inconvenience and nuisance to the applicant, other shopkeepers of the market and the residents of the near houses?
(3) Whether the applicant requires the demised shop for personal need for himself and for his sons bonafidely and in good faith ?
(4) What should the decree be?
5. ' The learned Rent Controller after considering the whole evidence available on record decided point No,1 in affirmative and point Nos.2 and 3 in negative and allowed the ejectment of the petitioner on the ground of wilful default in payment of monthly rent as well as electricity charges.
6. ' The petitioner being aggrieved against the order of his eviction preferred an appeal which was entrusted to the learned II-Additional District Judge, Karachi-East who confirmed the finding on point No,1 recorded by the learned Rent Controller and dismissed the appeal, hence the present petition.
7. ' I have heard Mr. Muhammad Rafi, Advocate for the petitioner and Mr. S.M. Akhtar Rizvi, Advocate for Respondent No,3.
8. ' Mr. Muhammad Rafi learned counsel for the petitioner vehemently contended that the respondent could not ask for eviction of the petitioner from the shop in dispute on any ground for the reason that the shop was rented out on the basis of "pagree" amounting to Rs,40,000 as such the respondent was stopped to file ejectment application on any ground. He further contended that respondent obtained a friendly loan of Rs 5,000 from the petitioner, adjustable towards future monthly rent and the petitioner has not committed any default in payment of monthly rent because of adjustment of friendly loan and even at the time of filing of rent application a substantial balance from the said loan remained unpaid, as such there was no default in payment of rent. He further contended that the payment of friendly loan by the petitioner to the respondent No,3 has been fully substantiated by D.W. Khalid and D.W. Saleem Akhtar and their evidence remained unshaken in their cross-examination as such the petitioner has discharged the burden of advancement of loan to the respondent No,3, who has not led any convincing evidence to controvert the stance of the petitioner. He further contended that respondent himself was using electric connection by using kunda tactics for which exorbitant bill was issued by the KESC which was subsequently reduced to the tune of Rs,4,500, which was subsequently paid by the petitioner as such there was no wilful default in payment of electricity charges as such the learned lower Courts completely failed to appreciate the evidence available on record, therefore the orders passed by them, suffer from legal defect and liable to be set-aside. In support of his contention he has relied upon the case of Mrs. Shirazee. v. Abdul Qadir reported in 1993 CLC 528.
9. ' Mr. S.M. Akhtar Rizvi, learned counsel for the respondent No,3 while refuting the contentions advanced by the petitioner's counsel has contended that the default in payment of rent from October, 2000 till March 2002 has not been disputed by the petitioner and as per assertion of the petitioner he deposited the rent in miscellaneous rent application which was not a valid tender of rent and both the learned Courts below rightly came to the conclusion that the petitioner committed wilful default in payment of rent and the concurrent findings of fact recorded by both the lower Courts, could not be disturbed in constitutional jurisdiction of this Court. He further contended that non-payment of electricity charges to KESC has also been admitted by the petitioner, which in view of section 2(i) of the Ordinance 1979 is included in rent and its-non payment renders the tenant liable for eviction and the admission of the petitioner regarding non- payment of electricity charges is sufficient to hold him guilty of non-payment of electricity charges . In support of his contention, he has relied upon the case of Sheezan Ltd. v. Abdul Ghaffar reported in 1992 SCM R 2400; the case of Secretary of Punjab, Forest Department v. Ghulam Nabi reported in PLD 2001 SC 415; the case of Mirza Abdul Aziz Baig v. Mushtaq Ahmed reported in 1980 SCM R 834; the case of Muhammad Sharif v. Muhammad Afzal Sohail reported in PLD 1981 SC 246; the case of Allah Din v. Habib reported in PLD 1982 SC 465; the case of Shaikh Muhammad Bashir Ali v. Soofi Ghulam Mohiuddin reported in 1996 SCM R 813 and the case of Abdul Ghaffor v. Mst. Amtul Saeeda reported in 1990 SCM R 28.
10. ' I have considered the arguments advanced on behalf of the parties and have gone through the material available before me.
11. The petitioner is heavily relying upon the rent agreement executed in between the parties, vide annexure' B' to the petition to contend that shop in question was rented out to him on payment of pagree amounting to Rs,40,000 and after execution of the said agreement, the respondent/ landlord was not within his right to ask the ejectment of the petitioner on any ground including the default in payment of monthly rent. The said emphasis of the petitioner and his counsel, in my humble opinion, is devoid of any force, for the reason that under the provisions of Ordinance 1979, the term "pagree" has not been recognized. The said term "pagree" is therefore, foreign to the provisions of Ordinance 1979. Even terms and conditions arrived at, with consent of the parties, which are contrary to the law of land, could not be treated as lawful and enforceable under the law. The learned counsel for the petitioner has completely failed to produce any case law to show that terms and conditions which are against the prevailing law can be legitimately enforced before the Courts and Court can grant such relief on the basis of illegal terms and conditions settled in between the parties. There could be no cavil to the proposition that term "pagree", is against the provisions of Ordinance, 1979 which could not be enforced through the process of Court, as such in my opinion the agreement, annexure B' containing the term "pagree" is against the provisions of Ordinance, 1979. Even otherwise, in case, if the said agreement is given effect, then took the default in payment of rent by the tenant could not be condoned, if it has been wilfully committed by him. In the present case, respondent No,3 has alleged the default committed by the petitioner from October, 2002 which has not been controverted by the petitioner in his evidence before the learned lower Courts. The default as alleged by the respondent/ landlord against the petitioner therefore remains unshaken. The plea raised by the petitioner that he paid Rs,5,000 as friendly loan to respondent No,3 adjustable towards the monthly rent, in my humble opinion, has not been supported with convincing and plausible evidence by the petitioner. The petitioner has led evidence of DW Muhammad Khalid and DW Saleem Akhtar, who both in their affidavits-in- evidence have stated that the petitioner paid friendly loan of Rs,5000 to the respondent/landlord which was adjustable towards monthly rent DW Muhammad Khalid ,in his cross-examination has stated that the loan of Rs,5,000 was advanced in the month of March 2000 whereas the petitioner and his witness Saleem Akhtar have stated the advancement of loan in the month of July, 2000, adjustable towards the monthly rent. The evidence of the petitioner and his witness is therefore divergent on the date and month of advancement of alleged friendly loan of Rs,5,000 to the respondent/landlord. Even otherwise, in case, if it was agreed in between the parties to adjust the monthly rent towards friendly loan of Rs,5,000 how the petitioner allegedly paid the rent after July, 2000 to the respondent as according to him he paid rent of August and September, 2000, vide receipt, annexure `E-6' to the petition. The said receipt produced by him, itself negate the stance taken by him and adversely reflect on his defence. Even after advancement of such loan, he did not obtain any receipt from the respondent No,3 though he was obtaining receipts of monthly rent from him prior to September, 2000. Even no notice has been served by him on the landlord regarding adjustment of monthly rent towards alleged loan of Rs,5,000. There is, therefore, no independent and confidence inspiring evidence available on record to accept the contention advanced by the petitioner regarding payment of loan of Rs,5,000 to the respondent No,3 which appears to be fallacious, concocted and without any substance.
12. The petitioner, in his statement before the learned lower Court, has admitted that the electricity was disconnected by KESC because of non-payment of bills. The said admission of the petitioner is sufficient to hold that he failed to pay the electricity charges to KESC which includes in rent, in view of section 2(i), ibid, as the electricity, water and conservancy charges are included in rent and its non-payment tantamount to default in payment of monthly rent. In the case of Abdul Ghafoor, supra, the Hon'ble Supreme Court was pleased to observe that the electricity being included in the definition of rent and tenant being liable to pay the same, default on his part would make him liable for ejectment also been established on the basis of evidence available on record. Evidence before the Rent Controller. In the present case the default in payment of electricity charges has been admitted by the petitioner in his cross-examination as such default in payment of electricity charges has for non-payment of such charges when default was clearly established on the basis of evidence available on record.
13. ' The present petition has been filed by the petitioner against the concurrent findings of facts recorded by the both the learned Courts below on perusal of whole evidence available on record.
14. The said findings of the learned lower Courts neither seems to be capricious nor arbitrary nor are the result of misreading or non-reading of the evidence available on record, and the findings on fact, in my humble opinion, could not be disturbed in writ jurisdiction nor reappraisal of the evidence is possible in writ jurisdiction of this Court. In the case of Muhammad Sharif, supra, 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 on the evidence available on record, does not make it a case for interference in exercise of its constitutional jurisdiction. The dictum laid down by the Hon`ble Supreme Court is fully applicable under the circumstances of the present case. The case law relied upon by the learned counsel for respondent No,3 supports the judgment passed by the lower Courts. The case-law relied upon by the counsel for the petitioner, in my humble opinion, is distinguishable from the circumstances of the present case.
15. ' After examining the order impugned passed by the learned lower Court, I am of the firm opinion that no illegality is apparent on the face of record to declare the impugned order, passed by the learned Court, to be illegal, ultra vires and passed without lawful authority. In the morning, the petition was dismissed, vide short order, reproduced hereinbelow, for the sake of convenience.
16. "For the reasons to be recorded later on, the petition is dismissed. The judgments passed by the learned lower Courts are maintained. Since the time to vacate the premises in question, granted by the lower Court has expired, as such the petitioner is allowed two months time to vacate the premises in question, subjects however, to the condition that he shall continue depositing the rent in the Court of Rent Controller, failing which the Rent Controller will be at liberty to issue writ of possession without any notice to the petitioner."
17. ' The above are the reasons for the short order.