1. ARSHAD NOOR KHAN, J.--- By this constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, the petitioner has challenged the vires of the order, dated 8-1-2007, passed by the learned III-Additional District Judge, Karachi-South in First Rent Appeal No,199 of 2004 (Muhammad Rafique v. Muhammad Rafique and others), whereby the appeal, filed by the appellant, was dismissed.
2. The facts, as stated in the petition, are that the respondent filed ejectment application under section 15 of Sindh Rented Premises Ordinance, 1979, hereinafter shall be referred to as the "Ordinance, 1979", for the eviction of the petitioner from Flat No,8, situated a Property No,RC/4, 91/A, Haji Sakhi Muhammad Compound, Mouji Street, Ragudana Street, Ranchore Line, Karachi. The aforesaid property was purchased by Mst. Hajiani Khan Bibi wife of Nek Muhammad from its previous owner Mst. Jamila Hajiani Sakhi Muhammad wife of Sakhi Muhammad. After purchase of the said property the mother of the respondent served a notice under section 18 of Ordinance, 1979 on the petitioner on 3-12-1999 about change of ownership which was received by him, but no rent was tendered to her by the petitioner. It is further stated in the petition that the mother of the respondent, namely, Hajiani Khan Bibi died on 21-12-2000 and left them behind her as legal heirs.
3. That in spite of receipt of the notice, the petitioner did not tender any rent, as such respondent No,1 was constrained to file application for ejectment of the petitioner, as stated above.
4. The petitioner was served with the notice of the rent application, who filed his written statement wherein nowhere the relationship of-landlord and tenant was disputed by him. The respondent also filed application under section 16(1) of Ordinance, 1979 and the petitioner filed objections to that application and the learned Rent Controller after hearing the learned counsel for the parties, allowed the said application under section 16(1), (ibid), and directed the petitioner to deposit arrears of three years prior to the filing of the rent application and also directed him to deposit future monthly rent at the rate of Rs,200 per month vide order, dated 3-7-2004. The petitioner did not comply the aforesaid order passed by the learned Rent Controller, as such the respondent filed application under section 16(2) of Ordinance, 1979. The notice of the said application was served on the petitioner wherein he denied to have committed any default in payment of rent and stated that he is depositing rent in Miscellaneous Rent Case No,1295 of 1999 at the rate of Rs,70 per month, as such he has not committed any default in compliance of the tentative rent order. The learned Rent Controller called the report from the Nazir and in the light of report of the Nazir and hearing of learned counsel for the parties, allowed the said application, thereby striking off the defence of the petitioner vide order, dated 30-10-2004.
5. The petitioner being aggrieved against the aforesaid order, passed by the learned Rent Controller, preferred First Rent Appeal No,199 of 2004 (Muhammad Rafique v. Muhammad Rafique and others), which was entrusted to the learned III-Additional District Judge, Karachi-South, who, after hearing the learned counsel for the parties, also maintained the order passed by the learned Rent Controller and dismissed the appeal vide order, dated 8-1-2007, hence present petition.
6. I have heard Mr. Abid Hussain, learned counsel for the petitioner, and Mr. Iftikhar Javaid Qazi, learned counsel for respondent No, 1.
7. Mr. Abid Hussain, learned counsel for the petitioner, vehemently contended that the rent order passed by the learned Rent Controller was illegal and suffers from basic defect about non- calculation of the arrears of rent, as such the non-compliance of the tentative rent order could not entail in striking off the defence of the petitioner, as such the order, passed by the learned trial Court, thereby directing the petitioner to deposit the arrears of rent as well as future rent, was basically a defective order. According to him the superstructure based on such defective and illegal order could not sustain and the whole structure based on it has been collapsed. He further contended that the specific quantum of rent has not been stated in the tentative rent order and there is also no direction to the petitioner to deposit future monthly rent in Court. According to him the petitioner is depositing monthly rent in Miscellaneous Rent Case No,1295 of 1999, as such there is no wilful default in non-compliance of the tentative rent order, as such the orders passed by the learned trial Court and the Appellate Court are illegal, inoperative and were passed without lawful authority. In support of his contention he relied upon the cases of Dr. Aftab Ahmed Khan v. Zaibun- Nisa, reported in 1998 SCM R 2085 and Mst. Khalda Begum v. Amtul Baqi reported in 1998 CLC 306.
8. Mr. Iftikhar Javaid Qazi, learned counsel for respondent No,1, vehemently contended that the relationship of landlord and tenant has not been disputed by the petitioner, as such the learned Rent Controller was justified in passing the tentative rent order against him, thereby directing him to deposit the arrears as well as future rent in Court, which order has not been complied with by the petitioner, as such the penal clause of subsection (2) of section 16 of Ordinance, 1979 comes in operation and his defence was rightly struck off by the learned Rent Controller and the appeal, filed by him, was also rightly dismissed by the learned Appellate Authority and no illegality has been pointed out by the petitioner in the order passed by the learned lower Court, as such the petition merits no consideration and is liable to be dismissed.
9. I have considered the arguments advanced on behalf of the parties and have gone through the material available before me.
10. The learned counsel for the petitioner has laid great stress on his arguments that the tentative rent order, passed by tire learned Rent Con slier, was basically a defective and illegal order and its noncompliance does not entail in any penal action against the petitioner. I have gone through the tentative rent order, passed by the learned Rent Controller and found that nowhere in the tentative rent order, the petitioner disputed the relationship in between him and the respondent as landlord and tenant. Even in the pleadings the petitioner has admitted the relationship of landlord and tenant in paragraph 1 of his written statement, wherein the rate of rent is also specified. Since the relationship of landlord and tenant was not disputed by the petitioner, so also the quantum of rent at the rate of Rs,200 per month, as such the learned Rent Controller vide order, dated 3-7-2004 directed, him to deposit the arrears of rent for three years within one month at the rate of Rs,200 per month and was further directed to deposit future monthly rent 'in this case on or before 10th of each calendar month. The said order is lawful, perfect and clear which speaks about deposit of arrears of rent at the rate of Rs,200 per month as well as deposit of future rent at the same rate on or before 10th of each calendar month. The thrust of the learned counsel for the petitioner is that the quantum of the arrears is not mentioned in the tentative rent order, which, at the most, may be a. Technicality in the order though it is not available to the petitioner for the simple reason that the rate of rent is specified in the tentative rent order, passed by the learned Rent Controller and calculation of arrears for three years is not a difficult task. The petitioner admittedly has not deposited the arrears of rent as well as future rent in the present case before the learned Rent Controller and has not assigned any just and reasonable ground for non-compliance of the tentative rent order. Mere non-mentioning of the quantum of arrears of rent in any way do not render the tentative rent order passed by the learned Rent Controller as ineffective, invalid or illegal. Even otherwise, the direction to the petitioner regarding deposit of the future monthly rent at the rate of Rs,200 per month on or before 10th of each calendar month has not been complied with which is wilful default on the part of the petitioner. The learned Rent Controller, therefore, rightly struck off the defence of the petitioner because of non-compliance of the tentative rent order and the Appellate Court also was justified in maintaining the order passed by the learned Rent Controller.
11. Both the learned Courts have concurrently held the petitioner guilty of non compliance of the tentative rent order, as such the penal clause of subsection (2) of section 16 of Ordinance, 1979 comes in operation and the learned lower Court was perfectly justified in striking off the defence of the petitioner on the basis of report of the Nazir.
12. The non-compliance of the tentative rent order, passed by the learned Rent Controller, is a question of fact and both the learned lower Courts have decided the said question in affirmative, thereby holding that the petitioner guilty of non-depositing the arrears as well as the future rent and the question of fact could not be questioned, determined or upset in writ jurisdiction of this Court.
13. The learned counsel for the petitioner has also vehemently contended that the rent is being deposited in the miscellaneous rent case, but after passing of the tentative rent order by the learned Rent Controller, there was hardly any ground for the petitioner to deposit the rent in miscellaneous rent application in the name of some other person and that too at the rate of Rs,70 per month and the petitioner has not justified his act of depositing rent at the rate of Rs,70 per month in the account of some other landlord. The tentative rent order, passed by the learned Rent Controller, has, therefore, been Wilfully violated by the petitioner and his defence was rightly struck off and the appeal was rightly dismissed by the learned Appellate Authority. The case-law relied upon by the learned counsel for the petitioner in my humbly opinion are entirely distinguishable from the circumstances of the present petition and are inapplicable. The petition was dismissed in the morning vide short order for the reasons to be recorded later on. The short order is reproduced hereinbelow for the sake of convenience:-- "For reasons to be recorded later on the petition is dismissed summarily. Since the time to vacate the property in question by the learned Appellate Authority has expired, as such 60 days' time is granted to the petitioner to vacate the premises in question and hand over vacant physical possession of the premises to the landlord. The petitioner is directed to continue to deposit monthly rent at the same rate, failing which the learned Rent Controller will be entitled to issue writ of possession without any notice to the petitioner.
14. The above are the reasons of the short order.