1. ' KHAWAJA NAVEED AHMED, J.---This C.P. Has been filed by Syed Arif Ali Sabri through Mr. Hassan Ahmed, Advocate against the concurrent findings of both the Courts below directing the petitioner to vacate the rented premises on the ground of default in payment of rent.
2. ' Brief facts of the case are that respondents are legal heirs of deceased Abdul Samad, who was the owner of rented premises viz. Shop No,9, situated on Plot No,1/503, behind Nayyab Masjid, Liaquatabad, Karachi. This shop was initially given on rent to the petitioner in 1988 at the rate of Rs,150 per month. On 23-12-2005 the legal heirs of deceased has filed a case under section 8 of S.R.P.O., 1979 viz. Rent Case No,825 of 2005 for enhancement of rent/fixation of fair rent. The learned Rent Controller vide order dated 20-2-2006 was placed to fix the rent at the rate of Rs,1000 per month and had ordered to the petitioner to pay the rent with effect from 1-12-2005 on enhanced rate.
3. ' The petitioner failed to comply with the orders of the Rent Controller. Mst. Shehnaz had sent legal notice through her Lawyer to the petitioner on 15-4-2006, which was received by them on 18-4- 2006. After receipt of notice for payment of rent the tenant/petitioner had filed F.R.A. No,1123/2006 in the Court of learned District Judge, Karachi Central, which was transferred to Additional District Judge, who had dismissed the same by order dated 2-4-2007.
4. ' After dismissal of the appeal against the order passed under section 8 of S.R.P.O., the petitioner for the first time on 24-4-2007 had sent money order of Rs,14,450 to Mst. Shehnaz, which according to him was not accepted by Mst. Shehnaz. The learned Advocate for the petitioner stated that after the money was not accepted by money order, the petitioner had deposited the same in M.R.C.
5. No,582 of 2004, which was filed by the tenant in the year 2004 and he was depositing rent at the rate of Rs,150 per month in that M.R.C.
6. ' However, Mst. Shehnaz had filed ejectment application on 16-4-2007. The notice of the same was served upon the petitioner and date for filing written statement was fixed as 30-4-2007. Mst.
7. Shehnaz had filed an application under section 16 (1) of S.R.P.O. Along with ejectment application.
8. The case was fixed on 30-4-2007 for filing written statement. The petitioner had not filed any written statement and had sought time for filing written statement. Case was adjourned to 14-5- 2007, 21-5-2007 and 30-5-2007. On all the three dates no written statement was filed by the petitioner and he had been seeking adjournment.
9. ' The learned counsel for the petitioner says that petitioner had filed counter affidavit in reply to the application under section 16(1) of S.R.P.O. However, he concedes that no written statement was filed by the petitioner before the learned Rent Controller, who proceeded ex parte against the petitioner.
10. The respondent No,1 filed affidavit in ex parte proof and the learned Rent Controller by order dated 28-7-2007 had passed ejectment order. Against this order the petitioner had preferred appeal in the District Court, which was transferred to V Additional District Judge, Karachi, Central Mrs. Tasneem Sultana vide F.R.A. No,169 of 2007.. Mrs. Tasneem Sultana, learned Additional District Judge after hearing the parties and going through the pleading had framed following points for determination:--
1. Whether the impugned order dated 28-7-2007 is in the letter and spirit of provision of law as well as S.R.P.O., 1979?
2. Whether the impugned order requires interference of this Court?
3. What should the order be?
11. ' The learned appellate Court relied upon the case-law reported in 1992 MLD Page 1021, which is reproduced hereunder:-- ' "Default made by a tenant even for a short period of one month, whether technical or otherwise, could not be condoned unless there were extenuating circumstances justifying indulgence by Rent Controller. Tenant's evidence through affidavit-in-evidence was nullified by material contradictions contained therein. No reliable evidence was available before Rent Controller to show that tenant was himself willing to tender rent to landlord in time or that landlord had contributed towards default in payment of rent. Tenant was thus, liable to be evicted from demised premises for a technical default of a short period of one month."
12. ' I have heard both the counsel at length and have perused the record of both the Courts below, pleadings of the parties.
13. ' In the present case litigation had started on 23-12-2005, rent was enhanced on 20-2-2006 with retrospective effect i.e, from 1-12-2005. Legal notice was given by Mst. Shehnaz to the tenant on 15- 4-2006 thereafter the tenant had filed F.R.A. No,123 of 2006 challenging the order of fixation of fair rent. The appeal was dismissed on 2-4-2007. The tenant for the first time had sent fair rent along with arrears to the landlord on 24-4-2007 and upon refusal deposited the same in M.R.C. No,502 of 2004 on 27-4-2007. From the conduct of the tenant the default is clearly proved. The case-law quoted above clearly says that the default made by tenant even for a short period of one month, whether technical or otherwise could not be condoned, unless there were extenuating circumstances, justifying indulgence by Rent Controller. In the present case the Courts have been asking the tenant to deposit the rent right from 20-2-2006, but the tenant at his own whims and at his own interpretation of law had been withholding rent till 27-4-2007. There cannot be a better case of wilful default than the one in hand.
14. ' I hold that in the present case the petitioner has committed wilful default and the order of both the Courts below do not suffer from any illegality, infirmity and need no interference from this Court. Even otherwise when there is concurrent findings of Courts below the scope of the constitutional petition for interference in the B concurrent findings is very limited and it can only be interfered when the orders of the Courts below are fanciful or based on misreading or non-reading of the evidence. In the present case there is no such allegation and as such I uphold the orders of the Courts below and dismiss, this petition. However, since the rented premises is a shop, in the interest of justice I grant six months time to the tenant to handover the vacant and peaceful possession of the shop to the respondent. On expiry of six months period the learned Rent Controller will issue writ of possession without notice with police aid with order of breaking open the lock.
15. ' This order is subject to payment of rent as well as utility bills. In case of default the order will become operational from the date of default.
16. ' Constitutional petition stands disposed of.