1. ' SALMAN ANSARI, J.---The petitioner Muhammad Fayyaz being aggrieved and dissatisfied with the judgment, dated 15-9-2007 passed by the IInd Additional District Judge, Karachi East, in F.R.A. No, 137 of 2006 filed by the petitioner/appellant had dismissed the same and directed the petitioner to vacate the rented premises within 90 days from the date of said judgment, hence this petition. It is contended by the learned counsel for the petitioner that he was a tenant of Bungalow No,40-D, Block-2, PECHS Karachi, on a monthly rent of Rs,20,000 per month vide agreement, dated 15-9-2001.
2. The petitioner paid monthly rent up to February, 2005 but as the respondent resided abroad sometimes she herself received the rent and sometimes through her Rent Collector but the respondent had been demanding enhanced rent, hence the petitioner paid the amount of Rs,20,000 for the month of March 2005, but thereafter the respondent No,1 refused to receive the same, money-order was sent for the month of March, 2005 but the respondent refused to receive the same and the petitioner having no option the rent was started being deposited in MRC No, 60 of 2005 in the Court of IXth Rent Controller, East Karachi, whereby no default was committed. The Respondent No,1, filed a rent case and also filed application under section 16(1) of the Sindh Rented'
3. Premises Ordinance, 1979, on 26-2-2005 and the learned trial Court passed order on 19-11-2005 directing the petitioner to deposit arrears of rent from August, 2004 to November, 2005 and future rent since December, 2005 at the rate of Rs,20,000 per month on or before the 10th of each calendar month. According to the petitioner he complied with the order but on an application under section 16(2) of the SRPO, 1979, the trial Court passed its order, dated 31-5-2006, allowed the application and directed the petitioner to vacate the premises within 90 days from the date of the order. In the FRA filed, the order of the learned Rent Controller was up-held and the petitioner was directed to hand over the vacant possession of the premises within 90 days from the date of judgment 15-9-2007, hence the presence petition.
4. ' This petition was fixed for Katcha Peshi and after hearing of C.M.A. No,3439 of 2007 meanwhile pre- admission notice was issued to the respondents.
5. ' It is argued by the learned counsel for the petitioner that he has not committed any default.
6. During the course of arguments learned counsel for the petitioner has admitted that the rent due under section 16(1) of the SRPO, 1979 is by the 15th of the preceding month, hence no default was committed. The learned counsel has admitted that the rent for the month of January, 2006 was deposited on 16-1-2006 after a delay of 6 days for which he has filed an application for condonation of delay on the ground that there were Eid holidays from 10-1-2006 to 12-1-2006 and thereafter on the subsequent three days the circumstances were beyond the control of the petitioner. It was also admitted that inadvertently and by a bona fide mistake the appellant was ordered to deposit rent in Court by order, dated 19-11-2005 and he deposited the rent in MRC No, 60 of 2005 on 19-11-2005 and 10-12-2005. The learned counsel has relied upon 2006 CLC 524 (Rafiq Ahmed v. Anwar Ali and 2 others) in support of his contention that the default if any was due to an inadvertent error and bona fide mistake which should be condoned and the impugned order be set aside and the petitioner be provided an opportunity to put up his defence before the Rent Controller. The learned counsel also argued that he has never harassed the respondent in the payment of rent and had paid the rent as a tenant well within time and as agreed upon between the parties and by following the directions given by the lower Court.
7. ' The learned counsel for the respondent has argued that this petition is not maintainable as in rent matter only one appeal is allowed and no second appeal or revision is permissible, the jurisdiction of this Court under Article 199 of the Islamic Republic of Pakistan, cannot be converted into a jurisdiction to entertain second appeal or act as Revisional Court as the same would defeat the intention of legislature which has in its own wisdom confined the rent matters. Learned counsel has relied upon PLD 1981 SC 246 (Muhammad Sharif and another v. Muhammad Afzal Sohail etc. ,), 2003 MLD 480 (Saifullah v. Muhammad Bux and 2 others), 2003 MLD 1033 (Messrs Mehraj (Pvt.) Ltd. v. Miss Laima Saeed and others), PLD 2004 Kar. 502 (Hafiz Shafatullah v. Mst. Shamim Jan and another). He has further argued that unless the Court decides that it has jurisdiction only then can it pass an appropriate order, hence placing reliance upon 2003 CLC 416 (Kar.) (Messrs Muslim Commercial Bank Limited v. Tahir Edible Oil (Pvt.) Ltd., and others) and 2005 CLC 988 (Pesh.)
8. (Muhammad Afzal Khan v. Ali Akbar and others). It is further argued that questions of disputed facts involved in a matter cannot be gone into by the Court in its constitutional jurisdiction and even the evidence cannot be apprised or initiated unless there is an error of jurisdiction and in the present case there is no question of jurisdiction involved. Reliance is placed upon PLD 2001 SC 415 (Secretary Government of Punjab Forest Department v. Ghulam Nabi and 3 others). It is further argued that the learned Rent Controller had even not accepted the respondent and that admittedly pertaining to have been issued by the respondent and that admittedly the petitioner had committed default as he was directed to deposit the arrears and the future monthly rent within 30 days and future monthly rent by 10th of each calendar month in Rent Case 50/2005 and not in MRC No,6 of 2005 but the petitioner continued to deposit rent in MRC No 60 of 2005 and beyond the prescribed date which amounted to default in compliance of the Court order. Reliance was placed upon 1992 CLC 2499 (Kar.) (Muhammad Naeem v. Messrs Karimi Bidi Works), 1997 CLC 869 (Aftab Ahmed Khan v. Mst. Zab-un-Nisa and another), 2003 MLD 1033 (Messrs Mehraj (Pvt.) Ltd. v. Miss. Laima Saeed and others), 1984 CLC 3102 (Kar.) (Dr. Abdullah Ghangro v. Mst. Tahira Begum), 2004 SCMR 1453 SC (M.H. Mussadaq v. M. Zafar Iqbal and another), 2005 CLC 1318 (Kar.) (Messrs Bata Pakistan Limited v. Vth Addl.: District Judge, Karachi (S) and 14 others), PLD 2005 SC 34 (Mst.
9. Fatima Gul v. Malik Saeed Akhtar), PLD 2007 SC 504 (Safeer Travels (Pvt.) Ltd., v. Muhammad Khalid Shafi), 2008 CLC (Kar.) 1087 (Mst. Fauzia Irfan v. Mst. Sabeeha Ishrat and 2 others), 1986 CLC 550 (Kar.) (Sirajuddin v. Muhammad Usman), 1992 CLC 2276 (Kar.) (Farooq Hussain v. Muhammad Saleem Khan), 1997 CLC 221 (Kar.) (Messrs Paramount Linen v. Mst. Shagufta Muzaffar), 2007 YLR 2224 (Kar.) (Hotel Metropole (Pvt.) Ltd., v. IIIrd Additional District and Sessions Judge, - South Karachi), 1995 MLD 840 (Kar.) (Zubair Ahmed v. Syed Hassan Mehdi), 1999 MLD 3165 (Kar.) (Sher Muhammad v. Mrs. Qudisa Bano).
10. ' The learned counsel has concluded that in view of the case-law cited and the default committed by the petitioner, he had no right to approach this Court under its constitutional jurisdiction and being a default the order of the 1st Rent Controller, was fully in accordance with the law as laid down.
11. Having heard the learned counsel for the petitioner and the learned counsel for the respondent No,1 in this case learned Rent Controller had passed the order on an application under section 16(1) of the Sindh Rented Premises Ordinance, 1979 on 19-11-2005 and the opponent/petitioner was to deposit the arrests of rent from August, 2004 till November, 2005, i,e, 16 months of rent at the rate of Rs,20,000 per month. The total amounting to Rs,3,20,000 and after adjustment of Rs,1,00,000 which the opponent/petitioner had deposited in MRC No,60 of 2005, the balance amount being Rs,2,20,000 to be deposited in the Court within 30 days from the date of the order and the opponent/ petitioner was further directed to deposit future rent from December, 2005 at the rate of Rs,20,000 per month before the 10th of each calendar month. Thereafter the petitioner had deposited the rent on 10-12-2005 in MRC No,60 of 2005 which was in violation of the order of the Rent Controller and subsequently he deposited the arrears of Rs,2,00,000 instead of Rs,2,20,000 as directed till 19-12-2005 that being the last date of the prescribed period for the deposit of the rent in accordance with the order, dated 19-11-2005, subsequently the rent for the month of January, 2006 was admittedly deposited on 16-1-2006 after a delay of six days from the, date of the directions as given in the said order, hence on an application moved under section 16(2) SRPO, 1979, the defence of the opponent/petitioner was struck off with directions to the opponent to hand over the vacant peaceful possession of the demised premises to the applicant within 90 days from the date of the order, dated 31-5-2006. The learned counsel for the petitioner has argued that the rent according to the order under section 16(1) of the SPRO, 1979, 10th of the following month was the date on which rent was due, in my opinion such is not the interpretation of the provisions of section 16(1) of the SRPO, 1979 which provides as under:- "(16) Arrears of rent.---(1) Where a case for eviction of the tenant has been filed, the Controller shall, on application by the landlord and after such summary inquiry as he deems fit to make, determine the arrears of the rent due and order the tenant to deposit the same within such period as the Controller may fix in this behalf and further direct the tenant to deposit monthly rent regularly on or before the tenth of every month, until final disposal of the case."
12. ' And I also reproduce the provisions of subsection (2) as under:-- "(2) Where the tenant has failed to deposit the arrears of rent or to pay monthly rent under subsection (1), his defence shall be struck off and the landlord shall be put into possession of the premises within such period as may be specified by the Controller in the order made in this behalf."
13. ' Hence, the provisions of section 16(1) and (2) are different from the provisions of section 10 of the SRPO, 1979, section 10 of the Sindh Rented Premises Ordinance, 1979 provides:-- "(10) Payment of rent.---(1) The rent shall, in the absence of any date fixed in this behalf by mutual agreement between the landlord and tenant, be paid not later than the tenth of the month next following the months for which it is due."
14. ' Hence, the contention of the learned for the petitioner that the rent for January was due till the 10th of February, 2005 is misconceived and I find support from the citations referred to, where the default of even one day has not been condoned.
15. ' In 1999 MLD 3165 (Kar.) (Sher Muhammad v. Mrs. Qudisa Bano), it has been held as under:- "Even one default was sufficient to declare tenant wilful defaulter."
16. ' In 1995 MLD 840 (Kar) (Zubair Ahmed v. Syed Hasan Mehdi), it was held:-- "Once default in payment of rent of premises had been committed by tenant, same could not be erased by a subsequent payment of rent or of a property tax on his behalf,"
17. ' In 2007 YLR 2224 (Kar.) Hotel Metropole (Pvt.) Ltd., v. IIIRD Additional District and Sessions Judge, South Karachi and another), it has been held as under:-- "S. 16(2)---Tentative rent order--Deposit of rent amount by tenant by issuing cheque to landlord-- Validity--Such deposit would not be a valid tender and would not wash out effect of default at tenant's hand--Defence of tenant was struck off for non-compliance of tentative rent order"
18. ' In 1997 CLC 221 (Kar.) (Messrs Paramount Linen v. Mst. Shagufta Muzaffar), it has been held as under:-- '
19. "Tenant according to tentative rent order passed by Rent Controller was specifically directed to deposit arrears of rent within 6 days in the name of landlady after adjustment of rent earlier deposited by tenant in miscellaneous case and also to deposit future monthly rent in name of landlady, but tenant continued to deposit rent in earlier miscellaneous case---Tenant, in circumstances, had failed to comply with tentative rent order passed by Rent Controller and his defence was rightly struck off for non-compliance of tentative rent order."
20. ' In 1992 CLC (Kar.) 2276 (Farooq Hussain v. Muhammad Saleem Khan), it has been held as follows:- - "S. 16(1)(2) Striking off defence---Tenant instead of depositing according to consent tentative rent order, had deposited rent in a miscellaneous case where he was depositing rent previously--- Tenant who otherwise had violated tentative rent order admitted had failed to deposit rent for one month without any plausible explanation for such failure---Defence of tenant was rightly struck off in circumstances."
21. ' In 1986 CLC 550 (Kar.) (Sirajuddin v. Muhammad Usman) it has been held as under:-- ' Sections 16(1)(2) and 21(1)---Non-compliance of direction of Rent Controller---Effect---Tenant had been depositing rent in other miscellaneous rent case against directions of Rent Controller--- Tenant, held, committed default in complying with order passed under section 16(1) of Ordinance, 1979 in circumstances. "
22. ' In 2008 CLC 1087 (Kar.) (Mst. Fauzia Irfan v. Mst. Sabeeha Ishrat and 2 others), it has been held:- "Sections 15(2)(ii)(vii), 6(1)(2) and 21---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Ejectment of tenant on ground of default in payment of rent and personal bona fide need---Non-compliance of tentative rent order---Striking off defence---Tenant filed written statement and also filed application under section 16(1) of Sindh Rented Premises Ordinance, 1979, Rent Controller accepting said application passed tentative rent order directing tenant to deposit arrears of rent and also future rent---Tenant having failed to deposit the arrears, according to tentative rent order, landlord filed application under section 16(2) before Rent Controller for striking off defence of tenant for non-compliance of tentative rent order, which was allowed and defence of tenant was struck off---Validity---Under section 16(1) of Sindh Rented Premises Ordinance, 1979, Rent Controller had to make summary enquiry and pass tentative order directing the tenant to deposit arrears of rent as well as future rent---Tenant had failed to comply with tentative rent order, no illegality or irregularity was found in both the orders---Impugned orders were not passed without jurisdiction---Order passed by the Rent Controller being tentative in nature no evidence was required to be recorded for deciding the pleas taken by the tenant---In absence of any ground to interfere with the orders of the Courts below in exercise of constitutional jurisdiction, petition was dismissed."
23. ' In PLD 2007 SC 504 (Safeer Travels (Pvt.) Ltd. v. Muhammad Khalid Shafi) it has been held as under:-- "Failure of tenant to comply with the tentative rent order of Rent Controller---Effect---Use of word "shall" had made obligatory for Rent Controller that in case of default, defence of tenant would have to be struck off---Once default was committed, then Rent Controller would have no jurisdiction and option, but to struck off defence of tenant".
24. "Article 199---Constitutional jurisdiction of High Court--ScopeJudgment/order of Appellate Court-- -High Court could interfere with such judgment/order if view taken by Appellate Court was not only contrary to established principles of law, but was also contrary to evidence on record or had flouted provisions of statutes or failed to follow law relating thereto."
25. ' In 2004 SCMR 1453 S.S. (M.H. Mussadaq v. Muhammad Zafar Iqbal and another) it has been held:-- "Section 17(9)---Constitution of Pakistan (1973), Art. 185(3)--- "Default"---Striking off defence.
26. Tentative rent order, noncompliance of--Default of few days in deposit of tentative rent--- Rent Controller passed tentative rent order and directed the tenant to deposit the same within specified period---Tenant deposited the rent with a delay of three days in first month and with a delay of ten days in subsequent month---Rent Controller struck off the defence of the tenant and passed eviction order--Validity---If the tenant failed to deposit the amount of rent before specified date, or, as the case may be, before 5th of each month, then under section 17(9) of Cantonments Rent Restriction Act, 1963, his defence would be struck off---Even one day's delay in making the deposit would be default within the meaning of section 17(9) of Cantonment Rent Restriction Act, 1963, as the same was mandatory in nature and Rent Controller had no power to extend time and condone the delay---Tentative rent order could be passed by the Rent Controller even if ground of default was not alleged for seeking eviction---Noncompliance with the tentative rent order was directly punishable and on consequence the defence of tenant could be struck off and eviction could be ordered---Supreme Court maintained the eviction order passed by the Rent Controller---Leave to appeal was refused."
27. In 1984 CLC 3102 (Dr. Abdullah Ghangro v. Mst. Tahira Begum) it has been held as under:-- "Section 16(2) Ejectment---Defence, striking off---Tenant depositing rent in miscellaneous application despite order passed by Rent Controller for deposit of rent in rent case---Order of Rent Controller, held, not complied with Deposit of rent in miscellaneous application not substantiated-- -Defence of tenant struck off in circumstances."
28. ' After the order passed in Rent Case No,50/2005 and subsequently had made payment of rent of January, 2006 on 16-1-2006 six days after the period due, for which learned counsel for the petitioner had tried to explain that because of Eid, he could not deposit by the 10th and even if so accepted he yet had three days for which no plausible explanation was provided and the learned counsel for the petitioner has contended that according to him the rent of the premises after passing of the tentative rent order was to be paid before the 10th of the subsequent month as provided in section 10 of the SRPO and not on or before the 10th of each calendar month. I therefore, find that the petitioner had violated the directions of the learned Rent Controller and hence there is no defect in the order passed subsequently under section 16(2) of the SPRO, 1979, whereby the defence of the petitioner was struck off by the learned Rent Controller. Subsequently in FRA No,137 of 2006 the learned Appease Court has upheld the order of the Rent Controller wherein he has held that:-- "The Nazir report, dated 31,5-2006 available on application under section 16(2) of the Sindh Rented Premises Ordinance, 1979 reveals that the appellant from 17-12-2005 up to 19-12-2005 the appellant deposited Rs,200,000 instead of Rs,220,000 as directed him vide order, dated 19-11-2005. He also deposited the rent for the month of January, 2006 on 16-1-2006 after delay of 6 days for which he filed application for condonation of delay on the ground that there were Eid Holidays from 10-1- 2006 to 12-1-2006 and thereafter on three days circumstances were beyond the control of opponent. It is also an admitted position that in the order, dated 19-11-2005 the appellant was directed to deposit the rent in Rent Case but in spite of clear direction he deposit rent in MRC with plea that due to bona fide he deposited on 19-11-2005 and 10-12-2005 in MRC. The appellant has violated the order, dated 19-11-2005 and he has failed to give any plausible explanation regarding delay in deposit on rent, as well as deposit of rent in MRC instead of Rent Case. He also failed to deposit Rs,220,000 within the stipulated period, therefore, the learned Rent Controller rightly struck off the defence of the Appellant. The facts of case-law relied upon by the advocate for the appellant are distinguished from the facts of the instant case, hence are not applicable."
29. In PLD 1981 SC 246 (Muhammad Sharif and another v. Muhammad Afzal Sohail), wherein it was held as under:-- "The writ petitions are argued before the High Court as if they are regular second appeals and we notice that the learned Judge of the High Court take great pains to reappraise the evidence and to consider each and every contention raised by the petitioner's side before deciding the petition without realizing that, more often than not such petitions are merely a device to circumvent the amendment in the law and defeat the obvious intention of the Legislature, namely, and speedy determination of case under the Urban Rent Restriction Ordinance. Such frivolous applications not only cause the poor litigants to incur necessary expenditure but also result in the waste of valuable public time and should, therefore, be discouraged by the High Court. It has been repeatedly held that a Tribunal having jurisdiction to decide the matter is competent to decide it rightly or wrongly and the mere fact that another conclusion could be arrived at from the evidence does not make it a case for interference in the exercise of its constitutional jurisdiction.
30. ' In our view the jurisdiction of the High Court to interfere in matters of the kind involved in the present case is a very limited one and confined only to ascertaining whether the District Judge has not flouted the provisions of the relevant statute or has failed to follow the law relating thereto as laid down by the superior Court."
31. ' Hence in my opinion this Court cannot interfere in matters where the two lower Courts have given concurrent findings against the petitioner.
32. ' In 2003 MLD 1033 (Messrs Mehraj (Pvt.) Ltd., v. Miss. Laima Saeed and others), his lordship the learned Chief Justice, Sindh High Court, held as under:-- "Constitution of Islamic Republic of Pakistan, 1973, Article 199--By conferring only one right of appeal, under section 21 of Sindh Rented Premises Ordinance, 1979, the Legislators tried to shorten the span of litigation in rent cases--Exercise of constitutional jurisdiction under Article 199 in such cases merely on the ground that another view of the matter is also possible--Would defeat the spirit and object of the statute."
33. ' In PLD 2004 Kar. 502 (Hafiz Shafatullah v. Mst. Shamim Jahan and another), it has been held, "the legislature in its wisdom seems to have tried to shorten the span of litigation in rent cases--- generally, the interference in the orders passed by the tribunals is not called for."
34. ' In 2003 MLD 480 (Kar.) (Saifullah v. Muhammad Bux and 2 others) it has been held that:-- "Section 18---Constitution of Pakistan (1973), Art. 199--- Constitutional petition---Maintainability--- Contention of the petitioner was that both the Courts of Rent Controller and the District Judge had not properly appreciated the evidence--- ' Validity---Question pertaining to application of facts could not be resorted to, in exercise of Constitutional Jurisdiction by High Court, for the simple reason that in doing so the Constitutional petition shall be converted into a revision or second appeal and restricting the finality pertaining to the rent matters to first appeal shall stand frustrated---Constitution petition being not a substitute either for revision or the second appeal, Constitution petition shall be entertained if a case was made out to the effect that the Rent Controller and First Appellate Authority had made an error palpably without jurisdiction or there was case of lack of jurisdiction or the finding was so perverse that it was not sustainable on the established principles of the appreciation of evidence, or any specific provisions of law had been violated---Constitutional petition, in rent matters and in all such cases in which no second appeal or revision was provided in law, shall not be entertained, until and unless there was a jurisdictional error committed by the Court below."
35. ' In view of the above discussion and the case-law cited, I find that the impugned order requires no interference and this petition is dismissed accordingly.