' ANWAR ZAHEER JAMALI, J.---The petitioners, who are legal heirs of Muhammad Sharif, the original tenant of Shops Nos. 14-15, Mumtaz Cloth Market, Liaquatabad, Karachi, have preferred this Constitutional Petition to assail the order dated 16-9-2004 passed by respondent No,1 (Vth Additional District Judge (Central) Karachi) in F.R.A. No,82 of 2002, whereby she allowed the appeal and consequently ordered eviction of the petitioners from the rented shops on the ground of default in the payment of rent.
2. Relevant facts gathered from the case record are that on 25-2-1996 respondents Nos.3 (i) to (ix) legal heirs of (Haji Ehsanuddin) filed ejectment application No,100 of 1996 against the A predecessor-in-interest of the petitioners (Muhammad Sharif), seeking his eviction from the two rented shops on the sole ground of default in the payment of rent from September, 1995. Their further case, as regards default, was that each of the two shops was on rent with the predecessor- ininterest of the petitioners at the rate of Rs,200 per month but he was not regular in the payment of rent and had failed to make payment of rent from September, 1995 onwards.
3. In his written statement submitted in Court on 10th September, 1996,opponents/petitioners predecessor-in- interest, pleaded payment of rent in cash to the landlord for the disputed period from September, 1995 upto May, 1996 by way of payment of Rs,1,600 on 5-9-1995 and Rs,1,000 on 10-2-1996. He further stated remittance of Rs,800 through money-order dated 7-7-1996 as rent for the months of June and July, 1996 and subsequent deposit of rent vide Miscellaneous R.C. NO.426 of 1996, in Court.
4. At the stage of evidence, respondents No,3(v) & (vii) filed their affidavits-in-evidence, reiterating the facts stated in the rent application, thereby showing commission of default by the petitioners predecessor from the month of September, 1995. They were cross-examined by the other side counsel but with no material outcome in favour of tenant. Thereafter from the side of the petitioners, petitioner No,4 (Muhammad Irfan) filed his affidavit-in-evidence. He also reiterated the same facts as stated in the written statement and in his cross-examination conceded that no rent receipt regarding alleged payment of rent in cash for the months of September, 1995 onwards was available.
5. The Rent Controller/respondent No,2 after perusal of evidence adduced by the parties came to the conclusion that no default in the payment of rent was committed, for the reason that admittedly in the past, private respondents had received rent from the predecessor-in-interest of the petitioners in lump sum. The rent application was accordingly dismissed.
'Contrary to it the Appellate Court/respondent No,1 after taking into consideration the evidence available on record found that the petitioners predecessor-in-interest was defaulter in the payment or rent, consequently order of Rent Controller was set aside, the appeal was allowed and eviction of petitioners was ordered.
6. Ms. Kausar Amin learned counsel for the petitioners repeatedly made reference to the plea of the petitioners that in the past private respondents had been , receiving rent in lump sum from their tenant, as detailed in Para-4 of the written statement. She contended that by acceptance of rent in cash from the predecessor-in-interest of the Petitioner for the period, from September, 1995 to February, 1996, without issuance of rent receipt, he was trapped as defaulter in the payment of rent for these months, therefore, the eviction order should not have been,passed against him. She further made reference to the petitioner's application under section 10(3) of the Sindh Rented Premises Ordinance, 1979 filed on 7-8-1996 to show that since thereafter the petitioners were regularly depositing rent in Court, thus there was no default in the payment of rent, as alleged by the private respondents.
7. Ms. Kausar Amin also made reference to the newly-added proviso to clause (ii) in section 15(2) of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) and contended that since the period of alleged default committed by the petitioner's predecessor was less than six months, therefore, the learned Rent Controller should have taken into consideration such amendment for condonation of default in the payment of rent.
8. Mr. Shaikh Abdul Majeed learned counsel for the private respondents, vehemently contended that default in the payment of rent was defendant on the false allegation of non-issuance of rent receipt, which was rightly not accepted by the appellant Court/Respondent No,1 thus the ejectment order passed by appellate Court, needs no interference from this Court in exercise of its Constitutional jurisdiction under Article 199 of the Constitution.
9. Replying to the plea of extending benefit of newly added proviso to clause (ii) in section 15(2) of the Ordinance, which came into force w.e.f, 17th April, 2001, he contended that it could have been made applicable only in case commission of default by the petitioners' predecessor was less than six months, while in the present case after commission of default in the payment of rent from September, 1995, rent was allegedly remitted to the private respondents/landlords for the first time on 7-7-1996 through money order, that too for only two months. Thus the actual period of default was more than six months and the benefit of such amendment could not have been extended to the petitioner.
10. I have carefully considered the arguments advanced by the parties' counsel and perused the material placed on record. The plea of payment of rent by the predecessor-in-interest of the petitioners for the period from September, 1995 to May, 1996 in cash, was not sustainable in law in view of the categorical statements of two of the private respondents, who had appeared in the witness-box to deny such assertion. Even the assertion of petitioners predecessor in the written statement, also repeated by petitioner No,4 in his affidavit- C in-evidence, regarding cash payment of Rs,1,000 on 10-2-1996 as rent from January, 1996 to May, 1996 (Five Months) is not reconcilable with the admitted rate of rent, which was Rs,400 per month for two shops i.e, Rs,2,000 for five months. Further indulgence shown by the landlord in the past by way of acceptance of rent in lump sum on some occasion will not in any manner wipe out the consequences of default in the payment of rent, once committed. If any case-law is needed to fortify this view, reference can be made to the following cases:---
(1) Muhammad Alam v. Noor Muhammad (1973 SCMR 606).
(2) Dr. Syed Waris Ali Tirmizi v. Mst. Liaquat Begum (1980 SCMR 601)
(3) Alif Din v. Khadim Hussain (1980 SCMR 767).
(4) Mrs. Aleema Ahmed v. Amir Ali (PLD 1984 SC 32).
(5) Muhammad Alimullah v. Ziaul Islam (PLD 1973 Karachi 56).
' Thus, the findings of the appellate Court that the petitioners predecessor committed default in the payment of rent D from September, 1995 onwards, though not well-discussed, are correct both on facts and law, and require no interference.
11. As regards the other plea of the petitioners with reference to the newly-added proviso to clause
(ii) in section 15(2) of the Ordinance, it has also no force for the reason that the petitioners, despite filing of rent case by the private respondents on 25-2-1996, neither remitted rent through money order allegedly before 7-7-1996 nor deposited it in the office of Rent Controller before 7-8-1996, when application under section 10(3) of the Ordinance, was moved by the predecessor of the petitioners. In such circumstances, obviously the actual period of default, when calculated from September, 1995 was more than six months, which had disentitled the petitioners from the benefit of proviso to clause (ii) in section 15(2) ibid, subsequently added in Ordinance, by way of (Sindh) amending Ordinance XIV of 2001.
12. Besides, there is no misreading of evidence in the order of the, Appellate Court while allowing ejectment application of the private respondents on the ground of default in the payment of rent.
Even otherwise, mere reappraisal of evidence, to see whether any other view was also F possible, is not the purpose of exercise of Constitutional jurisdiction by this Court in such cases. (See Messrs Mehraj (Pvt.) F Limited v. Miss Laima Saeed 2003 MLD 1033).
13. For the foregoing reasons, I find no substance in this petition, which is accordingly dismissed along with listed application.