' SALMAN ANSARI, J.---This constitutional petition has been filed by the petitioner above named who being aggrieved and dissatisfied with the judgment, dated 5-7-2005 passed by the learned District Judge, Karachi (East) whereby F.R.A. No,178 of 2004 was dismissed and also against the order, dated' 30-7-2004 passed by the learned IInd Senior Civil Judge and Rent Controller Karachi (East) whereby ejectment of the petitioner from the tenement in question was ordered.
2. The petitioner's case is that he is tenant of two flats being Flat No,1 and Flat No,2, 7-F, (Commercial), Fatima Jinnah Road, Muhammad Ali Housing Society, Karachi on a monthly rent of Rs,5,100 (Rs,2,625 + Rs,2,475). That a tenancy agreement had been entered into on 6-4-1981, thereafter due to cordial relations the rent of the flat was enhanced to as shown above. The landlady used to collect the rent according to her convenience, at the inception of the tenancy three month rent was paid in advance beside the monthly rent, that after collecting the rent for June, 1995 the Respondent No, 1/landlady did not come to collect the rent till December, 1995 it was the practice of the respondent No,1 to collect the accumulated Rent in lump sum according to her own convenience, on 18-12-2005 a notice was received alleging that the petitioner had committed default for non-payment of rent with effect from 1-7-1995 to 1-12-1995 (five months) and 49% water and conservancy charges and in the notice the petitioner was asked to vacate the tenement. In this reply, dated 11-1-1996 a cheque was also sent for Rs,30,600 being rent of 6 months with effect from 1-7-1995 to 31-12-1995 which was duly encased by the respondent No,
1. That the rent of the flats was also sent for the month of January, 1996 through Money Order which was refused, the petitioner filed MRC No,132 of 1996 in the Court of learned IIIrd Senior Civil Judge and Rent Controller, Karachi-East and started depositing rent with effect from January, 1996. That the respondent No,1 filed Rent case No,64 of 1996 on 4-2-1996 for ejectment on the grounds of default in the payment of rent with effect from 1-7-1995 to 31-12-1995 and for non-payment of rent for the month of January, 1996 and default in payment of 49% of water charges for the year, 1995-96, the premises were also required for personal need of the respondent No,1 and on the ground of alleged impairing the value of the demised premises. That the learned Rent Controller arriving at the conclusion that the petitioner/opponent had committed wilful default in the payment of rent and had violated the terms and conditions of the Tenancy Agreement hence ordered the ejectment of the petitioner within 60 days. The learned Rent Controller has also decided that as the petitioner/opponent had made alteration and additions in the demised premises without any permission from the landlady hence the point was decided in the affirmative.
3. The appellate Court in F.R.A. No,178 of 2004 concluded that the appellant/petitioner had committed default in the payment of monthly rent as well as water charges, hence the appeal was dismissed, but on the point of damages caused to the demised premises the point was decided in the negative, hence this petition.
4. Learned counsel for the petitioner had argued that it was the practice of respondent No,1 to collect the rent at her own convenience from the very beginning of the tenancy this practice was followed whereby accumulated rent was paid at different periods and received as such by the respondent No,1. Even in the period from July, 1995 up to December, 1995, the cheque amount of Rs,30,600 was received by the respondent No,1 hence there is no wilful default committed by the respondent No, 1.
5. Placing reliance upon 1998 MLD 1506 (Karachi) (Abbas Muhammad Ali and others v. Muhammad Shafi Puri), in which specific plea had been taken in the written statement that landlord accepted rent periodically default committed was found not wilful and intentional, direction was exercised in favour of the tenant, 1989 SCMR 403 (Taher Ali and 2 others v. Messrs Sh. Miran Bux, Karam Bux and another), wherein the Honourable Supreme Court decided that where payment of rent on yearly basis was proved such petition was dismissed, 1992 CLC 1652 (Karachi) (Sheikh Anisur Rehman v.
Muhammad Umer) where rent sent by Money Order in time was refused no default was found to have been committed by the tenant, in the same citation where on the share of the consumption of gas charges actual share of tenant was not proved and findings of default were not found to be sustainable. In PLD 1995 Karachi 361 (Pervaiz Anwar Sajjad v. Ali Muhammad Rashid Fazal Trust), where no agreement was fixed for payment of rent deposited after every quarter would not entail penal consequences, PLD 1994 Karachi 209 (Mst. Zohra Bai and another v. Messrs Standard Industries Ltd.), where the landlord accepting rent in lump sum without protest the finding that even if default in payment was proved the Rent Controller had discretion not to order eviction.
6. Learned counsel for the respondent No,1 has argued that two Courts below had decided the Issue of rent in favour of the respondent No,1 and the concurrent finding on the point of default would not be challenged in a writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan. Placing reliance upon 1997 CLC 363 (Peshawar) (Muhammad Humayun and others v.
Member Board of Revenue and others), where it was held that High Court ordinarily would not review findings of facts reached by the Courts/Tribunals below even if same was erroneous Court which has jurisdiction over subject-matter, has jurisdiction to decide the same rightly or wrongly.
High Court in exercise of its Constitutional jurisdiction only acts in its supervisory capacity and not as Appellate Court". Reliance is placed upon 2003 MLD 1033 (Messrs Mehraj (Pvt.) Ltd. v. Miss Laima Saeed and others) PLD 2004 Kar. 502 (Hafiz Shafatullah v. Mst. Shamim Jehan and another), PLD 1981 246 (Muhammad Shafif v. Muhammad Afzal Sohail), PLD 2001 Supreme Court 415 (Secretary to Government of Punjab v. Ghulam Nabi and 3 others).
7. Learned counsel has contended that the amount of rent for the month of July, 1995 upto December, 1995 admittedly paid after a notice was sent to the petitioner on 18-12-1995, thereafter in his reply, dated 11-1-1996 the cheque amounting to Rs,30,600 was received in protest and this default was admitted by the petitioner and also has been admitted in the contents of the present petition and the reasons given being that accumulated rent for the months together was collected by the respondent No,1 at her own convenience. Learned counsel has relied upon 1990 SCMR 1327 (Amir Ali and others v. Messrs Burma Oil Mills Ltd.), 1989 CLC 639 (Karachi) (Mrs. Mumtaz Sultana Begum v. Mrs. Ishrat Jehan).
8. The learned counsel has further argued that both the lower Courts had given concurrent findings on the point of default which findings could not be disturbed in this petition and this petition is liable to be dismissed accordingly.
9. Thus having heard the arguments of the learned counsel for the petitioner and respondent No,1 in this matter, the tenancy has been initiated on the basis of a Tenancy Agreement in which period of payment of rent was fixed and the practice of payment of accumulated rent was not condoned by the respondent No,1 as can be read from the evidence and it is the duty of tenant to ensure payment of rent on the terms and conditions and act upon them, the failure in compliance of the terms and conditions of the rent agreement would be under the circumstances upon the tenant where he has admitted that the landlady collected rent at her convenience, it is not the convenience of the landlady but the duty of the tenant to make payment within time and by his non-compliance make it a practice of payment of accumulated rent which as found in the present case to have been not at the convenience but at the inconvenience of respondent No, 1 . The findings of the learned Rent Controller:--- "In my bumble view the opponent has failed to produce any piece of evidence which can lead the Court to the conclusion that he had paid the rent to the landlady in time. Furthermore Opponent Attorney has admitted in her cross-examination that he has failed to pay the water charges to the applicant."
' Thereafter Appellate Court came to the conclusion:--- "It may be observed that it has been held in number of cases by Honourable Supreme Court of Pakistan that payment of accumulated rent by the tenant in violation of the terms and conditions of the rent agreement is not a valid tender and the tenant is liable for the adverse consequences if such rent is paid. Suffice is to rely in this regard on Amir Ali's case supra (1990 SCMR 1327). It has been held in unequivocal terms that merely because the landlord had in the past condoned the non-payment of rent unless the same was the result of an agreement and representation on his part was no ground for condoning the default of tenant by the Court. It has also been held that the tenant is obliged to pay the rent within the stipulated time and landlord was not supposed to go after the tenant demanding the rent. The case-law relied upon by the learned counsel for the appellant in this regard is also not contrary to the above principles. As in Tahir Ali case (1989 SCMR 403) the practice of payment of annual rent was proved through tangible evidence by production of such rent receipt whereby in the present case since inception of the tenancy in 1984 only on few occasion such rent was accepted. Besides this it is an admitted fact that the rent was to be paid on monthly basis by 10th of each month as mentioned in para. 2 of the application which was not disputed by the Appellant in his written statement.
' Apart from this, it is also an admitted fact that the Appellant was under obligation to pay 49% of the water charges which had not been paid by him for the year, 1995-96 and no attempt in this regard was also made. The default committed by the Appellant has therefore been proved by the respondent and finding of the learned Rent Controller cannot be interfered."
10. That in 1989 CLC 639 (Karachi) it was held that where tenancy agreement stipulated payment of rent by certain date rent would become due within grace period of 15 days from said date. Tenant admittedly making payment long after due date hence default was established. 1990 SCMR 1327, on which the learned Appellate Court has relied upon mere condonation of the landlord for non- payment of rent unless found to be on the basis of an agreement the party could not contract themselves out of the provisions of the Ordinance nor can plead a practice which was contrary to the Ordinance and it was held that merely because the landlord accepted the late payment of rent on number of occasions "cannot be said to have given rise to any practice whittling down the requirement of law that the rent has to be paid by the tenant by fifteenth of every month. Tenant was thus is bound to pay rent at the expiry of every month of tenancy".
11. Hence in my opinion with due respect to the case-law cited by the learned counsel for the petitioner the lump sum payment was not accepted by the landlady in this case without protest which was only due to the circumstances in which the petitioner had put the landlady into that she at that time accepted the lump sum of rent, this practice was never acknowledged by the landlady and eventually she refused to accept the rent which were thereafter tendered only on receiving the notice given by the respondent No,1 for the period from July, 1995 to December, 1995 which if seen in the light of the case-law relied upon by the counsel for respondent No,1 that tenant could not by practice make payment of accumulated rent as the terms of payment of rent accepted by the landlady I do not find any reasons for interfering with the findings of the two Courts below and the decision of the learned appellate Court requires no interference on the point that the petitioner had committed default in payment of rent.
12. That the learned counsel for the respondent No,1 had further argued that the High Court cannot interfere in its constitutional jurisdiction on disputed question of facts, placing reliance upon PLD 2001 Supreme Court 415 where it was held- that "Forums available in the hierarchy under the relevant law had decided all the controversial questions on the basis of record and in accordance with law." High Court could not go into disputed questions of fact in exercise of its constitutional jurisdiction. In PLD 1981 SC 246 it was held "Merely because another conclusion could be arrived at from evidence, would not make it case of interference under Art. 199". In PLD 2004 Kar. 502, it was held, "the legislature in it 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." In and 2003 MLD 1033, it was held that; "By conferring only one right of appeal, under section 21 of Sindh Rented Premises Ordinance, 1979. The Legislature tried to shorten the span of litigation in rent case. 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."
13. Hence in view of the case-law cited above on the issue whether the High Court could interfere in a matter where there are concurrent findings of the two Courts, constitutional jurisdiction of High Court should not be excised in the present case where the Courts having jurisdiction over subject matter have arrived at their respective judgments in which all the controversial questions were decided on the basis of the record and in accordance with law. High Court could not under the circumstance go into disputed questions of fact in exercise of its constitutional jurisdiction, I find the lower Courts not to have acted without jurisdiction or failed to exercise its jurisdiction or act in excess of its jurisdiction.
14. This is with due respects to the case-law relied upon by the learned counsel for the petitioner which in view of the above discussion, the finding thereof found not applicable to facts and law applicable in the present case.
15. This petition stands dismissed accordingly.