1. ' BIN YAMIN, J.---This order will dispose of Constitution Petition, filed by Mst. Shagufta Saeed wife of Saeed-ulHassan against Khalid Aziz Lodhi son of Azizur Rehman and others.
2. ' Brief facts of the case are that petitioner is owner and landlady of Shop No,1, constructed on Plot No, C-53, Block-13, Federal B-Area, Karachi. The respondent No,1 is tenant in respect of that shop at monthly rent of Rs,300 as per agreement dated 12-1-1985. As per terms of the agreement, the respondent No,1 is required to pay monthly rent in advance on or before 5th of each English calendar month. That respondent No,1 lastly paid rent for June 1991 to August, 1991 on 12-10-1991 after committing default and thereafter he failed to pay monthly rent in spite of demand by the petitioner. That subsequently, the petitioner came to know that respondent No,1 is depositing monthly rent in M.R.C. No,267/1999 but on making inquires the petitioner came to know that respondent No,1 is depositing monthly rent w.e.f, March, 1991, thus he failed to pay the rent of 75 months i.e, September 1991 to February, 1999. It is also alleged that the respondent No,1 started depositing rent in the name of some other person without notice to the petitioner or her attorney.
3. That respondent No,1 is a habitual defaulter in payment of rent and is also irregular in depositing the rent in Court. He has also sub-let the shop to one Taj Muhammad without written permission of the petitioner or her attorney. That a legal notice on 10-12-2003 through TCS was sent to respondent No,1 but in spite of service of the same, he failed to pay the rent or vacate the shop.
4. Therefore, another notice dated 20-7-2004 was sent to the respondent No,1 to which he gave an evasive reply through his advocate. That the petitioner filed Rent Case No,598/2004 in the Court of IVth Rent Controller, Karachi Central against respondent No,1, who filed his written statement and denied the execution of tenancy agreement dated 12-1-1985 and further took the plea that the said agreement was in respect of another shop which he has already vacated. The respondent No, 1 denied the default in payment of rent on the ground that he used to pay rent to the attorney of the petitioner and thereafter he used to pay the same to Naveed Kausar and Nadeem Kausar.
5. However, he failed to produce any rent receipt in this regard. That after proceeding with the rent application of the petitioner, the learned Rent Controller allowed the same on 25-9-2006 with the direction to respondent No,1 to vacate the premises and hand over its vacant possession to the petitioner within sixty days.
6. ' Feeling aggrieved with the order of the learned Rent Controller, respondent No, 1 filed F.R.A. No,241 or 2006 in the Court of District Judge, Karachi Central who transferred the same to 1ST. Addl. District Judge, Karachi Central for its disposal according to law. The learned 1st. Addl. District Judge Karachi Central, allowed the appeal and set aside the order of the learned Rent Controller, vide his order dated 7-3-2007.
7. ' Feeling aggrieved with the order of the learned Appellate Court, the petitioner has filed instant Constitution Petition with the prayer that the order dated 7-3-2007, passed by the learned 1st Addl.
8. District Judge, Karachi Central may be set aside and the order of the learned rent Controller may be maintained.
9. ' After filing of this petition, it was ordered by the Court on 17-8-2007, that a pre-admission notice be issued to the respondents.
10. ' Mr. K.A. Wahab, Advocate filed Vakalatnama on behalf of respondent No,1, whereas, respondents Nos. 2 and 3 remained absent from the Court in spite of service of notice.
11. ' Heard learned counsel for petitioner as well as for respondent No,1 and perused case papers.
12. ' Learned counsel for the petitioner submitted that the petitioner had proved her case before the learned Rent Controller on the point of default in payment of rent, therefore the learned Rent Controller was pleased to allow ejectment application through his order dated 25-9-2006. That the order passed by the learned Rent Controller was on merits of the case and quite legal, therefore, the same does not require any interference by the Appellant Court. That the learned 1st. Appellate Court without taking into consideration the material facts and evidence of the parties brought on the record. Allowed the Appeal, thus, the learned 1st Appellate Court has committed error of non- reading and misreading of the evidence brought on the record, therefore, the order passed by the 1st. Appellate Court dated 7-3-2007 is not maintainable and the same is liable to be set aside and order of the learned Rent Controller may be maintained. While continuing with his arguments, the learned counsel submitted that when the tenant committed default in payment of rent he was served with a notice dated 20-7-2004 through advocate. That the certified true copy of said notice is available on the record at page 131. That the learned counsel for the petitioner had clearly stated in para.1 of the said notice that respondent No,1 is tenant of the petitioner under tenancy agreement dated 12-1-1985. That Mr. Qamar Muhammad Khan, advocate who gave reply of the notice on behalf of the respondent No,1 has clearly admitted in para.1 of his reply that contents of para.1 of the notice are admitted; thus there is admission on the part of the respondent No,1, that he is tenant of the petitioner under written tenancy agreement dated 12-1-1985, that as per clause 1 of the Rent Agreement dated 12-1-1985, the respondent No,1 is required to pay rent of the premises in question latest by 6th of each English Calendar month. He further submitted that in para.3 of the application the petitioner has stated that the respondent No,1 after 12-10-1991 failed to pay the rent and thus committed default in payment of rent that the certified true copy of the rent application filed by the petitioner is available at pages 33 to 39. That in reply to para. 3, the respondent No,1 has claimed that he used to pay rent to the attorney of the petitioner, namely Wajih-ul-Hasan and thereafter he used to pay the rent of the premises Naveed Kasur and Nadeem Kauser and paid the same upto February 1999. That thereafter, said Naveed Kauser and Nadeem Kauser refused to accept the rent. That thereafter he sent the rent for two months through money order but the same was refused. Thereafter he started depositing rent in Court in MRC No,267/1999. The learned counsel for the petitioner submitted that though it is claimed by the respondent No,1 that he used to pay rent to the petitioner through Naveed Kauser and Nadeem Kausar but except his oral words nothing in the shape of rent receipt or evidence of any person is brought on the record to show that actually rent was ever paid to Naveed Kauser and Nadeem Kauser. The learned counsel further contended that in his cross-examination, the respondent No,1 was specifically asked that since September 1991 till today, neither the applicant nor her attorney Wajih-ul-Hassan has issued him any notice or letter to pay the rent to Nadeem Kauser. That he admitted that he did not receive any notice or payment or rent to Nadeem Kauser and Naveed Kauser. He admitted that he has not produced any receipt issued by Nadeem Kauser from September 1991 to onwards on the record. He also admitted that on 20-7-2004.The attorney of the petitioner had sent him a legal notice, to which he replied through his counsel Mr. Qamar Muhammad Khan, advocate. He also admitted in para. 7 of the written Statement, the service of notice upon him. That the petitioner has claimed that respondent No,1 failed to pay her rent w.e.f, September, 1991 to February 1999 was upon the respondent No,1 but he completely failed to discharge the same by neither examining any independent witness/person on this point nor producing any receipt in this regard. That, furthermore the respondent No,1 in his cross-examination has clearly admitted that neither the petitioner nor her attorney had ever informed him to pay the rent of the premises to Nadeem Kausar and Naveed Kauser, thus the question of payment of rent to said persons without any instructions from the petitioner or his counsel does not arise. That this plea has simply been taken by the respondent No,1 to avoid the fact of the default in payment of rent and to usurp the rental amount of the petitioner. That in this regards, the observations of the learned 1st. Appellate Court that in the absence of proof of default by the landlady, the contention of respondent No,1 that he paid the rent of the same to the landlady cannot be discarded, is un-justified and in violation of the principles of the Qanoon-e-Shahadat Order, 1984. That as it was the respondent No,1 who claimed that he paid rent w.e.f, September, 1991 to February 1999, therefore burden of proof was upon him but he failed to discharge the same. Thus, the order of the learned 1st. Appellate Court is based on misreading of the evidence and misapplication of the provisions of the law applicable to this case.
13. He, therefore, requested for grant of this Constitution Petition and to set aside the order dated 7-3- 2007, passed by learned 1st. Addl. District Judge, Karachi Central and further to maintain the order dated 25-9-2008 passed by the learned IVth, Sr. Civil Judge and Rent Controller, Karachi Central.
14. ' On the other hand, learned counsel for the respondent No,1 has contended that respondent No,2 in his evidence has stated that the notice which was replied by this advocate Mr. Qamar Muhammad Khan was in violation of his instructions and that he has deposed the actual position of the case in Court. That he is tenant of the premises prior to 1985, that the petitioner has claimed that the respondent No,1 has failed to tender rent for 75, months but it does not appeal to the common sense that the landlady will remain silent for this much period and thereafter call upon the tenant to pay her rent the premises. That in this regard the version or the respondent No,1 that he paid rent to Nadeem Kauser and Naveed Kauser is correct one and is liable to be accepted. That the order of the 1st. Appellate Court in the circumstances of the case is appropriate one and does not require any interference. He, therefore, requested for dismissal of this Constitution petition.
15. ' I have considered the contentions raised at bar and have gone through the material available on the record.
16. It is an admitted fact that the claim of the petitioner that the tenancy in this case has started on the basis of rent agreement date 12-1-1985, executed in between the parties. This fact at the initial stage was admitted by the respondent No,1 at the time of reply given by his advocate.
17. ' However, the respondent No,1 subsequently during the course of proceedings denied the execution of rent agreement and claimed that he is in possession of the premises prior to 1985. This denial on the part of the respondent No,1, appears an after-thought and the plea has been taken only to avoid the question of default. Again, the respondent No,1 has claimed that he paid rent w.e.f, September, 1991 to February 1999 to Nadeem Kauser and Naveed Kauser but he has failed to discharge the burden for the reasons fully noted-above. Again, the respondent No,1 has admitted that he was neither informed by the landlady nor by her attorney to pay rent to anybody else, but when he started depositing rent in the Court, he as per his own admission started depositing the same in the name of Nadeem Kauser and Naveed Kauser. Thus without any authority he started depositing rent in the name of Nadeem Kauser and Naveed Kauser an unconcerned persons. . This also amounts to not paying/tendering rent to the landlady by the tenant. The order dated 25-9- 2006, passed by the learned Rent Controller, Karachi Central is quite legal and appropriate in the circumstances of the case and as a result of mi-reading of the evidence, the same has been set aside by the learned 1st. Appellate Court under her order dated 7-3-2007. The order of the learned 1st. Appellate Court being in violation of the principle of Qanun-eShahadat Order, 1984 and the result of misregarding of the evidence, therefore, the same is not maintainable and is liable to be set aside.
18. In view of the above discussions, I allow this Constitution Petition with costs and set aside the order dated 7-3-2007, passed by learned 1st. Addl. District Judge, Karachi Central. As a consequence therefore, order dated 25-9-2006, passed by the learned Rent Controller, Karachi Central is maintained. The respondent No,1 is directed to vacate the premises in question within 30 days and hand over its possession to the petitioner. In case of his failure to vacate the premises in question, the Rent Controller is directed to issue writ of possession as per law, without serving any notice upon respondent No,1