' SHAHID ANWAR BAJWA, J.--- Brief facts giving rise to this Constitutional petition are that petitioner is tenant in respect of Flat No.B-21 Second Floor Sunny Heights constructed on Sub-plot No.118/3/H- 5, of Plot No.118/3 at Deh Odewari, Main Rashid Minhas Road. Tenancy commenced on 6-1-2003.
Ejectment Application No.183 of 2007 was filed on 31-3-2007 alleging default September, 2006-till filing of ejectment application and bona fide personal need of the landlord. Learned Rent Controller vide order dated 18-9-2009 allowed ejectment application on ground of default. Ground of personal need was not accepted. Being aggrieved by order .Of the Rent Controller present petitioner filed appeal and learned Appellate Court passed order on 21-7-2009 and concurred with order of the learned Rent Controller.
2. Learned counsel for petitioner made the following submissions:---
(i) That alleged default was for a period of six months i.e. September, 2006 to March, 2007 and therefore he should have been given benefit of provision of clause (ii) subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979, which provision was inserted by the amending Ordinance of 2001. He submitted rent for the period of March, 2007 was paid on 9-3-2007 through money order.
(ii) That rent application was filed through Abdul Qayoom Khan in whose favour a power of attorney has been stated to be executed on 15-1-2004. He submitted that although power of attorney is attested by Notary Public but signature of executant on power of attorney does not match with signatures of the executant on other documents available on record.
(iii) That before filing of rent application, landlord had moved application before Justice of Peace, in which ground of default was not stated. Learned counsel referred to cross-examination of the applicant and pointed out that the applicant in his cross-examination had stated as under:--- "It is correct that I have not produced any documentary proof for the payment of monthly rent for the month of September, 2006 in February, 2007. It is correct that Asghar Awan is not examined as witness in my favour however he left abroad."
(iv) That in affidavit-in-evidence, the appellant had produced money order receipt to establish that rent for March was paid through money order and no question in cross-examination was asked in respect of this document. Learned counsel relied upon Habib Ahmad v. Liaquat Hussain PLD 1985 Kar. 741, Abdul Samad Khan v. Asif Malik (Asif Zaman Khan) 1989 CLC 1994, Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCM R 1700 and Imran Khan and others v. Aftab Khan 2008 CLC 1043.
3. Learned counsel for the respondent firstly submitted that this writ petition has been filed against concurrent findings of the fact and the proposition of law that High Court should be most reluctant to interfere with concurrent findings of fact needs no authority anymore. Secondly, benefit of provision of subsection (2) of section 15 cannot be availed by petitioner because petitioner did not fulfil conditions required by that provision.
4. I have considered submissions made by the learned counsel. I have also gone through the case- law- and the record of the petition.
5. Before proceeding further I may first refer proviso. To clause (ii) subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979, which proviso was inserted by the amending Ordinance of 2001. The provision is in following words:--- "(2) The Controller shall make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that:---
(i) the tenancy has ceased to be valid under section 6.
(ii) the tenant has failed to pay rent in respect of the premises in his possession within fifteen days after the expiry of the period fixed by mutual agreement between the tenant and landlord for payment of the rent, or in the absence of which agreement, within sixty days after the rent has become due for payment: [Provided that where the application made by the landlord is on the sole ground mentioned in this clause and the tenant on the first day of hearing admits his liability to pay the rent claimed from him, the Controller shall, if he is satisfied that the tenant has not made such default on any previous occasion and the default is not exceeding six months, direct the tenant to pay all the rent claimed from him on or before the date to be fixed for the purpose and upon such payment, he shall reject the application]."
6. A bare perusal of the above provision would clearly indicate that it is applicable only when the following conditions are concurrently met:---
(i) Ejectment application is filed on sole ground of default.
(ii) Default does not exceed six months.
(iii) On the first date of hearing tenant admits his liability to pay rent claimed.
(iv) It is not a case of first default and Rent Controller directs tenant to pay rent claimed on or before the date to be fixed for this purpose.
7. It is only when all the four conditions are met that proviso to clause (ii) of subsection (2) of section 15 kicks in. If or all of these conditions, even if a single of them are not these proviso cannot be made application to the case.
8. In this case written statement is available at page 79 and default is specifically denied. In presence of such specific denial and particularly so in absence of clear statement of admission of liability be the tenant I do not think tenant can claim benefit of the said proviso.
9. As per questions relating to money order or power of attorney application to justice of peace are concerned, I do not think they need to be gone into when this Court is exercising jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan particularly in case where two Courts below have concurrently held that petitioner has committed wilful default. Both the Courts below have looked at in minute detail on the money order. It was for the month of March. It has been specially admitted by the petitioner in his cross-examination that he had not produced any documentary proof in respect of payment of monthly rent for the months of September, 2006 to February, 2007. There is no dispute between parties that rent for March, 2007 was paid but the question in this case was default from September, 2006 to February, 2007 and for that period tenant has not been able to convince the two Court bellows and also has not been able to point out infirmity or misreading of evidence. Case-law cited by learned counsel does not help his case.
10. In Imran Khan's case it was held that if assertion made in examination-in-chief was not controverted in cross-examination. It will be deemed to have been admitted. But this case only be said in respect of rent paid for March, 2007. In cross-examination there was clear admission by the petitioner that he had no proof of payment from September, 2006 to February, 2007. In Liaquat Hussain's case it was held that it was compulsory for landlord to acknowledge receipt of rent in writing. In Abdul Samad Khan's case contention of landlord was that rent of premises had been subsequently enhanced and tenant had failed to deposit rent at the enhanced rate. It was held that burden to prove enhancement of rent was on landlord. In Muhammad Akhtar's case there was question whether power of attorney is to be strictly construed. It is nobody case that power of attorney did not give authority in respect of a rent case. Therefore, references to the case-law by the learned counsel do not really help his case.
11. Be that as it may, in exercise of constitutional jurisdiction questions of fact cannot be gone normally into particularly when they have been decided, concurrently by the two Courts below.
Constitutional Petition No.S-515 of 2009 is, therefore, dismissed in limine with listed application.
12. These are the reasons of short order passed on 15-10-2009 in Court.