SHAHID ANWAR BAJWA, J. The petitioner of this petition is tenant ofFlat No. 502, 5th Floor, Muhammad All Housing Society, Karachi and respondent No. 3 is ,the landlord. Tenancy 'commenced in 2004. Landlord filed an ejectment application in May, 2007 alleging default from January, 2007 to filing of the ejectment application as well as on the ground of personal need.
Written statement was filed by the tenant. On application under Section 16(1) of the Sindh Rented: Premises Ordinance, 1979, tentative rent order was passed by the Rent Controller on 22.4.2008 and the tenant was directed to deposit arrears of rent from January to May, 2007 within 30 days. Tenant was further directed to deposit future monthly rent by 10th of each calendar month. It appears that this order was not complied and consequently application under Section 16(2) of the Sindh Rented Premises Ordinance, 1979 was filed for striking of defence of the tenant and allowing of the rent application. On this application the tenant only filed a statement. Report was called from Clerk of the Court regarding deposit of arrears and rent. The report indicated that the tenant deposited Rs.
25,000/- on 27.5.2008 while period of 30 days expired on 21.5.2008. The learned Trial Court observed that the tenant and his counsel failed to give any plausible reason for this delay. Consequently application under Section 16(2), Sindh Rented Premises Ordinance, 1979 was allowed, defence of tenant was struck of and rent application was allowed.
2. Being aggrieved by the order of the Rent Controller appeal was filed by the tenant/petitioner which appeal was dismissed by judgment dated 27.4.2009. The Appellate Court observed as under:-- "Here in this case the learned Trial Court vide order dated 22.4.2008 directed the appellant to deposit arrears of rent from January, 2007 to May, 2007 within 30 days, but the respondent has failed to comply with the above directions. The record shows that the appellant had deposited Rs.
25,000/- on 27.5.2008 while 30 days period was expired on 21.5.2008, as such he has failed to comply the directions of the Trial Court within time and also has failed to give any plausible explanation for delay."
3. Learned counsel for the petitioner referred to grounds 'B' and 'C' of his Memo. Of appeal in the Appellate Court. The said two grounds are reproduced below:-- "b. That the Hon'ble Trial Court has fell into great error by holding that the tentative order was not complied by the appellant. Although annexure `C' for deposit of rent for the months of May and June clearly shows, that the said rent was deposited on 10th May, 2008 by strictly complying the tentative order, as the monthly rent was to be deposited in the Court in the main rent case on or before 10th of each calendar month. The Hon'ble Trial Court even did not appreciate that the rent of June, 2008, which was due, to be deposited upto 10th of June, 2008 was also deposited on 10th May, 2008 alongwith the rent of May, 2008 even one month earlier. c. That although 30 days for deposit of arrears of rent for disputed period were fixed but the appellant due to not available in Karachi, as he was gone for Tableegh-e-lslam for forty days and returned back on 25/26 May, 2008, therefore after reaching back he immediately deposited arrears of rent in the Court without any further delay which reflects his bona fide intention to deposit the arrears of rent and there was absolutely no mala fide intention on the part of appellant to withhold the arrears of rent. The respondent has already withdrawn the monthly rent alongwith arrears of rent from the Court with no objection of the appellant, therefore the respondent has not sustained any loss at all due to delay of only 4/5 days but the Hon'ble Trial Court did not appreciate this aspect of the case while passing the impugned order and has penalized the appellant by strictly construing the tentative order only to the extent of arrears of the rent."
4. Learned counsel relied upon 1990 SCMR 750, 1987 CLC 1391, 1999 MLD 2886 and 2000 CLC 1134.
5. Learned counsel for the respondent submitted that tentative rent order was passed on 22.4.2008 and therefore period of 30 days for depositing arrears of rent ended on 21.5.2008, rent was deposited on 27.5.2008 and therefore, it was six days beyond last date for payment of rent and no plausible explanation whatsoever has been furnished by the respondent. No counter-affidavit was filed to application under Section 16(2) of SRPO. It was contumacious default. There are concurrent findings of two Courts below and in writ jurisdiction this High Court should be most reluctant to disturb concurrent findings.
6. While exercising his right of reply the learned counsel for the petitioner submitted that though tentative rent order was passed on 22.4.2008 but he came to know of this order on 25th/26th May, 2008 and thereafter he promptly complied with.
7. I have considered such submissions made by the learned counsel and have gone through the record. Learned counsel for the petitioner relied upon Mst. FatimunNisa and others Vs. Mrs. Zubaida (1990 SCMR 750). In this case Rent Controller had ordered on 28.10.1981 (to deposit arrears of rent by 10.11.1981 and it was pleaded that tenant was not aware of order dated 28.10.1981 as he failed to attend the Court due to illness. Medical Certificate was produced by the tenant). Delay was condoned and Supreme Court did not interfere. In Jamil Ahmad v. Mrs. Sultan Jehan Begum (1987 CLC 1391), defence was struck of for three days' delay in depositing rent for one month and eviction was ordered. It was found that tenant was depositing rent regularly in time for last six years. Delay of three days in the circumstances was condoned. In Jawaid Ashraf Khan v. Mst. Suriya Begum (1999 MLD 2886), tenant had already deposited rent in miscellaneous application with Nazir of the same Court in the name of same landlady and the Rent Controller. Default was held to be not contumacious on the part of tenant. Order of Rent Controller was set aside and case was remanded by the High Court to the Rent Controller. In Babar Parvez v. Muhammad Saad (2000 CLC 1134), the amount was deposited by mistake in miscellaneous case instead of the case relating to ejectment application . High Court held that non-compliance in the circumstances could at best be treated as an irregularity and could not therefore attract penal consequences of Section 16(2) of the Sindh Rented Premises Ordinance, 1979.
8. On the other hand, learned counsel for the respondent relied upon Muhammad Yousaf v.
Muhammad Bashir and others (1990 SCMR 557). There was only one day's delay in deposit of monthly rent. Delay was not condoned by the High Court and the Supreme Court did not interfere.
In M/s. Platinum Insurance Co. Ltd. v. M/s. State Life Insurance Corporation of Pakistan (1991 MLD 1256) it was held that Rent Controller did not have discretion to condone delay and Muhammad Yousaf's case was followed. G.Z. Malik v. Mrs. Khayyam Baig (PLD 1991 Karachi 370) is a judgment by the same Judge who authored Platinum Insurance Company's case and is practically in the same terms. In M/s. Pragma Leather Industries v. Mrs. Sadia Sajjad (PLD 1996 S.C. 724), it was held that in Constitutional jurisdiction the High Court would be justified in not interfering with such findings.
9. In the present case, delay is for six days, the amount was deposited on, 27.5.2008. No counter- affidavit to application under Section 16(2) of SRPO, 1979 was filed in the Court of the Rent Controller. However, in grounds of appeal as quoted above, it was stated that the tenant was not available at Karachi as he had gone for Tableegh-eIslam for forty days and returned back on 25/26th May. In the first ground tenant had stated that since he had paid rent by 10th for the month of May there could not have any reason why he could not, pay arrears. There is no assertion here as to how tenant came to know about requirement of deposit of rent on May 10th. It was by order dated 22.4.2006 that required him to deposit rent by 10th May. It was in the same order dated 22.4.2008 that the learned Rent Controller had ordered deposit of arrears and then payment of monthly rent by 10 of each month. Since the tenant deposited rent on 10th of May, the things speak for itself, at least on 10th of May he knew of the tentative rent order. The case-law referred to by the learned counsel does not really help him because in Zubaida's case the tenant pleaded that he did not know of the rent order. But here the tenant complied with one part of the rent order and did not comply with the other part of the same order. The other three cases relied upon by the petitioner are the cases where there was a technical default either rent deposited in the wrong case but in the same Court or by mistake in another case or in Jamil Ahmad's case consistent conduct over six years. No such element is present in this case. The strict view taken by the Supreme Court in Muhammad Yousaf's case is law of the land. Even otherwise the petitioner had failed to make out any ground for interference with concurrent orders by the Courts below. This Constitution petition is therefore, dismissed in limine with listed applications. .