' HABIB-UR-RAHMAN SHAIKH, J.---By this order I intend to dispose of Constitution Petition No.S-1137 of 2012, whereby the petitioner-tenant has challenged judgment dated 10-5-2012, passed by learned IVth Addl: District Judge, Karachi (Central) in F.R.A. No.111 of 2012 and order dated 16-2-2012, passed by learned IIIrd Senior Civil Judge and Rent Controller, Karachi (Central) in Rent Case No.421 of 2010, hereinafter referred to as the "impugned judgment" and "impugned order").
2. Briefly facts of the case are that petitioner filed Civil. Suit bearing No.393 of 2009 in the Court of IIIrd Senior Civil Judge, Karachi (Central) against respondent No.1 and one Muhammad Aslam Aziz Khan, in respect of Shop bearing No.A-3, constructed on Plot No.2/230, Sarrafa Market, Commercial Area, Liaquatabad, Karachi, (hereinafter referred to as the "demised premises") for declaration, mandatory and permanent injunction with the following prayers:--
(i) To declare that the plaintiff is the lawful tenant of the defendant No.1 in respect of the shop tenement premises bearing Shop No.4, on Plot No.2/230. Sarrafa Market, Liaquatabad, Karachi, at the present rate of Rs.1,350 p.m. And in possession of the said tenement as a lawful tenant of the defendant No.l.
(ii) Directing the defendant No.1 not to transfer the tenancy right and/or change the rent receipt in the name of defendant No.2 in respect of the shop tenement property in question.
(iii) Permanent injunction against the defendants, their men, servants, agents, legal heirs, attorneys, successors-in-interest or any other persons, police executor, employees and/or any one claiming through or under all the defendants be permanently restrain from disturbing, causing inconvenience, hardship, anxiety, humiliation and/or from forcibly dispossessing the plaintiff from the tenement premises bearing Shop No.4, on Plot No.2/230, Sarrafa Market, Liaquatabad, Karachi, or any part or portion thereof in any manner without due course of law.
(iv) Any other relief(s) this Hon'ble Court may deem fit and proper under the circumstances of this case.
3. . After service of notice of the above suit, defendant No.1 (respondent No.1 herein) filed his written statement denying all averments made in the plaint and prayed dismissal of suit with costs. During pendency of suit on 10-8-2009, defendant No.1 (respondent No.1 herein) through his counsel filed statement in the trial Court and undertook that the plaintiff (petitioner herein) will not be dispossessed from the demised premises forcibly and without observing due course of law, without prejudice to the legal rights of defendant No.1 (respondent No.1 herein) and also without admitting the allegations levelled by the plaintiff (petitioner herein) against defendant No.1 (respondent No.1 herein). The learned trial Court was pleased to dispose of the said suit on 10-8-2009 by observing that the plaintiff (petitioner herein) will not be dispossessed from the demised premises without due course of law.
4. That on 26-7-2010, respondent No.1, being landlord of the demised premises, filed Rent Case bearing No.421 of 2010, under section 15 of Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the "Ordinance, 1979") against the petitioner on the ground of default in payment of monthly rent. The respondent No.1 narrated in his eviction application that the petitioner was his tenant since last about six years, as such the petitioner was paying monthly rent and paid the monthly rent upto the month of September, 2008 at the prevailing market rate. The petitioner, for reasons best known to him, stopped the payment of monthly rent in spite of repeated demands and requests made by respondent No.
1. The petitioner avoided and refused to pay the monthly rent since the month of October, 2008, and has committed wilful default in payment of rent, therefore, he was liable to be ejected from the tenement premises.
5.. The petitioner pursuant to such- rent proceedings filed his written statement wherein he denied the allegations levelled against him by asserting that he had paid the rent upto the month of September, 2010 at the prevailing market rate but respondent No.1 as per past practice did not issue rent receipt for the same. However, during pendency of rent case, respondent No.1 filed an application under section 16(1) of Ordinance, 1979 praying therein to deposit arrears of rent from the month of October. 2008 to November, 2010 and also to deposit future monthly rent in the above case. The learned trial Court was pleased to dispose of the said application vide order dated 1-3- 2011 with direction to petitioner to deposit arrears of rent for the said period with the Nazir of the trial Court within thirty (30) days. The record reveals that petitioner filed an application for extension of time for depositing rent amount in terms of order dated 1-3-2011, passed by learned trial Court. The learned trial Court after issuing notice to the respondent No.1, hearing both the parties and discussing case law dismissed the application of petitioner vide order dated 16-2-2012. Resultantly, respondent No.1 filed another application under section 16(2) of Ordinance, 1979 as the petitioner failed to deposit rents within the stipulated period, provided by the learned trial Court, with the prayer to strike off defence of petitioner for non compliance of tentative rent order dated 1-3-2011.
The petitioner filed his written objections to this application and the learned trial Court after hearing both the parties allowed application under section 16(2) by order dated 16-2-2012 and struck off defence of petitioner directing him to hand over vacant physical possession of the demised premises to respondent No.1 within thirty days.
6. The petitioner challenged both the orders dated 16-2-2012, passed by learned trial Court by way of filing First Rent Appeal No.111 of 2012 in the Court of learned IVth Addl. District Judge, Karachi (Central) with the prayer to set aside both the said orders and dismissal of Rent Case bearing No.421 of 2010. The learned appellate Court after hearing at length learned counsel for the respective parties dismissed the appeal of petitioner vide impugned judgment dated 10-5-2012.
7. Subsequently, again on 10-7-2012 petitioner filed an application under section 12(2) read with section 151, C.P.C., in Rent Case No.421 of 2010, praying therein to recall ejectment order dated 16-2- 2012 on the alleged ground that respondent No.1 had fraudulently obtained the said ejectment order by way of misreading, concealment of facts and in collusive manner. Notice of this application was given to the respondent No.1 and after hearing learned counsel for both the respective parties, learned trial Court was pleased to dismiss application under section 12(2) read with section 151, C.P.C.
8. Learned counsel for petitioner contended that prior to the rent case petitioner filed Civil Suit No.393 of 2009 in the Court of learned IIIrd Senior Civil Judge, Karachi (Central) for Declaration, Mandatory and Permanent Injunction. Pursuant to such civil suit, respondent No. 1 appeared and filed statement stating therein that they will not dispossess the petitioner without due process of law and after that respondent No.1, with mala fide intention and ulterior motives, filed rent case for eviction of petitioner from the demised premises. He has further contended that the learned trial Court has not considered the application filed by the petitioner after passing the order under section 16(1) of Ordinance, 1979 in which the petitioner has not denied compliance of the Court's order but prayed that he is ready to pay the rents with arrears in instalments but the said application was also dismissed. He further contended that thereafter the respondent No. I filed an application under section 16(2) of Ordinance, 1979 and the learned trial Court without applying his judicious mind struck off defence of the petitioner and the petitioner was directed to hand over vacant peaceful physical possession of the demised premises to respondent No.1 within thirty days.
He has further contended that the order passed by the learned trial Court in haste manner without providing any opportunity to the petitioner by leading evidence or deciding the matter on merits as well as the appellate Court also did not consider the same points and dismissed the appeal.
9. He has further argued that from perusal of the order it is crystal clear that the learned appellate Court has passed the impugned judgment on the basis of arguments advanced by the learned counsel for respondent No.1, and it appears that both the Courts below failed to consider all factual and legal points involved in the case and the impugned judgment and impugned order are result of misreading and non-reading of evidence. He has further contended that after dismissal of the appeal, petitioner has also filed an application under section 12(2) read with section 151, C.P.C., as his previous counsel in the trial Court has committed fraud with the petitioner by not informing him regarding direction of the trial Court on application under section 16(1) of Ordinance, 1979 and when he came to know about these facts the petitioner had filed application, which was not considered by the trial Court as well as the appellate Court. In the last, he has prayed that the instant petition may be allowed and remand back the case to the trial Court to decide the same afresh on merits.
10. Learned counsel in support of his submissions has relied upon the cases of ZAFARULLAH KHAN v.
ABU BAKAR (1995 CLC 23), FATIMUN-NISA v. ZUBAIDA (1990 SCM R 750), ASHRAF BIBI v. MUHAMMAD AMIN (2008 SCM R 1434), STATE LIFE INSURANCE CORPORATION OF PAK. v. KOTRI TEXTILES MILLS (PVT.)
LTD. (2001 SCM R 605) and the case of NOOR MUHAMMAD v. MUHAMMAD BHAI (1984 CLC 2443).
11. Learned counsel for respondent No.1 supported the impugned judgment and impugned order. He has contended that petitioner failed to comply with the trial Court's order by not depositing rents, as ordered. He has further contended that the defence of petitioner was rightly struck off by the trial Court as the petitioner intentionally and wilfully committed default in depositing the rent then the respondent No.1 moved application under section 16(1) of Ordinance, 1979 and the learned trial Judge after hearing both the counsel for respective parties at length allowed the application with direction to the petitioner to deposit rent within stipulated period but the petitioner failed to comply with the order, passed by the learned trial Court. However, the petitioner appeared and filed an application praying therein that he may be allowed to deposit rent in instalments and he was trying to linger on the matter so also he levelled allegations against his counsel and changed him with another counsel. The said application was also rightly dismissed by the learned trial Court. He further contended that thereafter on non-compliance of the Court's order by the petitioner the respondent No.1 filed application under section 16(2) of Ordinance, 1979 and the notice was issued.
Objections were filed and after hearing arguments of both the learned counsel for respective parties at length, the learned trial Court has passed the impugned order and struck off defence of the petitioner with direction to hand over vacant possession of the demised premises to respondent No.1 within thirty days. He has further contended that the petitioner preferred appeal and after hearing learned counsel for both the parties the appellate Court also rightly dismissed his appeal and then he came, with unclean hands before this Court and filed the instant petition with delay of about 162 days, which was not explained, as such this petition is liable to be dismissed on the point of lathes only. To substantiate his arguments, learned counsel for respondent No.1 has cited the cases of MUHAMMAD DIN v. ABDUL GHANI (2012 SCM R 1004), STATE BANK OF PAKISTAN v.
IMTIAZ ALI KHAN (2012 SCM R 280), MITHO KHAN v. ABDUL JABBAR (2003 SCM R 46), UMAHANI FIKREE v.
TAUFIQ FIKREE (2009 YLR 891), SHAHID HUSSAIN v. JUDGE FAMILY COURT (2010 YLR 2061) and AYUB v.
NISAR AHMED (2008 SCM R 703).
12. I have heard learned counsel for the respective parties and with their assistance have gone through the material available on record.
13. The petitioner presented this petition on 9-10-2012 whereas First Rent Appeal No.111 of 2012, which was filed in the Court of IVth Addl. District Judge, Karachi (Central), was dismissed on 10-5-2012.
Application for certified copy of impugned judgment was filed on 3-7-2012 and the signatures of issuing authority on the certified true copy reflects that on 5-7-2012 copy has been delivered to the petitioner and the petition has been filed with delay which has not been explained by the petitioner at any stage. In fact the petitioner had filed a civil suit for declaration, mandatory and permanent injunction which was disposed of on the statement filed by respondent No.1 that without due process of law the petitioner will not be dispossessed. Thereafter, respondent No.1 filed the rent case before the learned IIIrd Rent Controller, Karachi (Central) and the learned trial Court after hearing both the parties and giving opportunity to them decided the same and on failure of the petitioner to deposit the rent within stipulated period and noncomplying with the order of the trial Court then decided the matter against him. Thereafter, the petitioner preferred appeal and the same was also decided after hearing of both the parties at length. It is also revealed from the record and by filing of the present petition that the petitioner is habitual to move application in delay without explaining the same as the order dated 1-3-2011, passed by learned trial Court on application under section 16(1) of Ordinance, 1979 was with direction to the petitioner to deposit arrears of rents amounting to Rs.33,500 from October, 2008 to September, 2010: at the agreed rate of rent of Rs.1,350 per month before the Nazir of the trial Court within thirty days but the petitioner failed to comply with the said order and moved application by leveling serious allegations against his advocate and the said application was moved in delay, which resulted in dismissal of the said application. Thereafter, respondent No.1 filed another application under section 16(2) of Ordinance, 1979 with the prayer to struck off defence of the petitioner as he failed to comply with the order earlier passed and the present petition. Has been filed also with inordinate delay, which was not explained by the petitioner. The petitioner also moved an application under section 12(2) read with section 151, C.P.C., before the trial Court on the ground that his counsel has committed fraud with him, hence the order passed by the learned trial Court be set aside, which application was also dismissed and appeal preferred by the petitioner also resulted in dismissal, which remained unchallenged. The reliance placed by learned counsel for petitioner are based on when the noncompliance of the order was beyond the control of the applicant/petitioner but in the present case no reason whatsoever has been shown by the petitioner that he has not deposited the rent as per order passed by the learned trial Court as the circumstances were beyond his control. The remaining authorities are also distinguishable from the facts of the present case. In the case of MITHO KHAN (supra) no mis reading or non-reading of evidence or misconstruction of facts was found. I am fortified with the view advanced by Hon'bIe Supreme Court in the case of MUHAMMAD DIN (ibid), where it was observed that "If a Court comes to the conclusion that the petition was barred by laches, it is not required that it should also decide the issue raised in the petition on merits". The other case-law quoted by advocate for respondent No.1 fully supported the contentions raised by him.
14. In view of the above facts and circumstances, I am of the humble view that the petitioner has not succeeded to make out his case for interference of the concurrent findings of both the Courts below. Consequently, the petition is dismissed.