' IRFAN SAADAT KHAN, J.--- Since the issue involved in all these petitions is same, these Constitutional Petitions are therefore disposed of by this consolidated order.
2. Briefly stated the facts of the case are that the respondent Madrsa Ghousia Taleem-ul-Quran Ahle-Sunnat-Wal-Jamat (Hanafi) (Regd.) Mirpurkhas (hereinafter referred to as "landlord") is a religious Trust, duly registered under Societies Registration Act, 1860 bearing Registration No,591, which affairs are being conducted and looked after by its office-bearers and Managing Committee. Due intimation in this regard had also been given to the Provincial Assistant Registrar, Joint Stock Companies, Hyderabad, who had also issued a notification to such effect. The landlord Trust was formed in the year 1962 and its main purpose was to impart religious education. In order to generate some income for achieving the above object the landlord Trust constructed a market with 11 shops and two cabins at the ground floor known as "Market of Madrsa Ghousia Taleem-ul- Quran Ahle-Sunnat-Wal-Jamat (Hanafi) Mirpurkhas", where the petitioners are its tenants with monthly rent ranging from Rs,312/- to Rs,538/-. That on 9-5-2010 a meeting of the office-bearers and Managing Committee of the landlord Trust took place wherein it was decided that since the rent of the shops given to the petitioners is quite low, looking to the present market condition at which the shops of the adjoining areas were let out, the rent of the said shops be enhanced to Rs,2000/- per month and thereafter it was also decided in the said meeting that due legal formalities be also fulfilled in this regard. Subsequently notice for the enhancement of rent was given to the petitioners vide notice dated 16-5-2010. Thereafter, one more meeting of the officer bearers and managing committee of the landlord Trust took place on 21-11-2010 wherein it was decided that since the petitioners are not depositing the rent on the due dates, hence Mr. Farid Ahmed, General Secretary, was entrusted with the duty to take up the matter and to adopt such legal actions as may be required against the delinquent tenants. That an another meeting dated 22-11-2010 of the officer-bearers and Managing Committee of the landlord Trust took place wherein Mr. Farid Ahmed was assigned the duty to engage a counsel and to take up the matter before the Court of law for getting the said shops vacated from the defaulting tenants. Legal notices in this regard were also sent to the petitioner vide letter dated 4-12-2010 wherein it was informed to them that since they have failed to pay the rent for the last six months, they have committed default.
Being aggrieved with the said action of non-payment of rent by the petitioners, applications under section 15 of the Sindh Rented Premises Ordinance, 1979, (SRPO) were filed by the respondents against the petitioners, separately, before the 1st Rent Controller, Mirpurkhas. The learned Rent Controller after hearing the matter at considerable length vide his order dated 31-1-2012 found the petitioners/tenants defaulter in payment of rent and allowed the said applications by directing them to vacate the said premises within 60 days from the date of the order. Being aggrieved with this order appeals were preferred before the learned Ist Additional District Judge, Mirpurkhas, who also vide his order dated 1-11-2012 affirmed the order passed by the learned Rent Controller by directing the petitioners to hand over the possession of the disputed shops to the respondent within 30 days of this order. It is against this order that the present petitions have been filed.
3. Mr. Anwar Jamal, learned senior counsel took lead in arguing the matter on behalf of the petitioners and submit d that the enhancement of rent made by the landlord is illegal and uncalled for as the same has been made unilaterally, which is totally against the provisions of section 7 of the SRPO. He read out the said section and stated that since the said section starts with the word "no" and the word "shall" is also used in the said section, hence this provision has become mandatory provision of law and its non-compliance would render the action taken by the landlord to be illegal. He stated that since the amount of rent claimed by the landlord was an exaggerated amount, the petitioners were not entitled to pay the same. He further stated that no application under section 8 of the SRPO was filed by the landlord. He stated that a fair rent could only be fixed by an authority and not by their own choice of the landlord. He stated that the petitioners are not obliged to deposit the rent at the higher figure, as demanded by the landlord. The learned counsel also raised a technical objection that the person who has filed the said application before the Rent Controller was not an authorized person as the said person namely Farid Ahmed, claimed himself to be a General Secretary of the said Trust, whereas perusal of clause-7 of Articles and Memorandum of Association would reveal that there is no such authority as General Secretary. He kept on to argue that since the General Secretary was not an office-bearer, therefore, he was not authorized to file the ejectment application and the two Courts below were not justified in entertaining the said application. In the end he submitted that as the two Courts below have erred in passing these orders, the same are liable to be set aside and these petitions need be allowed as prayed. In support of his arguments the learned counsel has relied upon the decision in the case of Province of Sindh and 3 others v. Agha Sikandar Ali Khan reported as 1990 CLC 1644.
4. Mr. Rao Faisal while adopting the arguments of the learned senior counsel invited my attention to a note given in the order passed by the learned Additional District Judge, wherein the learned Judge himself has opined that since certain legal formalities have not been fulfilled, hence, according to him, in view of these legal infirmities, the matter should have been remanded back to the Rent Controller for deciding the matter afresh, rather than dismissing the appeals.
5. Mr. Hashim Leghari also adopted the arguments of the two counsel and in support of the arguments relied upon the decision given by the Hon'ble Supreme Court in the case of Oceanic International (Pvt.) Ltd. v. Lalazar Enterprises (Pvt.) Ltd. Reported in 2010 SCM R 737.
6. Mr. Rana Sohail Mehmood, Advocate appeared on behalf of the respondent and stated that the facts given by the learned counsel for the petitioners are not correct as no applications for determination of fair rent were furnished by the landlord rather the applications which were filed were for the ejectment of the petitioners on the ground of nonpayment of rent. While elaborating his viewpoint, he submitted that as per the petitioners they were not required to pay the monthly rent at Rs,2000/- but this is not the case of the respondent, rather the case was that of non- payment of the agreed rent altogether. He stated that all the petitioners are defaulters in payment of rent. The learned counsel submits that even the rent they were previously paying to the landlord was not paid. He stated that had the petitioners paid the rent they were previously paying and contested the matter, the position would have been different but in the instant case the position is that the petitioners had admittedly failed to pay even the rent they were previously paying and the learned two Courts below by making specific observation on this aspect have found the petitioners to be defaulters in payment of agreed rent and thereafter passed their orders regarding the ejectment of the petitioners. He stated that this aspect could be verified from the facts obtaining on the record that no rent was paid from June, 2010 for more than six months. The learned counsel vehemently argued that applications for enhancing the rent were neither filed nor the matter was decided by the two Courts below in this regard. He invited my attention to the orders passed by the two Courts below wherein it has categorically been mentioned that the respondent cannot enhance the rent abruptly from the original figure to Rs,2000/- p.m. Therefore according to him, the learned two Courts below have decided the matter upon finding that the petitioners/tenants had not even paid the agreed amounts of the rent. Hence, according to him, both the Courts below have rightly passed the order by observing that the petitioners/tenants are liable to be ejected, since they were found to be defaulters in payment of the rent. He further stated that so far as the issue about filing of application by Mr. Farid Ahmed is concerned, this issue, according to him, was also raised before the Rent Controller, who after dealing with the matter in detail found the same to be devoid of any merit. He states that, however, it is interesting to note that this issue was not raised in appeal by the petitioners before the Additional District Judge, therefore, since this issue was neither raised nor dilated upon hence could not be said to be arising out of the order of the Additional District Judge. He, therefore, reiterates that firstly this issue is not entertainable and secondly the said Mr. Farid Ahmed was fully authorized by the landlord Trust to look after the affairs of the Trust and take necessary legal actions as deem fit and necessary. The learned counsel further stated that it is only the petitioners who are agitating the issue, whereas the other two tenants namely Meharban Ali and Abid are paying the rent of the two shops without any default. In support of his contentions, the learned counsel has relied upon the decision in the case of Yasmin Khan v. Qadir reported as 2006 SCM R 1501.
7. While making rebuttal the learned counsel for the petitioners reiterated their submissions and stated that the matter may be remanded to the Rent Controller since a note is appended by the learned Additional District Judge in his order regarding some shortcomings found in the order of the learned Rent Controller.
8. I have heard all the learned counsel at considerable length and have perused the record, the law referred by them and the decisions relied upon.
9. It is an admitted position that no rent for the period June, 2010 to November, 2010 was paid by the petitioners. Even in the petition filed by Mr. Muhammad Hashim Leghari i,e, C.P. No,S-838 of 2012 at page 87 (Annexure K/1) a receipt of Court is appended showing that rent for the months from June, 2010 to January, 2011 were paid as late as on 4-1-2011. Similar is the position of the other tenants. In the evidence recorded at the Rent Controller stage petitioners have admitted that they had defaulted by not paying the rent and even the rent which they were previously paying to the respondent was not paid. A perusal of the record and the decisions also clearly demonstrate that the ejectment applications were filed not on the ground of determination of any fair rent rather the same had been filed on the ground of default in payment of rent. It is also seen from the record that there is no denial on the part of the petitioners with regard to the relationship between them and the respondent as that of landlord and tenant. It is also an undeniable fact on the part of the petitioners that they stopped making the payment of the rent after the receipt of the legal notice dated 16-5-2010. A specific question was asked from the learned counsel representing the petitioners that if they were aggrieved by the enhancement of rent from the respondent/landlord whether they had paid the amount of rent they were previously paying and all the three learned counsel representing the petitioners candidly conceded that no such rent after the period of June, 2010 was paid, however, stated that subsequently they had made the payments. It is also an undeniable fact that it is only after finding the petitioners to be defaulter in making payment of the rent that the ejectment applications were filed by the landlord before the said Rent Controller. It is also an undeniable fact that there is no evidence available on the record that the petitioners were willing to pay the rent and have offered the payment of rent to the landlord, who, in this regard have refused to accept the same. It is also an undeniable fact that there is no evidence available on the record that upon refusal to accept the rent by the landlord, the petitioners had started depositing the rent before the Court rather this again, as per the record, appears to be voluntary on their part. Hence, so far as default on the part of the petitioners in payment of rent is concerned from their own pleadings the same stood established.
10. Now coming to the second limb of the arguments of the petitioners that Mr. Farid Ahmed was not an authorized person to file the ejectment applications. This aspect too has been dealt in detail by the Rent Controller. Even if it is assumed for arguments sake that Mr. Farid was not the General Secretary of the landlord Trust and the post of General Secretary does not find mention in the list of office-bearers of the landlord Trust even then the said Mr. Farid has duly been authorized by the said Trust to act on their behalf. The record also reflects that no question about his authorization has even been raised by any of the office-bearers or the persons of the Managing Committee that they have not authorized him in this regard. Hence this objection also raised by the petitioners is found to be devoid of any merit and is hereby repelled.
11. It is also seen from the record that the learned Additional District Judge has also observed that the landlord/respondent though on one hand cannot claim enhancement of rent, which is against the provisions of section 7 of the SRPO but on the other hand is entitled to get its premises vacated in case of default in payment of rent. The learned Judge has further rightly observed that mere demand of the enhanced rent by the landlord from the tenant would not exonerate him from payment of agreed rent.
12. So far as the contention raised by the petitioners that since a note has been appended by the learned Additional District Judge by observing about shortcomings in the order of the Rent Controller, suffice to say that these observations are meant for future guidance only and the only rational behind the said note is to educate the Rent Controller to be vigilant while examining the witnesses and the documents produced and no advantage in this behalf could be given to the petitioners.
13. It has also been observed that an issue was raised by the learned counsel for petitioners that since an advance amount/pugree is with the landlord, hence, the same should have been adjusted against their defaulted rent, if any. Here again it is observed that the pugree amount in most of the case is given as a fixed amount at the time of obtaining the shop or other premises as the case may be, and it has got nothing to do with the monthly payment of rent. Hence, this objection, raised by the petitioners' counsel, is also found to be devoid of any merit. In this behalf I am fortified with the decision in the case of. Mrs. Shamim Bano v. Mrs. Nazir Fatima, reported as 2001 SCM R 1552, wherein the Hon'ble Apex Court observed as under:- "6. A bare perusal of what has been reproduced hereinabove would reveal that petitioner has admitted the default. We are not persuaded to agree with the main contention as agitated on behalf of petitioner that since the amount of Rs,3,00,000 was paid as 'Pagree', therefore, the default could have been adjusted against it for the simple reason that no mention whatsoever has been made regarding the amount of 'Pagree' in tenancy agreement and even if the said amount is treated as 'Pagree' being mutual arrangement between the parties having no legal sanctity behind it could not be adjusted against rent which has to be paid in accordance with the terms and conditions as stipulated in the tenancy agreement and amount of 'Pagree' would not figure in being alien to the tenancy agreement and would also amount to an introduction of a new concept for payment of rent for which an agreed specific mechanism has been evolved in the tenancy agreement." .
14. The decisions relied upon by the learned counsel representing the petitioners are also found to be quite distinguishable on the simple premise that in the said decisions the question of determination of fah rent was involved, whereas in the instant petitions the question is not with regard to the determination of fair rent rather it is a simple case of ejectment on the basis of default in payment of rent. It is noted from the decisions referred by the learned counsel for the petitioners that the same in fact support the contentions of the respondent as in the case of Province of Sindh and 3 others v. Agha Sikandar Ali Khan (1990 CLC 1644) Mr. Qaiser Ahmed Hamidi, J. (as he then was) has categorically observed as under:--- "8. Under the existing law it is the duty of the tenant to pay or tender rent to landlord within time.
This liability continues even if the landlord demands an excessive or exorbitant rate of rent. It does not absolve the tenant to pay or tender the agreed rent".
15. Perusal of the decision in the case of Mst. Yasmeen Khan v. Abdul Qadir and another (2006 SCM R 1501) relied upon by the counsel of the respondent reveals that the Hon'ble apex Court has categorically observed as under:--- "6. In view of the above admitted position and evidence on record and the law laid down by this Court, default in payment of rent for the month of January, 1991 stood proved on the part of respondents. In the circumstances, impugned judgments are set aside and appeals are allowed.
The respondents are directed to vacate the premises within six months subject to deposit of monthly rent in the office of Rent Controller. The respondents shall hand over vacant possession of the suit property to the appellant on expiry of six months period and in case of failure thereof the Rent Controller would issue writ of possession against them without any further notice, if necessary with police aid. "
16. I was able to lay my hands on some decisions given by the Hon'ble Supreme Court of Pakistan, which are discussed as under:--- ' In the case of Ahmad Ali alias Ali Ahmad v. Nasar-ud-Din and another (PLD 2009 Supreme Court 453) the Hon'ble Apex Court has observed as under:--- "11. Non-payment of the rent of the property in dispute by the tenant is admitted, as such, he would be inferred as defaulter, so liable to be ejected".
' In the case of Muhammad Zaman v. Mst. Sardar Begum (1990 SCM R 990) the Hon'ble apex Court has observed as under:- "We have heard the learned counsel for the parties and have gone through the findings of the Courts below. The learned counsel for the petitioners has tried to argue the factual side of the case. After hearing him on this point we find that there is no substance in his arguments as the matter involved in these petitions stands concluded on concurrent findings of fact by the Courts below. The learned Single Judge of the High Court has thoroughly discussed the merits of the case in his findings which in our opinion suffer from no legal or otherwise defects. As the agreement in writing in the Court is negated by the conduct of the petitioner No,1 in these petitions when he failed to pay the agreed rent, the non-payment of which has clearly proved the default committed on his part."
' In the case of Mursaleen v. Ghulam Sarwar (1991 SCM R 2042), the Hon'ble Apex Court has observed as under:- "In this case, the appellant has absolutely failed to rebut the allegation of the respondent about the default in the payment of rent. The two Courts on proper appraisal of evidence have decided the issue against the appellant. The default has been proved against the appellant. "
17. In view of the above observations, I am of the view that no case of interference is made out as admittedly a default has been committed by the petitioners in non-payment of the agreed amount of the rent and thus they have exposed themselves for ejectment from the above premises. The petitions are, therefore, dismissed along with the pending applications, with the direction to the petitioners/tenants to vacate the premises within 60 days from the date of this order, subject to deposit of monthly rent in the office of the Rent Controller. The petitioners shall also hand over the vacant possession of the subject property to the respondent on expiry of 60 days and in case of failure thereof the learned Rent Controller would issue writ of possession against them without any further notice, if necessary with police aid.