' ABDUL RASOOL MEMON, J.---By this order I would like to dispose of this constitutional petition preferred against the judgment dated 31-5-2011 passed by the 1st Additional District Judge, Karachi Central in F.R.A. No,69 of 2010 whereby the order passed by the IIIrd Senior Civil Judge and Rent Controller Karachi Central on an application under section 16(2) of the Sindh Rented Premised Ordinance, 1979 was maintained whereby the petitioner tenant was directed to vacate the demised premises i,e, Shop No,1 constructed on Plot No,24, Sub-BlockE, Block No,III, Gole market Nazimabad, Karachi within thirty days.
2. The facts of the case are that the petitioner tenant is that the respondent No,1 landlord filed eviction application against the petitioner on the ground of default in payment of rent since November, 1986 as well as for his personal bona fide need and of his son. The case of the petitioner is-that the demised premises was let out to the petitioner on executing tenancy agreement dated 24-4-1974 on monthly rent of Rs,200 which was increased from time to time and presently the rent is Rs,325 per month. Per petitioner he paid rent up to December, 1986 thereafter the respondent refused to receive the rent for the month of July hence he tendered the rent of January, February and March through money order but the same was refused thereafter the petitioner deposited the rent in MRC No,335 of 1987. The petitioner has denied that he has committed any wilful default in payment of rent. During the eviction proceedings, the respondent filed an application under section 16(1) of the Sindh Rented Premises Ordinance, 1979 on 18-10-2006 and after hearing the parties the learned Rent Controller on 21-9-2007 passed tentative rent order directing the petitioner to withdraw the rent amount from the MRC No,335 of 1987 and deposit the same in rent case within a period of one month and to deposit the future monthly rent in Rent Case on or before 10th of each calendar month. The petitioner did not comply with the order dated 21-9-2007 and on 11-11- 2008 the petitioner filed an application under section 151, C.P.C. For, allowing him to deposit the rent in Rent Case instead of MRC No,335 of 1987 and the same application was dismissed by the Rent Controller on the ground that no cogent and plausible reason was shown for non-depositing the rent in compliance of the tentative rent order dated 21-9-2007. Thereafter the respondent filed an application under section 16(2) of the Ordinance, 1979 and the petitioner objected the said application and in his counter affidavit he stated that it was not possible for him to withdraw the rent amount so deposited by him in MRC and to deposit the same in the rent case as his advocate did not obtain copy of tentative rent order in time therefore he came to know about tentative rent order late for depositing the rent in rent case hence non-deposit of rent was not deliberate or willful but was due to unawareness of his counsel. The said reply of the petitioner was not considered plausible and sufficient by the Rent. Controller and he allowed the application under section 16(2) vide order dated 26-1-2010.
3. The counsel for the petitioner has argued that the petitioner was depositing the rent in MRC and due to unawareness and non-informing of his advocate in time the petitioner was continuously depositing the rent in the MRC therefore the non-compliance of the tentative rent order by the petitioner is not wilful or deliberate. He prays for setting aside the orders of the two courts below.
4. The learned counsel for the respondent has argued that the petitioner has not only failed to comply the tentative rent order for withdrawal of the rent from the MRC and to deposit the same in rent case but also did not comply with the order for future deposit of'rent and willfully and deliberately continued to deposit the same in MRC contrary to the directions contained in the tentative rent order, therefore the petitioner has violated the tentative rent order of the learned Rent Controller which was passed in presence of advocate for the petitioner hence such violation could not be termed as misunderstanding or as a bona fide mistake and could not be termed as mere technical default. He argued that in such circumstances the defence of the petitioner has rightly been struck off for deliberate non-compliance of the tentative rent order in the circumstances. He has placed reliance on the, following case laws:-- ' ASHIQ ALI AND ANOTHER V. MEHAR ELAHI AND 13 OTHERS (2001 SCM R 130)
' HUSSAIN TRADING CO. V. MESSRS JALAL BROTHERS (PVT.) LTD. (1993 CLC 2391)
' MUHAMMAD HANIF V. MOHAMMAD MUSLIM (1997 CLC 1491)
5. I have given due consideration to the arguments of both the learned counsel for the parties and have carefully gone through the case record.
6. It is an admitted fact on record that the petitioner did not comply with the tentative rent order dated 21-9-2007 whereby he was directed to withdraw the rent from the MRC No,335 of 1987 and deposit the same in the rent case within a period of one month and he was also directed to deposit future rent at the rate of Rs,325 per month in the rent case on or, before 10th of each calendar month. It is also not disputed that the tentative rent order was passed in presence of learned counsel for the petitioner. It is also admitted fact on record that the petitioner did not comply- with the order till 11-11-2008 for about ten (10) months and on 11-11-2008 he moved an application for allowing him to deposit the amount in compliance of the order dated 21-9-2007 and his said prayer was declined by the trial Court. Had this prayer been allowed then-the default on the part of the petitioner would have been waived. No reasonable cause has been shown for not complying with the tentative rent order passed by the Rent Controller under Order 16(1) of the Ordinance, 1979.
No justification existed for the petitioner for not depositing arrears and future rents in terms of the tentative rent order of the learned Rent Controller; therefore, on the very face of it noncompliance of the tentative rent order being willful and deliberate cannot be termed as technical one. In similar circumstances, in the case of Ashiq Ali supra the. Honourable Supreme Court refused to interfere in concurrent findings of the two Courts below and refused to allow leave to appeal and held as under:-- "Admittedly, the petitioners neither withdrew rent amount deposited by them in Miscellaneous Rent Case No,273 of 1994 for the purpose of depositing the same in Rent Case No,313 of 1994, nor they deposited rent in terms of the order, dated 23-121997 passed under section 16(1) by the Rent Controller, therefore, there was non-compliance of the order 'of the Controller by the petitioners, There appears to be no ambiguity or confusion with regard to the order, dated 23-12-1997 passed by the Rent Controller. The order, dated 23-12-1997 is specific and unambiguous, therefore, there was no justification for the petitioners not to deposit arrears and future rent in terms of the order passed, and consequently non-compliance of it was willful and deliberate. In the circumstances, it cannot be said that the default in payment of rent was a technical one. .In the instant case the petitioner has failed to comply with the tentative rent order passed by the Rent Controller dated 21-9-2007 which is specific and unambiguous and failed to withdraw the rent deposited in MRC 335 of 1987 and deposit the same in rent case and also failed to deposit future rent in rent case. In such circumstances, the petitioner has violated the tentative rent order and such violation cannot be termed due to any misunderstanding or as a result of bona fide mistake therefore defence of the petitioner has rightly been struck off for deliberately not complying with the tentative rent order. No ground for invoking constitutional jurisdiction of this Court has been made out. In the circumstances, I do not find any merit in this constitutional petition which is dismissed accordingly. .