' SADIQ HUSSAIN BHATTI, J.---The petitioner is aggrieved by judgment dated 23-9-2011 passed by learned 1st Additional District Judge, Karachi Central in First Rent Appeal No, 2 of 2011, dismissing the appeal and maintaining order dated 29-7-2010 passed by learned III Senior Civil Judge and Rent Controller, Karachi Central in Rent Case No, 146 of 2006 whereby the Rent Controller dismissed the application of the petitioner under section 20(2), (b) and (c) of the Sindh Rented Premises Ordinance, 1979 and the allowed the ejectment application of the respondent No,1,
2. The facts of the case, as narrated by respondent No,1 before the Rent Controller, are that the said respondent is owner/landlady of commercial premises bearing Nos.7/16, 17, 18, Ground Floor, Commercial Area, A.M. Taufique Road, Liaquatabad, Karachi (hereinafter "the premises"), which was leased in the name of late Abdul Bashir son of Abdul Majeed by defunct K.M.C. In the year 1985.
The said Abdul Bashir expired on 6-1-2000 and left behind Zubaida (respondent No,1) and Fahmida Begum as his legal heirs and they became owners of the premises after the expiry of Abdul Bashir.
The premises was let out by late Abdul Bashir to the petitioner who received the rent from the petitioner from January, 2000 till August, 2005 against proper receipts. Thereafter, the respondent No,1 informed the petitioner that the premises is required for her sons Zubair Ahmed and Shoaib Mansoor. The petitioner refused to vacate the shop. It is also alleged that the petitioner failed to pay rent since September, 2005 onwards. Therefore, the respondent No,1 sent a legal notice to the petitioner in reply whereto the petitioner informed her that rent is being deposited by him in MRC No 653 of 2005.Thereafter, the respondent No,1 filed Rent Case No,146 of 2006 on the ground of default in payment of monthly rent and personal bona fide requirement of the premises for the sons of the respondent No,
1. Notices were issued to the petitioner but he did not come forward to contest the matter. On 11-5-2006, notice was published in the daily "Nawa-e-Waqt" and service was held good and later on the petitioner was declared ex-parte. Finally, on 12-7-2006, the petitioner appeared before the Rent Controller and filed his written statement. On the ,basis of the pleadings of the parties, the learned Rent Controller framed the following issues for determination:- -
(1) Whether the demised premises are required by applicant for personal bona fide use of her son?
(2) Whether the opponent had committed default in the payment of rent?
(3) What should the order be?
2. After hearing the learned counsel for the, parties, the learned
3. Rent Controller decided both the issues of default as well as personal requirement of the sons of the respondent No,1 in favour of the respondent No,1 and under issue No,3 allowed -the rent case and directed the petitioner to vacate the demised premises and hand over its vacant possession to the applicant/respondent No,1 within 60 (sixty) days. The opponent/petitioner impugned this order by filing FRA No,2 of 2011 which was also dismissed and the order of the Rent Controller was maintained. The application under section 20 of the Ordinance, filed by the petitioner, was also dismissed. Hence this petition.
4. Mr. Iftikhar Javed Qazi, learned counsel for the petitioner/tenant Contended as under:--
(1) It was incumbent upon the first appellate Court to have held enquiry under section 21(3) read with section 20(c) of the Sindh Rented Premises Ordinance regarding parentage of the respondent No,1 before deciding the main appeal.
(2) The respondent No,1 was not entitled to file the ejectment application without first establishing her relationship with the landlord deceased owner as neither she produced any title document nor any document to prove that she was the real daughter of the previous owner.
(3) Trial Court was not justified in examining the husband of the respondent No,1, that, too, without any authority from respondent No,1, when she was herself present in Court.
(4) That the respondent No,1 miserably failed to prove her personal requirement as well as default in payment of rent by the-petitioner but still the said issues were decided in favour of the respondent No, 1.
(5) The two Courts below have not properly interpreted the provisions of section 10(3) of the Ordinance.
5. On the other hand, Mr. Adnan Ahmed, learned counsel for the respondent No,1, stated that there are concurrent findings against the petitioner on both the grounds; therefore, such concurrent findings cannot be disturbed in a constitution petition. He also contended that the question of parentage was never raised by the petitioner at the time of tendering rent to the respondent No, I - nor at the time when the legal notice of the said respondent was replied. He also stated that even the MRC was instituted in the name of the respondent No,1, thus admitting that she was daughter of the late Abdul Bashir. No such objection was raised in the written statement. He also contended that the learned counsel has failed to establish compliance of section 10(3) of the Ordinance.
Similarly, according to the learned counsel, the respondent No,1 has also proved requirement of the demised premises for bona fide use of her sons as nothing in rebuttal has been brought by the petitioner.
6. I-have heard the learned counsel for the parties and has gone through the record with the assistance of the learned counsel and has also perused the case-law cited before me.
7. The first contention of the learned counsel for the petitioner is with regard to parentage of the respondent No,1 as he disputes that the respondent is the real daughter of late owner of the demised premises, namely Abdul Bashir. In this regard he filed a copy of a form obtained from NADRA. The learned Rent Controller dismissed this plea with the observation that the opponent/petitioner has accepted the applicant as landlady and, after the death of Abdul Bashir, continuously paid rent to her from the year 2000 to 2005. It was also observed by the learned Rent Controller that though the opponent/petitioner in his application under section 20(a), (b) and (d) of the Ordinance has stated that copy of NIC of A the respondent No,1/applicant along with application but the same was not filed. On the other hand, the applicant/ respondent No,1 has filed copy of her CNIC which clearly shows the name of her father as Abdul Bashir. No objection was raised to this document at any stage. In this view of the matter, the learned counsel dismissed the application of the petitioner under section 20 of the Ordinance and decided this question in favour of. The applicant. An application in the same nature was filed before the learned Appellate Court which was also dismissed for cogent reasons.. The petitioner was fully aware of the status of the respondent No,1 when he paid the rent to her from 2000 to 2005. It was only after the rent case was filed that the petitioner/tenant questioned the status of the respondent No,
1. The petitioner cannot approbate and reprobate in the same breath. It cannot be said that the findings of the two Courts below are fanciful or whimsical or that the same suffer from non-reading or misreading of the evidence on record.
8. The second legal objection pertains to the examination of husband of the respondent. No,1 without any authority. This objection is totally misconceived as exhibit A/4 (page 187) clearly demonstrates that respondent No,1 has executed a General Power of Attorney in favour of her husband clause (4) whereof reads as under:- "To appear and represent before any Court of Law, Department, Office, Tribunal and Authority to safeguard prosecute and defend interest whether in respect of the above said case/ property."
There is no bar that if a lady is not pardah nasheen she cannot be represented by her husband in a Court of law.
9.. The question pertaining to requirement of the demised premises for personal bona fide use of the two sons of the respondent No,1 was a question of fact which was decided by the two Courts below after proper appreciation of the matter and concurrent findings of the two Courts below cannot be disturbed in a constitutional petition. The learned counsel has not been able to show any misreading or non-reading of the evidence on this point. Unless it is shown that the impugned judgment suffers from any of the above shortcomings on the point of personal bona fide requirement, this Court cannot disturb the concurrent findings of the two Courts below on' the point of personal bona fide requirement of the demised premises by the landlord for her two sons.
10. In the case of Miss Akhtar Qureshi v. Nisar Ahmed (2000 SCM R 1292), a full bench of the Hon'ble Supreme Court held that if the statement on oath of the landlord is consistent with her averments made in the ejectment application and was not shaken in cross examination nor anything was brought in evidence to contradict the same, the Rent Controller was justified accepted the evidence of the landlord. It may be advantageous to quote para. 6 of the cited judgment, which reads as under:-- "6. The statement of appellant-landlady on oath was thus quite consistent with her averments made in the ejectment application. Neither her statement was not shaken nor was anything brought in evidence to contradict the said statement. The Rent Controller was, therefore, fully justified in accepting the evidence of the appellant landlady and ordering the eviction of the tenant. Reference in this context, may be made to a recent case of Juma Sher v. Sabz Ali (1997 SCM R 1062)."
10. On the question of default in payment of rent the learned counsel submitted that the two Courts below have not properly appreciated the provisions of section 10(3) of the Ordinance.
12. In the present case it is an admitted position that the tenant/petitioner straightaway started depositing the rent in MRC without first tendering the rent to the landlady/respondent No,
1. It would be advantageous to reproduce the relevant portion from the deposition of the petitioner as under:- - "It is correct that I have given rent directly to the applicant in August, 2005 amounting to Rs,550. It is correct that I have not sent any notice to her for issuance of rent receipt. It is correct that I have not sent rent through money order or tendered her directly deposited in the Court."
13. Section 10(3) of the Ordinance deals with mode of payment' of rent by the tenant to the landlord/landlady, which reads as under:
10. Payment of rent.---(1) The rent shall, in the absence of any date fixed in this behalf by mutual agreement between the landlord and tenant, be paid not later than the tenth of the month next following the month for which it is due.
(2) The rent shall, as far as may be, be paid to the landlord, who shall acknowledge receipt thereof in writing.
(3) Where the landlord has refused or avoided to accept the rent, it may be sent to him by postal money order or, be deposited with the Controller within whose jurisdiction the premises is situate.
14. Thus, as per provisions of section 10 (ibid), every effort shall be made by the tenant to pay the rent directly to the landlord. However, if the landlord refuses to accept the rent then the rent is to be sent through money order and, if the landlord also refuses to accept the rent through money order also, the tenant would start depositing rent with the Controller in Misc. Rent Case. Reference in this regard may be made to the case of Muhammad Aslam v. Haji Muhammad Zahoor (2000 CLC 1961) .
15. In the case of Public Electric. Works v. Mst. Sabira Begum (2000 M LD 901), it was held as under:-- "Now coming to the alleged default nowhere it has come in the evidence that the respondent refused to accept the rent, under section 10 of the Sindh Rented Premises Ordinance, 1979, three modes of tendering rent by tenant to landlord are provided. The appellant was supposed to follow the same in letter and spirit as was rightly submitted by the learned counsel for the respondent there is nothing on record to show that the respondent refused to accept the rent. Therefore, the question of adoption of second, mode i,e, tendering rent through money order was ill advice."
16. In view of the above discussion, I find no merit in this petition which is dismissed. The petitioner is allowed 30 days' time to vacate the premises in question and hand over its peaceful vacant possession to the respondent No,1 subject to payment of rent regularly.