1. ' HABIB-UR-RAHMAN SHAIKH, J.---Through this Constitutional Petition, the petitioner has challenged the order dated 11-2-2010 passed by the learned VIIth Additional District and Sessions Judge, Karachi South in F.R.A. No,83 of 2007 whereby the learned Appellate Court dismissed the Appeal of the appellants/petitioners, which was filed by the appellants/petitioners against the order dated 15-2-2007 passed by the learned IIIrd Rent Controller, Karachi South wherein ejectment of the petitioners was allowed from the premises in question.
2. ' Brief facts of the case as per petitioners are that the respondent No,1 is the landlord of the premises in question in which a Shop bearing No,17, State Life Building No,8, Dandas Street, Abdullah Haroon Road, Saddar, Karachi was let out to the father of the petitioners at the rate of Rs,750 per month besides other charges. The respondent No,1 filed a Rent Case bearing No,1065 of 2004 before the learned IIIrd Rent Controller, Karachi South for ejectment of the petitioners from the demised premises, which was allowed. The said order was challenged by the petitioners in F.R.A. No,83 of 2007, which was dismissed by the learned VIIth Additional District and Sessions Judge, Karachi South. Hence this Petition.
3. ' It is, inter alia, contended by the learned counsel for the petitioners the respondent No,1 has not come to this Court with clean hands, as according to him in the earlier round of litigation a Rent Case bearing No,450 of 1994 was filed by the respondent No,1 for enhancement of rent which was declined by the learned Rent Controller. However, it was allowed that the rent was being enhanced at the rate of 10% on the existing rent after expiry of three years since 1990 according to law. The said order was challenged by the respondent No,1 in First Rent. Appeal bearing No,320 of 1998 (New F.R.A. No,1257 of 2001), which was also dismissed by the learned Ind Additional District and Sessions Judge, Karachi, South and observed that the respondent No,1 (Appellant) is not entitled for further enhancement in the rent at the rate of Rs,45 per sq. Ft., per month but he is at liberty to enhance the rent at the rate of 10% per annum of existing rent after three years. He has further contended that the petitioners have not committed any default in payment of rent to the respondent No, 1.
4. According to the learned counsel for the petitioners, the petitioners deposited rent at the rate of Rs,750 per month from May, 1998 to October, 2005, which comes to Rs,67,500, but an amount of Rs,90,946 in MRC No,958 of 1998 was deposited by the petitioners, which could have been adjusted by the respondent No,1, but inspite of that, the respondent No,1 filed ejectment proceedings before the Courts below on the ground of default in payment of rent, which shows the mala fide and ulterior motive of the respondent No,
1. Learned counsel for the petitioners has further argued that the two Courts below have not applied their judicious mind while passing the order/judgment (impugned herein). Learned counsel for the petitioners has further argued that upon refusal to accept the rent by the respondent No,1, the petitioners have been depositing the monthly rent in MRC before the learned trial Court, which was not considered by the learned Appellate Court, while passing the impugned judgment.
5. ' On the other hand, learned counsel appearing on behalf of the respondent No,1 has vehemently objected the contentions of the learned counsel for the petitioners and has argued that not a single documentary evidence has been placed by the petitioners before the learned Appellate Court that petitioners were depositing the monthly enhanced rent in the light of the order of the learned trial Court. According to the learned counsel for the respondent No,1, it is well settled principle of law that the tender of rent, in whatever mode it may be, must be within the prescribed time, and once the default is established the tenant must suffer its consequences.
6. ' I have heard the learned counsel for the parties and perused the entire material available before me.
7. Prima facie, it appears from the record that in the earlier round of litigation, the respondent No,1 filed a Rent Case for fixation/enhancement of monthly rent, which was dismissed. However, it was allowed that the rent may be enhanced at the rate of 10% on the existing rent after expiry of three years since 1990 according to law. The said order was challenged by the respondent No,1 in First Rent Appeal, which was also dismissed by the learned Appellate Court. The record further reveals that the petitioners had not challenged the said order passed by the learned Appellate Court in First Rent Appeal bearing No,320 of 1998 (New F.R.A. No,1257 of 2001) .
8. ' Thereafter, the respondent No,1 again caught the petitioners in the litigation by taking a plea of default in payment of rent and succeeded before the two Courts below and the order/judgment passed by the two Courts below have been challenged by the petitioners in the instant Petition, by invoking the Constitutional jurisdiction of this Court.
9. The record further reveals that the petitioners have failed to produce any evidence before the learned trial Court as well as learned Appellate Court that he has not committed any default in depositing rent amount and so also he has not produced any documentary evidence about refusal of Landlord/respondent No,1 for acceptance of the rent amount himself or sent by the petitioners through Money Order. The petitioners have not produced any law on this point because of that substantive law says that the Tenant, who is the defaulter in payment of rent, would be liable for eviction notwithstanding subsequent payment of arrears of rent.
10. ' In the case of Hakim Abdul Latif v. Abdul Fazal Abdul Hannan (1986 M LD 2975), wherein it has been held that:-- "Payment of rent after commission of default---Effect---Rent paid by tenant after commission of default before filing of ' eviction application against him, held, would be of little significance and such payment could not erase consequences of default already committed by tenant-Contention, that after receipt of such payment, landlord had waived his right to file eviction application, had no substance."
11. In the case of Feroze Ahmed v. Mst. Zehra Khatoon (1992 CLC 735), wherein it has been held that:-- "It will be seen that in the absence of written agreement of tenancy the tenant would be deemed to have committed default if he failed to tender rent within sixty days after it became due, viz, tenth of the month next following the month for which it is due. Thus the appellant committed two defaults in payment of rent, one for the month of July 1986, which was deposited on 20-10-1986 and the other for the month of August 1986, which was deposited on 25-11-1986. The tender of rent, in whatever mode it may be, must be within the prescribed time, and once the default is established the tenant must suffer its consequences."
12. In the case of Muhammad Asif Khan v. Sheikh Israr (2006 SCM R 1872), wherein it has been held that:-- "Landlord filed ejectment application on the ground of default, which was allowed by Rent Controller but High Court in exercise of appellate jurisdiction set aside the eviction order and ejectment application was dismissed---Validity---Nothing was available on the record to show that landlord ever refused to accept rent by tender so as to entitle or give any justification to tenant to send monthly rent through money order or thereafter to change even such mode into deposit of rent in the office of Rent Controller---Deposit of rent in the office of Rent Controller by tenant in absence of any proof of refusal by the landlord, would not be a valid tender in the eye of law---Conduct of tenant, in circumstance, would be termed to be contumacious as it would operate as an act of harassm ent to landlord---Rent Controller was justified in passing order of ejectment against tenant---Judgment of High Court was set aside and tenant was eviction from the premises---Appeal was allowed."
13. From perusal of evidence of the parties, it is, thus, clear that the rent may be sent to the Landlord by Postal Money Order or it is deposited with the Rent Controller whether the Landlord has refused or avoided to accept it, and not otherwise, but in the present case neither the petitioners have produced any documentary evidence about refusal of rent by the Landlord by himself or through Money Order, nor any written documents have been produced by the petitioners in the learned trial Court regarding the same.
14. ' It appears that the petitioners have not come with clean hands before this Court through this petition.
15. ' The learned trial Court as well as learned Appellate Court have rightly come to the conclusion that the petitioners have committed default and the findings of both the Courts below are based on sound reasoning, need no interference.
16. ' For the foregoing reasons and the case-law cited, I see no substance in this petition, which is dismissed accordingly with no order as to costs.
17. ' However, the petitioners is allowed 60 days' time, from the date of passing of this order, to handover the vacant and peaceful possession of the premises in question to the respondent No, 1.
18. ' This Constitutional Petition stands disposed of in the above terms.