' HABIB-UR-RAHMAN SHAIKH, J.---Through this Constitution Petition, the petitioner seeks to set aside the judgment passed by the learned Appellate Court/District Sessions Judge Karachi South in F.R.A.
No. 135 of 2007 titled Haji Muhammad Yaseen (deceased) and others v. Swami Narayan Temple Trust Karachi, on 26-5-2010 and the judgment dated 18-5-2007 passed by the IXth Senior Civil Judge/Rent Controller, Karachi South upon the application under section 15 for the ejectment of the petitioner from the premises in question bearing Godown No.263, situated at Shahrah-e-Liaquat, Karachi in Rent Case No. 149 of 2003 titled (Swami Narayan Temple Trust Karachi versus Haji Muhammad Yaseen.
2. Brief facts of the case are that the deceased father of the petitioner, late Muhammad Yaseen, after paying a handsome amount of pugree, obtained a Godown No. 263, situated at Shahrah- eLiaquat, Karachi, from Respondent No.1 at the monthly rent of Rs.25 sometime in the year 1960.. In the year 1967, the said late Muhammad Yaseen, received a letter dated 8th June, 1967, wherein it was mentioned that as per judgment and decree in Suit No.119/62 by the learned Additional District Judge Karachi South, the following persons have been appointed trustees of the trust from 31-5- 1967.
' Mr. Dingomal N. Ramchandani Trustee---President.
' Mr. Madhavji Dharsibhai ' Mr. C.M. Dave ' Mr. Bulchand R. Kirplani ' Mr. Durgadas Sharma---Secretary
3. That the above stated Muhammad Yaseen (late) expired on 9-1-1972 and left behind the above named petitioners as his legal heirs. After the expiry of the said Muhammad Yaseen, petitioner No. 2, who is also one of the legal heirs of said deceased, used to pay the rent of the premises in dispute to the said trust (respondent No.1), who have received the rent up to the month of August, 1989. Thereafter, petitioner No.2 as per practice tendered the monthly rent to respondent No.1 but the said trust avoided taking the same on one pretext or another. Thereafter petitioner No. 2 tendered the monthly rent through money order for the month of September, 1989 to December, 1989 for an amount of Rs.100 but the trust refused to accept the same. Under the circumstances, the said petitioner No.2 was forced to file Misc. Rent Application for deposit of Rent bearing No. 1884/1989 in the Court of IVth Senior Civil Judge, and Rent Controller at Karachi South. The first rent was deposited on 21-12-1989 as per certified copy of the application under section 10 of SRPO, and certified copy of the money order filed along with the said Miscellaneous Application and certified copy of statement filed.
4. The respondent No. 1 through its Advocate Mr. Amarnath filed an application for withdrawal of rent, but he has not participated in the proceeding as such no order was passed upon said application.
5. Thereafter, on 14-1-1997 respondent No. 1, preferred an application for the withdrawal for the rent through another Advocate Mr. Shamdas and the trial Court was pleased to pass an order for report of the Nazir in response of the said order the Nazir submitted his report but respondent No.1 did not take any interest and the said application is still pending for disposal. It is also not out of place to mention that the said trust was fully aware about the deposit of rent as well as the fact that the said petitioner No.2 who is also one of the legal heirs tendered the rent through money order and they have not raised any objection in the said application and they only prayed for the withdrawal of the rent.
6. That respondent No.1, sometime in the month of February, 2003 through one Mr. Teck Chan Khatpal has filed an application for ejectment against the above named deceased Haji Muhammad Yaseen proprietor of Messrs Shahid Adil and Company, Katchi Gali No.2 near Muslim Commercial Bank, Denso Hall, Karachi. That respondent No.1 in the said application of ejectment has further alleged that the said deceased Muhammad Yaseen (Opponent) was regularly paying the rent of the premises upto August, 1989 and since September, 1989, the said deceased failed to pay the rent. The respondent has also alleged that on 19th, October, 2002, respondent No.1 issued the notice to the said deceased Muhammad Yaseen for the payment of rent, but the opponent has failed to clear the dues and as such committed wilful default. Respondent No.1 has also filed a copy of legal notice as annexure A which shows that the deceased Muhammad Yaseen had received the said notice, although the said Muhammad Yaseen expired on 9-1-1972.
7. That it is further submitted that the applicant has also falsely alleged in the said ejectment application that the applicant for several times approached the said deceased Haji Muhammad Yaseen, but he failed to pay the same. That when petitioner No.1 came to know about the said case he himself appeared before the learned trial Court and moved an application wherein he informed the learned trial Court that the application for ejectment has been filed against a deceased person and also filed the application for information of legal heirs, but the learned trial Court asked the said petitioners to withdraw the. Said application and add legal heirs of the deceased.
8. That under the circumstances, the petitioners filed their written statements wherein they denied all the allegations of respondent No.1 and took the specific plea that the rent case has been filed by an unauthorized person who has no authority from the concerned trust to file the present proceedings on behalf of respondent No.
1. Further the petitioners have also stated the real and correct facts and denied all the allegations for committing any default. That after filing the written statement one Mr. Chanda Lal son of Kaku Mal filed affidavit in evidence on behalf of respondent No.1 but later on respondent No.1 preferred an application under O.' VI for amendment and the said application was dismissed.
9. That thereafter one Tech Chand Khetpal filed his affidavit on behalf of the applicant wherein he stated identical facts as stated in the application and also stated in Para No. 9 as under:-- "That it is submitted that the opponent had/has never offered rent of September, 1989 and onward to the applicant. It is further submitted that neither money order was ever sent to the applicant nor any notice of the Miscellaneous Rent Case No. 1484 of 1989 was served upon the applicant. If for the first time when the written statement was filed the applicant has come to know about the filing of the said Misc. Rent case."
10. It is also pertinent to mention that it was in the knowledge of the applicant that petitioner No.1 has been depositing the rent in the court since September, 1989 and he is also aware that the petitioner has tendered the rent through money order but deliberately, with mala fide intention, made this false statement just to deceive the court and obtain an order in his favour. That thereafter, petitioner No.1 filed his affidavit in evidence wherein he narrated all the true and real facts which are mentioned hereinabove and he was cross-examined by the respondent's counsel.
11. That thereafter the learned trial Court without framing the issues regarding the maintainability of the said rent application was pleased to frame the following issues:--
(1) Whether the opponent committed wilful default in payment of rent fiom September, 1989?
(2) What should the order be?
12. That the learned trial Court while giving the finding in affirmative was pleased to allow the respondent's application for ejectment and passed the impugned order. It is also submitted that although in the application for amendment the learned trial Court was pleased to observe the said ejectment is not maintainable but he failed to frame the issue regarding the maintainability of the ejectment application.
13. That thereafter respondent No.1 filed an appeal against the judgment of the learned rent controller respondent No.2 and along with the said appeal the petitioner has also filed the copies of the receipts and copies of the money orders. It is also pertinent to mention that the petitioner for the convenience of the appellate court has also filed the statements of amount which are deposited in Miscellaneous Rent Application and the learned appellate Court was pleased to dismiss the said appeal on 26-5-2010 and direct the petitioner to vacate the premises within sixty days.
14. The learned counsel for petitioner contended that Haji Muhammad Yaseen, as predecessor of the petitioner had entered in the tenancy agreement with the landlord/ respondent in the year 1960 and the said Haji Muhammad Yaseen had expired in the year 1972, he had paid the rent amount regularly. Thereafter the rent premises Godown was become under possession' of the appellant and the petitioner No.1, regularly paying the rent to the Trust and did not make any default in the payment of rent. He further contended that the plea of the respondent that the petitioner's opponent had paid the rent till the month of August, 1989, in fact the respondent/ applicant had refused to take the rent through the petitioner's opponent had sent the rent through money order and thereafter the petitioner/opponents filed. MRC No.1884 of 1989 and since then .They had deposited the rent in the court and thereafter had never failed to pay monthly rent amount since September, 1989 at the rate, of Rs.25 per month. The said rent was deposited by the petitioners/opponents No.1 through his brother regularly in the abovementioned MRC, before the court of learned IVth Rent Controller being one of the legal heirs. Neither the petitioner/ opponent committed any wilful default in any payment of arrears/monthly rent without any reason the respondent/ applicant intend to eject the petitioner's opponent with mala fide intention and ulterior motive in fact after the death of actual tenant Haji Muhammad Yaseen, the legal heir running the business as statutory tenant. He further contended that both the learned lower courts below did not take into consideration that the petitioner's/opponent had sent money order to the respondent/ applicant for the rent of September to December, 1989 and passed ejectment order in haste the order by the learned trial Court as well as First Appellate Court are bad in law and on facts he further contended that both the orders/judgments are liable to be set aside and petition may be allowed in the interest of justice. Learned counsel for petitioner has also relied upon the case-law reported in 1979 SCM R 182, PLD 2009 SC P.183 and 2006 CLC P.
71.
15. On the other hand learned counsel for respondent contended that the orders/judgments passed by both the lower courts are very much correct the landlord had filed the rent case against Haji Muhammad Yaseen, as the landlord have no knowledge about the death of his tenants then he filed the application and when the landlord came to know he filed amended title of the case and all the legal heirs were joint as opponent so this point also shows that the petitioners were intentionally deliberately with mala fide intention and alterior motive had not informed the landlord regarding death of actual tenant and paying the rent continuously upto the month of August, 1989.
The MRC rent case filed by the petitioners on 22-12-1989 after that they deposited the rent of the premises in the court where they filed the MRC without showing any notice regarding the information or depositing the rent in the court of law. Apart from this, he further contended that the learned counsel appearing on behalf of the petitioner has not taken any plea committed by both lower. Courts in their orders/judgments, no any point raised by him to show the non-reading and misreading of the evidence in their judgments and orders, the petitioner had not produced any witness to examine him in their favour and support their version and they failed to point out what was the fraud committed by the landlord by invoking the remedy available to him. He also prays that there are concurrent findings of lower courts below and pray that the petition may also be dismissed in the interest of justice.
16. Learned counsel for respondent has relied upon case-law reported in 2007 M LD F 1700, PLD 2001 SC 415, 2007 SCM R 761, 2011. CLC page 19, PLD 1981 SC 522, 1993 SCMR P.
212.
17. Thereafter, the petitioner called in question the said judgment and the order in this instant petition. After filing of this petition, the petitioner again moved an application under section 12(2), C.P.C. Before the learned trial Court with the allegations that the respondent No.1 has committed fraud by obtaining order from the learned trial Court. The said application was dismissed and the appeal preferred by the petitioner was also dismissed and the same challenged by way of Constitutional Petition No. S-1149 of 2011 before this Court. From perusal of the entire record, it appears that father of the petitioner namely Haji Muhammad Yaseen was the tenant of the respondent No.1 and had paid rent regularly. After his demise, the petitioner being one of the legal heirs as per his contentions paid rent upto August, 1989 without informing the respondent No.1 that his father has expired. During arguments of both the learned counsel for the Parties, they had contested the rent application by leading their evidence and on merits, learned trial Court had decided the rent matter. It also reveals from the record that the petitioner had filed Appeal, which also after hearing of both the Parties, learned Appellate Court decided the Appeal. The contention of the learned counsel for the petitioner that the case has been filed against a dead person, is incompetent. No doubt his contention is substantive but the case in hand it reveals from the record and admission of the petitioner that when they informed in the Court by filing objections in the rent application, which was filed iby the respondent No.1 that their father Haji Muhammad Yaseen has expired in the year 1972. Thereafter, -the respondent No.1 moved an application for amendment of the title. Thereafter, the case has been decided in between the petitioner and the respondent No.1 so the question raised by the petitioner is not warranted and it a/so reveals from the record that no any information regarding death of father of the petitioner was given by the petitioner to the respondent No.
1. The tenancy as well as rate of rent was admitted by both the Parties in their respective pleadings and in the evidence. The case of the respondent No.1 that the Opponent has paid rent upto August, 1989 thereafter, he failed to pay the rent and it was admitted by the Opponent that the petitioner being one of the legal heirs has paid rent after demise of their father. Further, he admitted that upto September, 1989, the petitioner had paid rent to the respondent No.1 but he denied in his cross-examination that they have not sent the rent through Money Order and also admitted in the cross-examination that the Petitioner has not produced Money Order Coupon through which he sent the rent for the month of September, October, November and December, 1989. It is well-settled law that when the landlord asserted on oath that he has not received rent for B certain period then burden shifted upon the shoulder of the tenant to prove that he has paid rent to the landlord. In the case in hand, the position is same, as stated above, so the burden shifted upon the shoulder of the petitioner/Opponent to prove that he paid the rent from September, 1989 onwards. He also admitted that Coupon of the Money Order was not produced in evidence by the petitioner and it also reveals from the record that in MRC No.1884 of 1989 since 23-12-1989 as per receipt he first time deposited rent from the month of September 1989 to December, 1989 amounting to Rs.100 and thereafter he continued depositing rent in Court, which shows that the petitioner has failed to prove that he is not defaulter and he has also failed to prove that the landlord/respondent No.1 has refused to accept the Money Order.
18. In the case of Feroze Ahmed v. Zehra Khatoon 1992 CLC 735, wherein it has been held that:-- "Deposit of rent with the Rent Controller in a case where landlord has not refused or avoided to accept the rent, would not constitute valid tender of rent. It is further taken a view that section 15(2)
(ii), the' tenant who is the defaulter in payment of rent, would be liable eviction notwithstanding subsequent payment of arrears of rent."
19. It further reveals that:-- "It will be seen that in absence of written agreement of Tenancy, the Tenant would be deemed to have committed default if he failed to tender the rent within 60 days after it become due, is, 10th of month next following month for which it is due thus appellant committed two defaults in payment of rent one for the month of July, 1986, which was deposited on 20-10-1986, and other for the month of August, 1986, which was deposited on 25-11-1986. Tender of rent in whatever mode it may be, must be within the prescribed time, and once default is established, the tenant must suffer its conesquences. "
20. In the present case, the record further reveals that the petitioner has deposited the rent in the month of December,.
1989. The rent for the month from September, 1989 to December, 1989 four months without proving that the landlord has refused to accept the rent in any documentary proof submitted by the petitioner before the learned trial Court. Furthermore, learned counsel for the petitioner has argued upon the factual r position of the case and seeks remedy through this petition. It is well-settled law that this Court has no jurisdiction in the Article 199 of the Constitution of Pakistan to serve the purpose of Second Appeal against the order of learned Rent Controller and the learned Appellate Court and the High Court would not be justified to embark upon re-examination of the evidence for the purpose of evaluating the merits of the impugned judgment of the learned Rent Controller and the learned Appellate Court, fortified with the case of Muhammad Latif v. District Judge, Karachi (South) (2009 YLR 2234).
21. In view of the above discussion, this Constitutional Petition found meritless and the learned counsel for the petitioner has miserably failed to bring the case of the petitioners in their favour on the point of concurrent findings. The orders/judgment passed by the two Courts below are upheld.
Thus, this petition is, hereby dismissed Accordingly. The petitioners are directed to vacate the demised premises as directed by both the courts below.