1. ' HABIB-UR-REHMAN SHAIKH, J.---The petitioner, through this Constitutional Petition, has challenged the order dated 25-1-2012 passed by the learned 3rd Additional District and Sessions Judge, Karachi East in F.R.A. No,82 of 2011 whereby the learned Appellate Court dismissed the Appeal of the petitioner and upheld the order dated 14-3-2011 passed in Rent Case No,257 of 2009 by the learned Vlth Rent Controller, Karachi East, who while dismissing the said Rent Case, directed the petitioner to vacate the premises bearing Flat No,2, 1st Floor, Nasim Plaza, Plot No,375, Garden West, Nishter Road, Karachi and hand over its peaceful vacant possession to the respondents within a period of 30 days from the date of this order. Hence this petition.
2. ' Briefly the facts leading to the case are that the respondents Nos.1 and 2 are the owners and landlords of the Building known as Nasim Plaza, situated at Plot No,375, Garden West, Nishter Road, Karachi and the Flat. No,2, 1st Floor situated in the said building was given to their tenant/petitioner on the monthly rent of Rs,770 per month excluding all other utility charges, in respect thereof a Tenancy Agreement was executed on 15-4-1995. Thereafter, an application under section 16(1) of the Sindh Rented Premises Ordinance, 1979 moved by the respondents Nos.1 and 2 was allowed on 15-3-2010, but the petitioner has failed to deposit rent; upon which the respondents Nos.1 and 2 moved another application under section 16(2) of the Sindh Rented Premises Ordinance, 1979, which was too allowed against the petitioner and she was directed to handover the peaceful and vacate possession of the demised premises to the respondents Nos.1 and 2.
3. ' It is, inter alia, contended by the learned counsel for the petitioner that both the Courts below have erred in law while passing the orders impugned herein and have not applied their judicious mind.
4. He has further contended that the petitioner has not committed any willful default in payment of rent, as according to him, when the respondents Nos.1 and 2 made the life of the petitioner miserable, the petitioner in the month of September, 2001 sent the money order to the respondents Nos.1 and 2, which was refused. Thereafter, the rent was deposited in the trial Court in MRC No,731 of 2001. Learned counsel for the petitioner while relying on the Rent Receipts issued by the learned trial Court, has contended that monthly rent was being deposited in time and no default in any manner whatsoever has been committed by the petitioner. According to the learned counsel for the petitioner, the respondent No,1 filed his affidavit-in-evidence on 18-12-2009 and so also Applications under sections 16(1) and 16(2) of the Sindh Rented Premises Ordinance, 1979, upon which the learned trial Court by striking off the defence of the petitioner passed the order for ejectment of the petitioner from the demises premises. He has next argued that both the Courts below have misunderstood the case of the petitioner, as according to him, mere fact that the rent was not deposited in terms of the order passed by the learned Rent Controller by the petitioner, does not amount to default in the payment of monthly rent and it can be termed as technical default. In support of his case, learned counsel for the petitioner has placed reliance upon the case of Syed Ahsan Ali v. Jaffar Ali PLD 1964 (W.P.) Karachi 418 and Khair Muhammad Nizamani v. Abdul Quddus (PLD 1965 (W.P.) Karachi 367).
5. ' On the other hand, Mr. Muhammad Ikram Siddiqui, learned counsel for the respondents Nos.1 and 2 has vehemently controverted the arguments advanced by the learned counsel for the petitioner and has contended that no error has been made in the orders passed by the two Courts below.
6. The learned Appellate Court has rightly taken.a decision for not interfering in the order of the learned Rent Controller. According to the learned counsel for the respondents Nos.1 and 2, the petitioner is bound to deposit. The future rent in MRC on or before 10th of each calendar month. The monthly rent has already been deposited by the petitioner in MRC upto June 2010 and after passing of tentative order dated 15-3-2010, the petitioner deposited rent on 8-4-2010 and then rent was further deposited on 6-8-2010 almost after three months without furnishing any plausible explanation, which shows mala fide of the petitioner. In support of his case, learned counsel for the respondents Nos.1 and 2 has relied upon the case of Tariq Bari and another v. The IVth Additional District and Sessions Judge (2010 YLR 3279(2)) and Ashiq Ali v. Mehar Elahi (2001 SCM R 130).
7. ' I have heard the learned counsel for the Parties and perused the entire material available before me.
8. ' It would be pertinent to mention here that what does law says in section 16(1) and (2) of the Sindh Rented Premises Ordinance, 1979, which is reproduced herein below:- "16. Arrears of rent.--.-
(1) Where a case for eviction of the tenant has been filed, the Controller shall, on application by the landlord and after such summary inquiry as he deems fit to make, determine the arrears of the rent due and order the tenant to deposit the same within such period as the Controller may fix in this behalf and further direct the tenant to deposit monthly rent regularly on or before the tenth of every month, until final disposal of the case.
9. (Provided that the Controller may direct that the arrears of rent and approximately rent may be paid to the landlord through pay order or by any other mode agreed to by the parties or as directed by the Controller).
(2) Where the tenant has failed to deposit the arrears of rent or to pay monthly rent under subsection (1), his defence shall be struck off and the landlord shall be put into possession of the premises within such period as may be specified by the Controller in the order made in this behalf."
10. Prima facie, it appears from the record that the learned Rent Controller, in his order passed on the application under section 16(1) of the Sindh Rented Premises Ordinance, 1979. Has clearly directed the petitioner to deposit the future rent at the rate of Rs,770 with the increasement of 10% with the Nazir of lower Court in the said rent case before 10th of each English Calendar months, which the petitioner deposited rent on 8-4-2010 and then rent was further deposited on 6-8-2010 almost after three months, which shows mala fide of the petitioner which cannot be termed as technical default. It is well settled principle of law that the I B technical error can be curable, but illegal error cannot be curable.
11. ' In the case of Ashiq Ali v. Mehar Elahi (supra) it has been held that:-- ' "Ss. 15, 16(1) & 16(2)---Constitution of Pakistan (1973), Art. 185 (3)---Default in deposit of arrears of rent as ordered by Rent Controller---Striking off defence---Concurrent findings of fact by Courts below---Tenant claimed to have deposited monthly rent in the miscellaneous case---Rent Controller directed the tenant to deposit the arrears of rent in the Court but the amount was not so deposited--Rent Controller struck off the defence of the tenant and passed order of his ejectment- --High Court also dismissed the appeal filed by the tenant-ValidityNo jurisdiction existed for the tenant not to deposit arrears and future rent in terms of the order passed by the Rent Controller-- Non-compliance of the order being wilful and deliberate was not a technical one--Supreme Court refused to interfere in the concurrent findings of the two Courts below--Leave to appeal was refused by the Supreme Court."
12. ' In view of the above discussion, I am of the considered opinion that the petitioner has failed to show any illegally and irregularly in the order dated 25-1-2012 passed by the learned 3rd Additional District and Sessions Judge, Karachi East in F.R.A. No,82 of 2011 and the same does not call for interference. Consequently this Constitutional Petition is hereby dismissed.