' ABDUL RASOOL MEMON, J.--- By this Constitution petition the petitioner has challenged the orders dated 13-10-2009 in First Rent Appeal No, 94 of 2009 passed by the Vth Additional District Judge Karachi (Central), whereby the order dated 28-5-2009 passed in Rent Case No,814 of 2006 by VIth Rent Controller Karachi (Central) on application under section 15 of Sindh Rented Premises Ordinance, 1979 was maintained and thereby appeal was dismissed.
2. Facts of the case are that the respondent No,1 is owner/landlord of Shop No,90 (Old No,59), commercial building known as Muhammad Rahim Market, situated on Plot No,SD-15, Block-A, North Nazimabad, Karachi and the petitioner is his tenant by way of tenancy agreement dated 1-1-1994.
Initially the rent of the shop was Rs,745/- excluding the conservancy charges and later on mutually increased to Rs,995/- per month. As per respondent No,1, the petitioner paid the rent up to the month of March, 2005 and thereafter neglected to pay the rent, therefore, he is defaulter in payment of rent, hence he may be ejected from the demised premises.
3. The petitioner admitted the relationship of landlord and tenant and prevailing rent at the rate of Rs,9951-. The said shop was given on rent vide Tenancy Agreement dated 1st January, 1994 as the respondent was then minor hence agreement was executed through the respondent's mother.
4. The petitioner has denied the default in payment of rent and stated that initially four Shops bearing Nos.56 to 59 were let out to the petitioner by the father of the respondent namely Riaz-ur- Rehman sometimes in or about 1980 for running of Cafe at the rate of Rs,2188/- per month.
According to the petitioner he intended to pay/offer the rent for the month of April, 2005 but the respondent's, mother's authorized agent refused to accept the rent. Thereafter the appellant tendered the rent for the month of May, June and July, 2005 through Money Orders which were refused and subsequently the said petitioner started to deposit the monthly rent in respect of all the premises including the premises in question through M.R.C. No,468/2005, hence no default is committed of any sort by the petitioner. The Rent Controller formulated the following points for determination:-
(1) Whether the application for eviction is not maintainable?
(2) Whether the opponent committed default in payment of rent?
(3) What should the order be?
5. By answering the Point No,1 in negative, Point No,2 in affirmative found the petitioner as wilful defaulter in payment of rent and ordered that the demised premises be vacated by the petitioner within the period of three months. The same order was assailed before the Appellate Court and the learned Vth Additional District Judge Karachi (Central) concurred the findings of the learned Rent Controller and thereby dismissed the appeal.
6. Learned counsel for the petitioner has not challenged the finding on maintainability of rent application and has further argued that the petitioner was depositing the rent in M.R.C. On refusal to receive the rent by the respondent No,1, and he even tendered the rent by Money Order and the said default was adjustable by the Rent Controller but instead of allowing the adjustment of the same has called upon the petitioner to deposit the amount in this rent application and the said tentative order dated 2-2-2008 was complied with. He has contended that the Rent Controller did not take into consideration the deposit of the rent by the present petitioner in. M.R.C. In the name of mother of the respondent No,l. He has contended that in the circumstances the said default was merely technical in nature and said carries no element of contumacy on the part of tenant and this default cannot be termed as wilful default. In support of his contention he has placed reliance on the cases of Zafarullah Khan v. Abu Bakar (1995 CLC 23) and Jawaid Ashraf Khan v. Mst. Suriya Begum (1999 M LD 2886).
7. Learned counsel for the petitioner has argued that the petitioner has failed to show that respondent/landlord ever refused to accept the rent by tender in person or by money order and the tenant without any justification started depositing the same in M.R.C. Before the Rent Controller in absence of any proof would not be a valid' tender in the eyes of law. In support of his contention he placed reliance on the case of Muhammad Asif Khan v. Shaikh Israr (2006 SCM R 1872)
Muhammad Suleman v. Messrs Alvi Brothers (1991 CLC 1068) and Bashir Ahmed v. Messers Roots School Network (2011 SCM R 290). He has further contended that the appellate court was final authority under the Sindh Rented Premises Ordinance, 1979 and Constitutional Jurisdiction cannot be invoked as substitute to another appeal against such order. He has placed reliance on the cases of Shakeel Ahmed v. Muhammad Tariq (2010 SCM R 1925).
8. I have given careful consideration to' the arguments and gone through the relevant papers on record. In this case the respondent No,1 has filed his affidavit-in-evidence wherein he has stated that the shop was initially rented out at Rs,745/- per month but later on it was mutually increased to Rs,995/- per month; the petitioner has paid the rent at the said rate of rent upto the month of March, 2005, thereafter failed and neglected to pay the rent despite of repeated demands. Initially burden of proof in case of default would be on landlord to prove that tenant had not paid or tendered the rent. The landlord/respondent No,1 has filed his affidavit and has stated that the rent was not tendered or received by him or his mother and in such circumstances when the respondent has disputed the tender of rent to him, onus of proof was shifted to the tenant/petitioner and he was required to prove affirmatively that he has IA paid or tendered the rent for the disputed period. The contention of the petitioner is that he offered the rent for the months of April, 2005 to the respondent's mother's authorized agent who refused to accept the same and he approached the respondent as well as his mother for the payment of said rent who refused to accept the rent for the month of April and then he tendered the rent for the month of April to July, 2005 through Money Orders which were refused, hence he started to pay the monthly rent in respect of entire unit including the premises in question through M.R.C. No,468/2005. In his cross-examination he has admitted that he has filed the M.R.C. In court wherein the applicant is not party but his mother is opponent and he has not sent any Money Order in favour of the respondent No,1 in respect of shop in question. The name of authorized person has also not mentioned in the affidavit of petitioner to whom he offered the rent for the month of April. In such circumstances as burden lies on the petitioner who asserts, to prove affirmatively that he had paid or tendered the rent to respondent No,1 has failed to discharge his burden through cogent and reliable evidence that the respondent No,1, his mother or their authorized agent refused to receive the rent.
9. The other plea of the petitioner is that he has sent the rent through Money Order to the mother of the respondent. He has produced the Photostat copies of the Money Order coupons and in support of the said coupons he has examined the Postmaster namely Shahid Raza at Exhibit 6. The said coupons do not indicate that the same were delivered to the mother of the respondent No,1 or she refused to receive the rent. The original coupons of the Money Orders have not been produced by the petitioner and he has stated that it has been lost from him. The Postmaster has not deposed that it were accepted by the mother of the respondent No,1 or refused, mere receipt of remittance of Money Order (photocopy) of which has been filed by the petitioner could not be treated as authentic document to prove that the Money Order was remitted. In this respect I am fortified by a case of Muhammad Suleman v. Messrs Alvi Brothers (1991 CLC 1068) supra wherein it is held as under:--- ' In cases where payment by money order is disputed it is proper to examine the postal authorities to establish remittance, delivery and acceptance or refusal of such amount. Furthermore, the procedure prevalent for remitting money order requires that the money order is tendered with a form by the postman and if it is accepted a receipt is given by the payee and if it is refused then the same is returned to the remitter with an endorsement of refusal, In case, of acceptance the receipt is delivered to the remitter. Therefore, where such an authentic procedure has been provided mere receipt for remittance of money order, photocopy of which has been filed, cannot be treated as an authentic document to prove that the money order was remitted".
10. The said case is fully applicable in the circumstances of this case where the petitioner has failed to bring on record that mother of the petitioner or petitioner has ever refused to receive the Money Order. In such circumstances in a case of Muhammad Asif v. Shaikh Israr (2006 SCM R 1872) the Hon'ble Supreme Court has held that nothing was available on record to show that the landlord ever refused to accept the rent by tendering the rent 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 and thereby conduct of the tenant in the circumstances was termed to be contumacious as it would operate as an act of harassment to the landlord and the order of Rent Controller was held as justified.
11. In the instant case too nothing is available on record to show that landlord, ever refused to accept the rent even the photocopies of Money Order coupons produced on record through Postmaster does not indicate refusal of the respondent No,1 or his mother hence photocopies of remittance receipt or coupons cannot be treated as authentic documents to prove that money order was remitted.
12. The case-law relied by the learned counsel for the' petitioner supra is distinguishable to the circumstances of this case because in the aforesaid cases the question of remittance or tendering of rent was not at issue. Moreover, the petitioner state that he was depositing rent in lump sum for four shops in the M.R.C. No,468/2005 is also in violation in terms of agreement whereby separate tenement has been shown to have been let out to the petitioner and specific amount of rent has been shown in Rent agreement and the present petitioner is shown landlord being minor, therefore, the agreement was executed through his mother but the rent is deposited in M.R.C. Is in the name of mother of the respondent No,1 in lump sum which is too for four shops together. Therefore, deposit of rent in the office of Rent Controller by the tenant in absence of any refusal by the landlord/respondent No,1 would not be a valid tender in the eyes of law, therefore, orders of the learned Rent Controller and Appellate Court are justified and do not require any interference.
13. In this respect the Hon'ble Supreme Court in a case of Shakeel Ahmed supra has held that appellate Court was final authority under Sindh Rented Premises Ordinance, 1979 and Constitutional Jurisdiction cannot be invoked as substitute to another appeal against such order.
In view of the above the Constitutional Petition merits no consideration and stands dismissed accordingly.