1. ' AFTAB AHMED GORAR, J.--- Through the instant petition, the petitioner has challenged the judgment dated 27-7-2013 passed by learned VIIth Additional District Judge, Karachi South in F.R.A.
2. No,266 of 2012 whereby he dismissed the appeal filed by the petitioner against the ejectment order dated 29-9-2012 passed by learned Vth Rent Controller, Karachi South in Rent Case No,976 of 2010.
3. ' Precisely, the facts of the case are that respondent filed rent application praying therein for ejectment of the petitioner from Flat No,22, 4th floor, Mehrunissa Building, situated on Plot No,RS-4- 412-A,. M.B. Dallal Road/Master Road, near Noor Masjid Ramswami Quarters, Karachi, on the grounds of default in payment of rent and personal bona fide need. In the ejectment application it was asserted that petitioner's ancestors were the tenant in respect of the flat in question at the rate of Rs,350 p.m., thereafter rate of rent was enhanced to Rs,500 and then from 1-10-2008 to Rs,1000 p.m. The petitioner lastly paid rent for the period 1-9-2007 to September, 2008 and then he failed to pay the rent from the month of October, 2008. The respondent served a legal notice on 20-2-2010 which remained unresponded. On 22-6-2010 another legal notice was served upon the petitioner which was also not replied. According to the respondent, the petitioner committed wilful default in payment of rent for 22 months. The respondent further stated that the flat in question was required by him in good faith for the settlement of his daughter in the flat in question.
4. ' The petitioner contested the rent application by filing written statement wherein he denied the allegations raised by the respondent in the rent application. He stated that he had been regularly paying the monthly rent as well as utility charges but the mother of the respondent and other persons who received the rent from the petitioner, used to issue receipts after 5/6 months. He denied that he has avoided or failed to pay monthly rent from October, 2008 and onwards.
5. According to him, lastly he paid Rs,9000 in the month of February, 2009 to the respondent but the respondent did not issue rent receipt on the ground of non-availability of Receipt Book. He also denied to have received any notice from the respondent.
6. ' On the pleadings of the parties, learned Rent Controller formulated the points of default and personal bona fide need for determination and after recording of evidence and hearing the counsel for the parties, allowed the ejectment application on the ground of default in payment of rent only vide Order dated 29-9-2012. The said order was challenged by the petitioner in appeal which was dismissed by the appellate court vide impugned judgment, hence this petition.
7. ' I have heard the learned counsel for the parties and perused the material available on the record.
8. ' Learned counsel for the petitioner contended that the two courts below erred in law and on facts while passing the impugned order/judgment. He further contended that the impugned order/judgment are based on misreading and non-reading of evidence. According to him, both the courts have decided the matter in a hasty and mechanical manner without appreciating the facts on record and the evidence adduced by the parties. He further contended that the two courts below have not applied judicial mind to the pleadings of the parties and the law involved. He further submitted that both the courts below failed to examine carefully the entire record of the case and decided the matter on the basis of surmises and conjectures. He further contended that the two courts below have ignored the aspect of the case that the respondent used to issue rent receipts after 5/6 months and it was only when the respondent did not issue the rent receipts that the petitioner started depositing. The rent in court. He prayed for setting aside the order/judgment passed by the courts below.
9. ' Conversely, learned counsel for the respondent/landlord contended that the concurrent findings of the lower courts below in rent matter cannot be challenged in constitutional petition. He further submitted that the two courts below after examining the pleadings of the parties, recording of evidence and hearing their viewpoints have passed well-reasoned order/judgment. He further contended that it has come in evidence that the petitioner once paid the rent for 20 months and thereafter for 16 months which fact clearly establishes that the petitioner had paid the rent after committing the default. According to him, in the instant case neither there is any jurisdictional error, nor there is any perversity, illegality or infirmity in the impugned order/judgment, therefore, the same having been passed in accordance with the law, need no interference. He prayed for dismissal of the petitions.
10. ' So far as the ground of personal bona fide need is concerned, the learned Rent Controller has given his findings on this point against the respondent/landlord which has not been challenged by him, hence the same attained finality and need not be discussed.
11. ' Averting to the issue of default in payment of rent, it is alleged by the respondent that the petitioner had committed default in payment of rent and used to 'pay the same after the stipulated period and has totally failed to pay the rent from October, 2008. It is now well-settled that once the landlord comes in the witness box and states on oath that the A tenant has committed default in payment of rent, the burden shifts on the shoulder of the tenant to rebut such assertion. In the instant case, during the cross-examination, the petitioner/tenant admitted that he had paid the arrears amount of rent to the landlady and voluntarily stated that the landlady used to receive the collective rent from him for 15 or 16 months without any objection. He further admitted that the rent receipt dated 1-5-2007 issued, to him pertained to the arrears of rent for 20 months which he had paid to the landlady. He further admitted that the rent receipt dated 10-9- 2008 issued to him by the landlady pertained to the period of 16 months viz. From June, 2007 to September, 2008. He further admitted that the address mentioned in the legal notice issued by the respondent was correct.
12. 'It is a well-settled principle of law that the tenant is under obligation to offer rent to landlord and only in cast of his refusal to accept the same, tenant could resort to other modes of payment i,e, remittance through money order or depositing the same in court. It is for the tenant to prove that he had offered the rent to landlord and that the landlord had refused or avoided to accept the same. In the instant case, the petitioner has miserably failed to establish that he had fulfilled the requirements of the law. In the absence of any material from the side of the petitioner/tenant to such effect, no presumption except that he has defaulted in payment of rent, could be gathered.
13. Needless to say that a tenant is also obliged to produce, if he had sent the postal money order, the coupon of money showing endorsement regarding refusal of the landlord to accept the same. Only in such a situation a tenant would be entitled to deposit the rent in court which is lacking in the instant case. It is also an admitted position that the petitioner/tenant used to pay the rent in lump sum for 16 months and 20 months etc. After committing default which is not permissible under the law.
14. ' Needless to emphasize the legal proposition that it is the sole responsibility of the tenant to pay the monthly within time to the landlord and he cannot absolve himself from such responsibility merely for the reason that nobody came to collect the rent from the side of the landlord or that there was a practice for tendering the rent for few months in lump-sum. In the case reported as Muhammad Saleh v. Muhammad Shall 1998 SCMR 33 honourable Supreme Court held as under:--- "Even otherwise inaction or allowing an opportunity to pass by does not necessarily amount to waiver because when, for instance, a tenant consistently fails to pay rent, being aware of his obligation to pay it, or where there is delay by the landlord in filing an ejectment petition out of decency to the tenant or hesitates in going to the court or for any other reason, the tenant cannot be allowed to take up the plea that the landlord had, by his conduct in failing to take action, waived his right to receive the rent. It has been held that even gratuitous indulgence shown by one of the parties does not constitute estoppel or waiver. ID Omission to enforce one's legal right strictly cannot give rise to an inference that the right has been abandoned."
15. ' In the case reported in 1986 CLC 393 it was held as under:--- "It is also not denied that the appellant has been paying the rent in lump sum for more than one month. According to the learned counsel for the appellant this was done as per practice that has evolved in due course of time. It may be observed that such practice has always been disapproved by the superior courts which have always construed it as a sort of concession emanating from the helplessness of the landlord. The Courts have, therefore, been of the view that such condonation of the tenant's lapses by the landlord should not be interpreted as a practice giving licence to the tenant to adopt the same as if it is a perpetual arrangement made with willing consent of the landlord."
16. ' In the case reported in 1986 CLC 93 it was held that the default in payment of rent committed by tenant could not be condoned merely because landlord himself did not go to tenant to collect the rent.
17. 'So far as the plea of the petitioner that no notice has been served upon him is concerned, by virtue of section 27 of the General Clauses Act, it is a settled principle of law that if a pre-paid envelope is sent by registered post on the correct address, it is deemed to have been served unless proved otherwise. In AIR 2005 SC 109 the Supreme Court of India held that notice dispatched by sender by post with correct address on it can be deemed to be served on sender unless he proves that it was F not really served. As stated above, the petitioner in his cross-examination has admitted that his address mentioned on the legal notice G sent by the respondent, was correct. In this view of the, matter, the legal notice would be deemed to have been served upon the petitioner.
18. ' Yet there is another aspect of the case. In the case reported as Messrs Shamim Akhtar v. State Life Insurance Corporation of Pakistan Karachi and 2 others (PLD 2005 Karachi 554) while discussing the scope of the constitutional petition in respect of rent maters it was held that the jurisdiction of this, court under Article 199 of the Constitution is extraordinary in nature which is aimed at proper dispensation of justice and to avoid abuse of the process of law. Therefore, normally such jurisdiction is not to be exercised by the High Court to interfere with the discretionary orders of the subordinate Courts, where jurisdiction has been conferred upon it by some special statutes. In the case of Hafiz Shafatullah v. Mst. Shamim khan and another (PLD 2004 Karachi 502), it was observed that it has been repeatedly held that by conferring only one right of appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 the legislature in its wisdom seemed to have tried to shorten the span of litigation in rent cases and in' such circumstances interference by this Court in exercise of its constitutional jurisdiction under Article 199 of the Constitution in judicial orders passed by the Tribunal of competent jurisdiction, merely on the ground that another view of the matter was also possible, would not serve any other purpose but would add to the misery of prolonged litigation for the parties and would defeat the spirit and object of statute.
19. ' In the instant case neither there is any jurisdictional error, nor any perversity, illegality or infirmity was found in the orders passed by two courts below. Needless to mention that constitutional jurisdiction is a discretionary jurisdiction which is meant to foster justice and to remedy the wrong but could not be allowed to be invoked in routine course as an additional remedy to hamper the findings of fact, correctly recorded by the forums below.
20. ' For the foregoing reasons, I do not see any justification to interfere with the concurrent findings of the two courts below; with the result petitions are dismissed in limine. Petitioner is directed to hand over vacant and peaceful possession of the tenements in their respective possession to respondent No, 3 within a period of thirty days.
21. ' Above are the reasons for short order passed on 29-5-2014.