' ABDUL RASOOL MEMON, J.--- Through this petition, the petitioners have impugned the orders passed by respondents Nos.2 and 3, whereby ejectment application filed by the respondent No.1 against the petitioners was allowed in Rent Case No.231 of 2007 by the respondent No.2 and same order was upheld by the respondent No.3 in F.R.A. No.314 of 2009 and the petitioners were directed to vacate the demised premises and hand over the possession to the respondent No.1.
2. The facts of the case as pleaded by respondent No.1 (hereinafter will be referred as landlord) in his rent application are that he is the land lord of Flat No.402, Al-Rehman Apartments, Mian Jamaluddin Afghani Road, Sharafabad, Karachi (hereinafter referred as demised premises) to petitioner No.1 (hereinafter referred as tenant) in the month of February, 1999 on monthly rent of Rs.6500 payable in advance under a lease agreement. It is also the case of landlord that the tenant paid Rs.19500 to the landlord on account of security deposit so also paid Rs.58500 being rent of 09 months commencing from 16-3-1999 to 15-12-1999, thereafter the tenant has committed default from 15-12-1999 to May, 2007 of 89 months and 15 days. It is also alleged that the petitioner No.1 (tenant) has sublet the property in question in favour of petitioner No.2 in the month of January, 2007.
3. The petitioners Nos.l and 2 filed their written objections and have admitted the relationship of landlord and tenant and have stated that landlord refused to accept rent and issue the receipts of rent, therefore, they have deposited the rent in M.R.C. No.335 of 2006. Prior to it, the rent was sent through money order which was refused by the landlord. They have denied to have committed any default in payment of rent and for subletting, it is pleaded that the petitioner No.2 is brother of petitioner No.1 and they both are residing together.
4. On the pleadings of the parties, the Rent Controller framed the following points for determination:-
(1) Whether the opponent has committed default in payment of month rent in respect of rented premises/flat No.402, Al-Rehman Apartments, Main Jamaluddin Afghani Road, Sharafabad, Karachi?
(2) Whether the opponent subletted the premises in question to the opponent No.2?
5. The learned Rent Controller vide order dated 10-11-2009 answered both the points in favour of landlord the respondent No.1 and petitioners preferred the First Rent Appeal where the learned 1st Additional District Judge, Karachi East upheld the findings of Rent Controller on point No.1 while reversed the findings of Point No.2, vide judgment dated 14-7-2010, thus both orders are assailed before this court in this constitutional petition.
6. The learned counsel for the petitioners has argued that the findings of both courts are based on conjectures and surmises and they have failed to appreciate that after expiry of 9 months, the tenant started to pay the rent to the landlord but she never issued any receipt; that there was word against word on the point of default, therefore, burden is on the landlord to establish issuance of such receipt to the tenant which has not been proved by documentary evidence. There is admission on the part of attorney of petitioner that no receipt was issued to the petitioner No.1. The Rent Controller should have placed evidence of both parties in even scales and conceded the benefit of certainty to tenant rather than to landlord who had not been issuing rent receipts. He has contended that the sufficient evidence on the part of petitioner tenant has been brought on record to prima facie show that the respondent No.1 did not accept the money orders, therefore, the rent was validly deposited in the M.R.C. By the tenant, therefore, both the Courts below have failed to consider the material evidence brought on record in favour of the petitioners, hence this Court in its constitutional jurisdiction has powers to set aside the concurrent findings of two Courts, which are based on misreading of material evidence. In support of his contention, learned counsel has placed reliance on cases of 'Muhammad Zaman v. Yaseen (1986 CLC 1282), 'Amin Master (Aminuddin) v. Abdul Rashid' (1986 CLC 1551) and case of 'Habib Ahmed v. Liaquat Hussain' (PLD 1985 Karachi 741).
7. Learned counsel for the respondent No.1 has contended that sufficient material was available to prima facie show that the tenant has failed to pay the rent after expiry of 15-12-1999 when the period of advance rent paid for a ,period of 9 months have lapsed as the rent was not paid after December, 1999, therefore, question of issuance of receipt does not arise. He has contended that the very tender of the rent through money order has not been proved. It was incumbent upon the tenant to have proved that the landlord ever refused to accept the rent by tendering so as to entitle or give any justification to the tenant for sending the same through money order. Moreover, the tenant has failed to prove that the landlord has refused to accept the rent and has also failed to examine Post Master in support of money order thus the tenant without offering the rent to the landlord in first instance deposited rent with the Rent Controller, it would be treated as default in payment of rent on the part of tenant. In support of his contentions, he has relied upon the cases of 'Mst. Siddiqa Begum and others v. Irshad AU Shah' (PLD 1999 Karachi 311), 'Almas Khan v. Mrs. Bano through attorney and 2 others' (PLD 2009 Karachi 268), 'Mst. Nargis Bano through Attorney v. A.R.
Eqbal and 2 others' (2008 YLR 10), 'Noman Ahmed v. Mrs. Ghazala Iqbal (1996 MLD 1717), 'Arshad Khan v. Mrs. Fauzia Nasir and 2 others (2005 CLC 787), 'Feroz Khan v. Syed Zoha' (1996 CLC 949), 'Mrs. Tahira Dilawar AU Khan through Attorney and 2.Others v. Mst. Syeda Kaneez Sughra and 2 others' (PLD 2007 Karachi 50), 'Mst. Yasmeen Khan v. Abdul Qadir and another' (2006 SCMR 1501), 'Muhammad Asif Khan v. Sheikh Israr' (2006 SCMR 1872), 'AU Muzaffar through L.Rs. v. Syed Muhammad Ali Abedi through L.Rs. And others' (2006 CLC 379) and 'Zulficiar Hussain v. Mrs. Tazeen Chaudhry' (1986 CLC 393).
8. I have given careful consideration to the arguments and gone through the relevant papers of the record.
9. It is the case of the respondent No.1 in his rent application that the petitioner paid the rent in advance from 16-3-1999 to 15-12-1999 and thereafter committed default in payment of rent. The petitioners in their written statement in para No.4 have stated that the rent was paid to the respondents for the aforesaid period after the month of December, 1999 but the receipt was not being issued by the respondent No.1, therefore, the rent was sent through money order on the refusal of the same by the respondent No.1, they have deposited the rent in M.R.C. No.335 of 2006.
So far as payment of rent prior to deposit of the rent in M.R.C., there is word against word, however, it is the case of the petitioners that after refusal of the rent by the landlady, it was tendered through money order. Copy of money order was produced in rent case at Exh.O/3, it is dated 31-8-2006. The name of sender is shown thereon as Atif Ali, the petitioner No.1 but no name of the person to whom the money order is being sent is mentioned on the reverse of the coupon. Not only this but no amount is mentioned and so also it does not show endorsement of concerned Postman for refusal by landlady. So to prove the tender by the money order, it was incumbent upon the tenant to have produced Postman concerned or any other person in evidence to prove that it was landlady who has refused to accept such rent and in absence of such evidence it could not be said that the landlady has refused to accept the said money order. Mere filing of report of remittance of money order which even does not disclose the refusal on the part of respondent could not be treated as authentic documents. 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. In the instant case not only the receipt which is produced does not contain the name of the landlady in the coupon, no amount ismentioned, even to prove the said refusal on the part of the respondent No.1, the Post Master was also not examined and petitioner directly deposited the rent in Court without refusal by the landlord to accept the (rent) amount. In such circumstances in the case of Muhammad Asif v. Shaikh Israr (2006 SCMR 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 view of the above without offering the rent to the landlady petitioner in first instance deposited rent with the Rent Controller, it would be treated as default in payment of rent on the part of tenant therefore, finding of Rent Controller and Appellate Court on the point of default does not suffer from any illegality or irregularity and is hereby maintained. With profound respect for the proposition laid down in the cases relied by the learned counsel for the petitioner, but the same are not applicable to the circumstances of this case.
12. Reverting to the point of subletting the finding of appellate court has not been challenged by the respondent No.1 in petition and the same also does not suffer from any illegality, irregularity or misreading of evidence, therefore, the same is maintained.
13. In view of the above circumstances, I am of the opinion that no constitutional petition in rent matters shall be entertained until and unless there is jurisdictional error committed by Courts below or exercise of jurisdiction is perverse or is in arbitrary manner so also based on ignorance of the material available on record or violation of any provision of the law. Moreover, in a case of Shakeel Ahmed 2010 SCMR 1925 the Hon'ble Supreme Court 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, hence in view of the above, the Constitutional Petition merits no consideration and stands dismissed accordingly.