MUHAMMAD IQBAL MAHAR, J.---This constitutional petition is directed against the judgment dated 09.12.2014 passed by learned IVth Additional District Judge Karachi East in FRA No, 101/2014 who maintained the judgment dated 30.04.2014 passed by learned Vth Rent Controller Karachi East in R.C. No, 243/2012, whereby the petitioner/tenant was directed to vacate the premises in question within 60 days.
2. The facts giving rise to present petition are that respondent is a landlord of the subject tenement which was rented out to the petitioner vide tenancy agreement Dated 01/07/1997 against the rent of Rs,645/-, enhanced time to time and lastly as Rs,3000/- per month excluding the utility charges.
The petitioner violated the terms and conditions of tenancy agreement and committed default in payment of monthly rent for the months of July, August, September 2012. It has also come in evidence that the petitioner has neglected to pay monthly electricity charges which have reached at Rs, 107,950/-. It is further averred that the subject premises is required for personal use of the landlord trust, as such ejectment application was filed by the respondent trust on ground of default and personal bona fide need.
3. The petitioner filed his written statement wherein he averred that he was inducted as tenant by Darul Uloom Qadria Rizvia on the basis of oral tenancy agreement against Pugree of Rs,65,000/- and he used to pay monthly rent in time to Zafaruddin Faheed Azmi and Meer Muhammad who issued rent receipts with delay as such he sent legal notice as well as money order to them, however he denied the default in payment of monthly rent. He further averred that he filed MRC No, 139/2012 and has been depositing rent in court. It has also been averred that respondent managed false agreement and fabricated false story to seek ejectment on the ground of default. The petitioner denied the personal need of Darul Uloom Qadria Rizvia.
4. In order to prove its case, the respondent filed affidavit-in-evidence of Hafiz Ata-ur-Rahman, who produced tenancy agreement, authority letter/power of attorney, rent receipts respectively and fully supported the contents of ejectment application. As against above, the petitioner did not put himself into witness box and instead he examined his attorney Murtaza Khan, who filed his affidavit in evidence, copy of general power of attorney, two utility bills in the name .of Dar-ul- Uloom Qadria Rizvia, copies of letters, legal notice, reply thereof, receipt of money order, receipt of return of such money order, letter written to Post Master, Malir, for issuance of reasons of return of money order, certified copy of memo of MRC and thereafter his side was closed.
5. After hearing the counsel for the parties, learned Rent Controller passed impugned judgment dated 30.4.2014, which was challenged by the petitioner in FRA No, 101/2014 but the same was also dismissed by learned Appellate Court, hence he preferred instant petition.
6. Learned counsel for the petitioner contended that the impugned judgment passed by learned Rent Controller and maintained by learned Appellate Court are against the law and facts of the case; that learned Courts below have not considered that the rent proceedings were initiated by the Trustee of Darul Uloom Qadria Rizvia trust but trust deed has not been brought on record; that the petitioner was inducted as tenant in the subject shop by Darul Uloom Qadria Rizvia and not by the Trust; that the respondent has failed to produce trust deed; that the petitioner used to tender the rent amount to one Zafaruddin Faheed Azmi and Meer Muhammad, the representative of - Darul Uloom Qadria Rizvia Trust and has never committed default in payment of rent, but said Zafaruddin Faheed Azmi used to issue receipts with delay for which petitioner had sent letters, to Zafaruddin Faheed Azmi; that the petitioner tendered rent which was refused on different pretexts and after refusal of Zafaruddin Faheed Azmi to receive rent till October, 2012, the rent was tendered through money order which was too refused hence the petitioner started depositing in MRC No, 139/2012 before learned Rent controller, therefore, the impugned judgment dated 09.12.2014, passed by learned Additional District Judge Karachi East in F.R.A. No, 101/2014 maintaining the judgment of learned Rent controller is liable to be set aside. In support of his contention he relied upon case of Abdul Rayyaz Khan v. IlIrd Additional District Judge Karachi, South and 4 others (2012 CLC 793), Kalsoom Akhtar and others v. Fazal Noor and others 2000 M LD 1653 and Sirajuddin v. Mst. Jamilan and another (PLD 1997 Lahore 633).
7. Learned counsel for the respondent while refuting the contentions raised by learned counsel for petitioner submitted that there are concurrent findings of both the courts below and there is no jurisdictional error or any illegality or infirmity in impugned; that Darul Uloom Qadria Rizvia is an institution, having good reputation, where many poor and helpless children are getting Islamic education; that the petitioner was habitual in tendering the rent with delay, which issue was taken up by the Trust and Hafiz A ta-ur-Rahman was authorized to file the proceedings against the petitioner vide resolution dated 5.10.2012; that the petitioner was well aware of the Trust status of Darul Uloom Qadria Rizvia; that the petitioner's attorney admitted his presence at the time of execution of tenancy agreement in his cross-examination and the relationship with the Darul Uloom Qadria Rizvia has also not been denied and that Darul Uloom Qadria Rizvia Trust has already suffered heavy loss. He, therefore, prayed for dismissal of instant petition. He relied upon case of Messrs Diamon Rubber Mills through General Manager v. Syed Amir Ali and 3 others (2005 YLR 2158) and Muhammad Sharif and another v. Muhammad Afzal Sohail and others (PLD 1981 Supreme Court 246).
8. I have considered the submissions put forward by the learned counsel for the respective parties and have examined the evidence and impugned judgments passed by courts below minutely.
9. The evidence of respondent is consistent on the point of default and personal bona fide use and no inconsistency has been pointed out by learned counsel for the petitioner to show that the act of respondent was tainted with malice. On the contrary the petitioner himself in his cross- examination has admitted the default. .Nothing has been brought in evidence in respect of alleged amount of Pugri, as neither any receipt has been produced nor any witness has been examined, on the contrary it has been denied by the respondent in his cross-examination. Learned appellate court has observed that:-- "Appellant took the plea that the proceedings are not filed by said representative. However this fact has come on record that respondent filed the rent proceedings through trustee and has brought on record the copy of resolution in such regard. Such resolution further manifest that the same is signed by Zafaruddin Faheed AzmiBesides the above, reply of the legal notice sent by said Zafaruddin Faheed Azmi further clarify his status as representative of the Darul Uloom Qadria Rizvia and not the landlord in his own right. Appellant has further relied upon his deposit of rent in MRC No,139/2012. The description of opponent provided in such MRC further manifest that appellant has pleaded his tenancy relationship with Darul Uloom Qadria Rizvia through its representative wherein appellant has further described "or through its representative" which manifest appellant's personal knowledge as to do his relationship. In view of the* above, I am of the humble opinion that the dispute as to the relationship was contested on base-less self contradictory stance For the default of monthly rent of the months July, August, September, October and November, 2012. Appellant has contested that he tendered the rent in time but the same was not accepted under pre-planned scheme to get technical default. Appellant has contended that he sent the rent through money order and on refusal deposited the same in Miscellaneous rent case. Appellant remained failed to get examine the post Master in proof of his contention raised at the one hand and on the other the money order was sent for four months and for five months in October and November, 2012. For four months rents there remain an established default in payment of rent. It is if read with the earlier late rent payment of the respective months in the year 2011 and 2012 the same cannot be termed as a mere technical default rather appeared as wilful and deliberate default in payment of rent. Appellant has contested that he had paid Pugri amount of Rs,65,000/-. It is noted with care that the same stance is denied by the respondent whereas appellant remained failed to establish his such claim. Appellant admitted in his cross-examination that he failed to bring on record any documentary proof which could suggest that the rented premises had been acquired against Pugri amount of Rs,65,000/-. In view of the above discussion in my humble view case law relied upon by the learned counsel for appellant are distinguishable to the facts and circumstances of the case."
10. Manifestly, the findings of facts have been recorded by two courts below which are based on appreciation of evidence and in my humble view there appears no misreading or non reading of evidence. More over I also do not find any illegality in the impugned judgments passed by both the courts below which are based on evidence. Learned counsel for the petitioner has failed to point out any illegality or infirmity or perversity in the impugned judgments or even jurisdictional defect therein attracting exercise of jurisdiction by this Court under Article 199 of the Islamic Republic of Pakistan 1973. It needs no reiteration that constitutional peyition cannot be heard as an appeal from a sub-ordinate court nor can embark upon reappraisal of evidence. The Court has only to see jurisdictional defect or illegality floating on the surface. In such view of the matter I am of the considered opinion that no interference in the extra ordinary constitutional jurisdiction is warranted in the circumstances of instant case. In this respect reliance can be placed on the case of Muhammad Sharif and another v. Muhammad Afzal Sohail and others supra. The case law cited by learned counsel for the petitioner has no relevancy to the facts and circumstances of instant case.
11 Accordingly the petition being devoid of merits is dismissed. The petitioner is directed to vacate the subject shop and hand over its vacant possession to the landlord within 60 days from the date of this judgment.