ZULFIQAR AHMAD KHAN, J.---This constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, has been filed by the petitioner against concurrent findings of the Courts below in rent proceedings.
2. Brief facts of the case are that petitioner was admittedly tenant of a shop bearing No.1, Block-B, in Azra Market, Hirabad, Hyderabad, constructed over C.S. No.A/2331, at the rate of Rs.15,00/- per month under the tenancy agreement dated 09.01.1999. The landlord (respondent No.1) initially filed an application before 1st Senior Civil Judge/Rent Controller Hyderabad, being Rent Application No.13/2008, on the ground of default in the payment of monthly rent. The Rent Controller after hearing the parties and considering the evidence, came to the conclusion that default in fact was on the part of tenant (petitioner), hinging on the fact that the rent from August, 2007 onwards was sent through money order on 18.01.2008, after lapse of five months. An appeal was preferred against said order where the appellant's counsel took the shelter of Section 15(2)(ii) of Sindh Rented Premises Ordinance, 1979, to contend that under the provision of said clause, the window of 06 months delayed payment is made available to the tenant, therefore, the learned Rent Controller's findings were not based on the true ,appreciation of the law.
3. By referring to the provisions of Sindh Rented Premises Ordinance, the appellate Court reached to the conclusion that since the said provision required the tenant to claim the benefit on the first date of hearing, which was not done in the instant case by the tenant, therefore, benefit of said proviso could not be extended to the tenant.
4. Learned counsel for the petitioner took this Court at length through the orders passed by Courts below and the relevant provision of Sindh Rented Premises Ordinance, 1979. Besides the provision of Section 152(ii) as discussed and dilated upon by the appellate Court, he while by placing reliance on Section 21(1-C) contended that in the circumstances at hand, it was the duty of the appellate Court to have a compromise reached in between the parties, rather than supporting the order of the Rent Controller. He also submitted that since the said agreement did not comply to the provision of Section 5 of SRPO as not having been sealed by the Rent Controller, the landlord could not claim any benefit arising thereon.
5. By referring to Clause-7 of the Rent Agreement, he contended that from the language of the said clause, it is apparent that the arrangements between the landlord and tenant was on the basis of Pagri as the said clause clearly sets out for premium to be paid to the landlord upon transfer of tenancy rights. The learned counsel in support of his assertions, placed reliance on 1988 MLD Karachi 1587 as well as 1986 SCM R 441 and also supplied the Courts copies of cases reported as 2008 CLC 1499, PLD 2007 SC 504, 2008 CLC 869 and 2004 SCM R 1773. It was also contended that there was no default on the part of the tenant, who made numerous attempts to make payment of the monthly rent to avoid default in the period of August 2007 to December, 2007, and he eventually became successful in sending the rent by money order on 28.01.2008.
6. To the contrary, learned counsel for respondent/landlord submitted that tenant has caused endless pains to the landlord and was a habitual defaulter, who never paid the rent in time. He referred to Paragraph No. 5 of the affidavit-in-evidence filed by tenant wherein the tenant has admitted that he paid the rent for the month of July, 2007 on 30.07.2007, which per counsel is in clear violation of the Rent Agreement that required the tenant to pay rent before 5th of every month. The counsel further submitted that compromise is not mandatory as there is word "may" other than "shall" in the text of the relevant Section. He placed reliance on 2016 CLC 1348 to substantiate his arguments in this regard. With regard to the position taken by learned counsel for the petitioner viz-a-viz Section 15(2)(ii) of SRPO he stated that this issue is rightly dealt at the appellate forum, which has declined to give any benefit to the petitioner. He further submitted that the instant petition filed against concurrent findings of the Courts below in rent matter has extremely narrow scope and cannot be treated as an appeal.
7. To me, as to the issue of giving benefit of Section 15(2)(ii), the appellate Court has considered this aspect at length and even has taken care of case law presented in this regard and has appropriately reached to the conclusion denying the claim of the tenant under Section 15(2)(ii) on the ground that the tenant did not admit the claim on the very first date of hearing admitting default in payment of the rent. The appellate Court while making appropriate mention of the learned Rent Controller's judgment in Paragraph No.6 also come to the just conclusion that since the tenant for the first time made payment in the Court in respect of the rents payable for the months of August 2007 to January 2008 only on 08.01.2008 through money order, therefore, a clear case of default is made out. Even, thereafter the payment of the rent for January 2007 was deposited in Court only on 12.02.2018, which again was a default, therefore, I have no reason to differ from these concurrent findings.
8. With regard to the assertion of learned counsel for the petitioner that the agreement had a built in provision to camouflage a Pagri transaction under Clause-7, which fact is also admitted in Paragraph No.3 of the memo. of petition where the petitioner admitted that he had a Pagri relationship with the landlord. In this regard, reference could be made to the case of M.K.
Muhammad and another v. Muhammad Aboobakar (1991 M LD 801) where charging of Pagri or a premium on continuation or renewal of a tenancy agreement was declared as one of the reason for the promulgation of the Sindh Rented Premises Ordinance, 1979, and being an unfair practice, all Pagri arrangements were held to be void and not binding on the parties, therefore, petitioner cannot take benefit of this claim also.
9. With regards failure to register or have sealed the agreement under section 5 of SRPO it has been held in a number of cases that provisions of section 5 are procedural in nature and do not specify any penalty for non-compliance (1994 SCM R 1012 and 1999 SCM R 2771). Thus no benefit could be given to the petitioner in this regard also.
10. This being constitutional petition, in the view of celebrated case of Muhammad Lehrasab Khan v.
Mst. Aqeelun-Nisa and 05 others (2001 SCM R 338), the window made available to parties under Article 199 of the Constitution in matters relating to rent is extremely narrow. The Apex Court discouraged the tendency of the Courts below to consider or appreciate evidence in such matters or to disturb the findings of facts by Court below or to let the High Court to interfere in such manners except if it reaches to the C conclusion that the findings were based on non-reading or misreading of evidence, Erroneous assumption of facts, misapplication of law, excess or abuse of jurisdiction or arbitrary exercise of powers. The jurisdiction of High Court in such matter is limited by issuing writ of certiorari and to correct any wrong committed by the appellate authority. This view has been upheld by latest judgment of Honourable Apex Court in a case of Wagar Zafar Bukhtawari and others v. Mazhar Hussain and others reported as PLD 2018 SC 81.
11. In the given circumstances, after careful consideration of the material on record and the evidence, I do not find any occasion to interfere with the concurrent judgments of the Courts below, which are accordingly maintained as the same do not fit in the exceptions laid down by the Apex Court in the above cited judgments.
12. The petition is accordingly dismissed with no order as to costs.