AFTAB AHMED GORAR, J.---This judgment is directed against the impugned order dated 19.05.2017 delivered by the court of learned III-Additional District Judge, Karachi [East] in F.R.A No, 128 of 2015 Re. Yousuf Ali v.
Muhammad Fayyaz whereby order dated 21-09-2015 delivered by learned court of V-Rent Controller Karachi [East] in Rent Case No, 92 of 2012 Re. Muhammad Fayyaz v . Yousuf Ali was af firmed.
2. Necessary facts leading to the present petition are that petitioner was inducted as tenant in respect of tenement bearing No,7, located on Ground Floor "ARFAT CORNER " constructed over Plot No,A-649, Block-3, KDA Scheme No,24 Gulshan-e-Iqbal Karachi at the monthly rent of Rs,11,000/= vide a tenancy agreement executed between the parties dated 01.01.201 1 against the secu rity deposit of Rs,100,000/=; the said tenancy agreement as alleged was expired on 30.11.201 1; respondent No,1 made several requests to the petitioner to vacate tenement instead of vacating tenement respondent No,1 tried to tender rent through money order and sent it to the respondent No,1 upon wrong address; thereafter petitioner failed to tender rent for the month of December , 2011 till to date; petitioner sensing situation instead vacating tenement went before the competent civil court and had filed Civil' Suit bearing No, 1413 of 2011 in the court of learned III-Civil Judge, Karachi [East] seeking Declaration and Permanent Injunction with the plea that petitioner had purchased the said tenement to the tune of Rs,15,00,000/= and security deposited was to be adjusted towards part payment and remaining amount will be paid when sale deed would be executed between the parties vide unregistered sale agreement dated 01.12.201 1, said civil suit is pending adjudication but eviction order was passe d in the rent case, First Rent Appeal was filed which too was dismissed assailed hereinabove.
3. Learned counsel for the Petitioner contended that impugned order dated 21.09.2015 and order of rent controller are improper , unjust, unfair , illegal, being null and void has no legal sanctity requires interference of this court; per learned counsel appellate court as well as rent controller without considering the fact of sending money order through post creating regular tenancy; per learned counsel both the courts below erred while interpreting sections 10(3) and 15(2)ii whereby it is provided that default in payment of rent is wilful or technical as such there is no default in payment of rent; per learned counsel in civil suit petitioner made party to the state agent when respondent No,1 refuse to accept rent whereby petitioner started depositing rent in M.R.No,212 of 2011 since 15.12.201 1; per learned counsel both the courts below ignored the basic purpose of administration of justice and decided the rent application on technical and flimsy grounds therefore both orders are liable to be set aside and the instant constitution may be allowed as prayed for .
Learned counsel has relied upon the case law reported as 1986 CLC 561 [Karachi] in the case of Messrs John Traders and 3 others v . Ahmed Ali.
4. Learned counsel for respondent No,1 contended that both the order of courts below are just, proper after evaluating the evidences so brought on record; per learned counsel there is no irregularity and illegality committed in both the orders; per learned counsel the respondent No,1 owner landlord is entitled for the tenement back; per learned counsel wilful and deliberate default has been committed by petitioner in tendering rent as well as vacating demised premises; per learned counsel there is nothing on record to show that estate agent as alleged was examined in rent case from whom the tenant was rented out; per learned couns el the civil suit was filed only to create third charge over the demised premises on a bogus and fraudulent unregistered sale deed which carries no force in the eyes of law; per learned counsel the instant constitution petition is devoid of truth and is liable to be dismissed.
Learned counsel has relied upon the case law reported as 2006 SCMR 1872 in the case of Muhammad Asif Khan v. Sheikh Israr, 2006 SCMR 1501 in the case of Mst. Yasmeen Khan v. Abdul Qadir and 2011 SCMR 369 in the case of Muhammad Sharif v . Vth Additional District and Session Judge (Central) Karachi.
5. Heard and perused.
6. Admittedly , there is no such denial in respect of relationship between landlord and the tenant; wilful default has been committed by tenant in respect of tenement while tendering valid rent to the landlord, petitioner sensing situation beyond his control went before the competent civil court and filed civil suit with the option to change circumstances of rent case. Perhaps petitioner had denied to have challenged ownership but why petitioner choice to file M.R.C. and started tendering rent into MRC otherwise petitioner was claiming ownership by following unregistered sale agreement.
Now the question is whether petitioner is wilful defaulter in payment of rent and is liable to be evicted from the tenement. I have perused the entire record and after scanning order assailed hereinabove, it purports as follows:-- "The appellant has taken a specific plea in written statement before the learned Rent Controller that applicant/ respondent had agreed to have sold out the rented premises to him in presence of witnesses against sale consideration of Rs,15,00,000/. It was further alleged that the applicant/ respon dent had agreed to adjust the security amount of Rs,100,000/= as an advance amount of the sale agreement while the remaining amount of Rs,10,00,000/= would be payable upto December , 2012 and other remaining amount would be payable upto 30.06.2013 at the time of transfer of title documents before the concerned authority , as such written sale agreement was made on 01.12.201 1 and it was also agreed that till completion of sale agreement, opponent/appellant should pay the rent of Rs,11,000/= per monthly only in respect of rented premises, however in order to support this plea, no documentary proof has been filed by the appellant. It is very surprising that a person who is purchasing a shop for sale consideration of a considerably huge amount of Rs,15,00,000/= did not reduce such transaction into writing to avoid any conflict or litigation in future, even he did not produce any witness in whose presence such amount was paid.
"Another important, rather interesting aspect of the matter is that the tenancy agreement involved in this matter bears the name of landlord as Muhammad Fayyaz son of Muhammad Ismail but does not bear the address of landlord. The appellant has taken a plea that he was inducted into tenancy by an Estate Agent but nowhere his particulars are mentioned. Even the appe llant did not produce such Estate Agent before this Court as to his witness to depose on his behalf. More importantly , the appellant filed MRC in the learned trial court wherein as per appellant, he is continuously paying rent. However , it is very surprising that the appellant was paying rent through an Estate Agent as he did not have the address of respondent, how could he filed MRC against the respondent through such Estate Agency . This vital aspect of the matter proves the plea taken by respondent that no money order was sent prior to filing of MRC, as for serving notice of MRC, address was necessary to be mentioned but since the appellant had no address of respondent, he was completely unable to tender the rent through money order first, before filing MRC. Thus, in my humble view, the appellant has violated the provisions of Section 10(3) of Sindh Rented Premises Ordinance, 1979"
7. The bona fide default has been proved by the conduct of the petitioner when petitioner choice to deposit rent in MRC instead to first tender rent to the landlord as is required under the law; as to the contention of learned counsel that petitioner had purchased the demised premises is also belied because there is no registered documentary proof with regard to the transaction as had taken place between the landlord and tenant respectively , therefore I am of the view that petitioner is hiding himself beneath umbrella is liable to be evicted from the tenant.
I am fortified with the case law reported as 2006 SCMR 1872 in the case of Muhammad Asif Khan v. Sheikh Israr, it has been held as follows:-- "---Ss. 10(3) & 15---Ejectment of tenant---W ilful default in payment of monthly rent---Deposit of rent in the office of Rent Controller --Principle--T enant had been continuously tendering rent to landlord through money order but suddenly he started depositing same in the office of Rent Controller ---Landlord filed ejectment application on the ground of default, which was allowed by Rent Controller but High Court in exercise of appellate jurisdiction set aside the eviction order and ejectment application was dismissed-- Validity---Nothing was available on the record to show that landlord ever refused to accep t rent by tendering 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 ---Deposit of rent in the office of Rent Controller by tenant in absence of any proof of refusal by the landlord, would not be a valid tender in the eyes of law---Conduct of tenan t, in circumstances, would be termed to be contumacious as it would operate as an act of harassment to landlord---Rent Controller was justified in passing order of ejectment against tenant-- Judgment of High Court was set aside and tenant was evicted from the premises---Appeal was allowed"
[The underline is mine]
8. As discussed above, the instant constitution petition is dismissed petitioner is directed to vacate the demised premises within the period of thirty (30) days and hand over vacant and peaceful possession to the landlord.
These are the reasons of short order dated 30.10.2018.