SHAHID KHAN, J.- Through the instant petition, Nisar, (expired during the pendency of the petition, now represented by his legal heirs Muhammad Akram etc, hereinafter, the petitioners), has called in question the judgment/ejectment order of the learned Rent Controller, Malakand at Dargai, dated 30.06.2021, whereby, on acceptance of the written request/petition of the respondents in respect of a commercial unit/shop situated at the vicinity of Dargai Bazar, District Malakand, against the petitioner. The petitioner approached the learned appellate Court for appropriate remedy but the same could not achieved the target and was dismissed.
2. Precisely the facts of the case are that respondents No.1 to 8 filed an eviction petition against the present petitioners in respect of a shop situated in Dargai Bazar of District Malakand, on the ground of default since September 2013 to September 2016.
3. On his appearance, the petitioner denied the claim of the respondents and contested the same by filing his written reply. The divergent pleadings of the parties were reduced by the learned Rent Controller into 09 issues and the parties were put on trial.
4. On conclusion of the trial, the learned Rent Controller arrived at the conclusion that the claim of the respondents is well found, as such, it was allowed vide judgment & decree dated 30.06.2021 with remarks that the petitioner shall vacate the demised premises within a month and the rent arrears since September 2013 till eviction of the petitioner @ Rs.2500/- per month.
5. Being aggrieved, the petitioner approach to the learned appellate Court against the impugned order for appropriate remedy but could not achieve the target as it had the same fate to has been dismissed.
6. It obliged the petitioner to approach this Court through the subject petition.
7. Learned counsel for the parties were heard at length and record gone through with their valuable assistance.
8. Learned counsel for the petitioner is focal & consistent on the proposition that his client right from the day one was intended to furnish the rent arrears and in this respect approached the learned Judicial Magistrate/Civil Judge on 26.06.2021 through a written request but instead of appropriate order to allow the deposit of rent arrears, it was ordered to place the aforesaid application before the learned Presiding Officer/Civil Judge, Dargai, on his arrival. Likewise, Order No.7 dated 27.06.2016.also speak of the fact that the petitioner/tenant attempted to tender/ deposit the rent arrears but vide order dated 27.06.2016 due permission could not avail. Further added, the observations of the learned Rent Controller to knock out the petitioner/tenant on the ground of default is unjust & uncalled for as he desired to pay & tender the rent arrears, if any, at the earliest but due order from the quarter concerned/Court could not avail so as to discharge his legal liability.
9. Went on to argue, although the question of default against the petitioner/tenant does not arise at all but even if it is so, the same can no way be termed as willful default rather it is Technical default and cannot be made a ground for ejection of the petitioner in respect of the demised premises. Concluded, the petitioner can in no way be penalized on the act of the Court as his request, of & on, for deposit of the rent arrears has not been taken into consideration by the Court/Rent Controller.
10. As against it, learned counsel for the respondents is of the view that since long the petitioner has never ever paid or tendered the rent due against him and no step has been taken to oblige his obligation to in time tender/pay the rent in respect of the premises in question. On face of the record, willful and deliberate default on part of the petitioner/tenant has been substantiated and the impugned order of the learned Rent Controller followed by that of the learned appellate Court is based on proper appraisal of the material available on the record and does not need any interference at all by this Court.
11. It is floating fact on surface of the record that the petitioner is the tenant of the respondents in respect of the demised premises. Default in respect of the rent of the premises in question is floating on surface of the record. No doubt, the petitioner may have attempted to discharge his liability and to pay/tender the rent arrears but the record in this regard is silent. In the circumstances, the respondent/landlord may deny the receipt of the monthly rent in respect of the demised premises, the petitioner/tenant may have the option to pay/tender the same in the Court of learned Rent Controller or to tender the same to the landlord through money order so that the conduct of the respondent/landlord as not willing at all to receive the rent for the vested interest could be surfaced.
12. Other than the above, the record is silent as during the pendency of the subject petition, the petitioner/tenant could ever approach any Court of competent jurisdiction for permission to deposit the rent arrears in the Court as he the respondent/landlord was not willing to receive the same. Likewise, option of tendering the rent arears coupled with the monthly rent through Money Order has also not been exercised so that to prima facia substantiate his bona fide.
13. Order No.72 dated 19.04.2021 of the learned Rent Controller/Civil Judge, Dargai, speaks loud & clear that the respondent/landlord approached the Court through a written request for drawl of the rent, if any, has been deposited/tendered by the petitioner/tenant but the office/Nazir reported that nothing as such has been deposited by the petitioner/tenant.
14. In the circumstances mentioned above, both the learned Courts below have rightly passed their respective orders and as such the same neither suffer from any jurisdictional defect or any other material illegality or irregularity. In the case of Muhammad Arshad Khokhar vs. Mrs. Zohra Khanum and others reported as 2010 SCMR 1071 and in the case of Inayat Ullah vs. Zahoor-ud- Din and another reported as 1987 SCMR 1313, the Hon'ble Apex Court has elaborately dilated upon that what is a wilful default and the said criteria is fully applicable to the case in hand.
15. Apart from the above, this Court cannot interfere with in the concurrent findings of learned two Courts below until and unless there has been found any material irregularity or misapplication of law. In the case of Mst. Mahmooda Begum and another vs. Taj Din reported as 1992 SCMR 809, the Hon'ble Apex Court has held: In normal circumstances, the High Court is not supposed to interfere with a finding of fact recorded by a tribunal of special jurisdiction in respect of matters exclusively within its competence, unless there has been a serious misreading or misappreciation of the evidence on the part of the said tribunal, or there has been failure on its part to take into consideration material facts or to apply the statutory law or any principle or rule of law as laid down by the superior Courts.
16. Similar view was also followed by the Sindh High Court in the case titled Muhammad lqbal vs. Mst. Zahidan and 2 others reported as 2013 CLC 1780, where it was observed: "11. It is settled proposition of law that Courts below, in its original and appellate jurisdiction are competent to draw inference, while delivering the judgment and it is not open to interference in Constitutional jurisdiction, unless and until miscarriage of justice is established by the party in the Constitutional petition, thus, High Court would not normally interfere in judgment and decree passed by court of competent jurisdiction for the reason that it was within their exclusive jurisdiction, to believe and disbelieve the evidence, it is worth to add that no Constitutional petition lies when evidence in the case has been properly appreciated and analyzed."
17. To conclude, the conduct & demeanor of the petitioner coupled with the peculiar facts and circumstances of the event in hand, the Court is arrived at the conclusion that the petitioner does not deserve equitable relief, the petition in hand is bereft of any substance, stands dismissed.