' This order shall dispose of Writ Petitions Nos. 2973 and 2974 of 1982 as the same arise out of a similar impugned orders passed by the respondent No 1 in these cases.
2. Nasir Malik petitioner herein, is the son of Mst.t Bibi Noor Fatima, petitioner in the connected petition. Muhammad Hafeez respondent No, 2 is the landlord of two flats Nos. 6 and 8 in house No, 69, Arya Nagar Scheme, Poonch Road Lahore which are occupied by the petitioners, respectively as tenants under him. Nasir Malik petitioner had been paying monthly rent of the flats Nos. 6 and 8 to the landlord. On 28-2-1980 Muhammad Hafeez instituted two ejectment petitions against the petitioners on the ground that they defaulted in making payment of rent for the months of November and December, 1979 and January, 1980. The ejectment petitions were resisted by the petitioners which led to framing of following issues, in each case.
(1) Whether the respondent has committed default in the payment of rent ? OPP
(2) Relief.
' The learned Rent Controller vide his order dated 7-7-1981 dismissed the applications. Those orders were assailed in appeals. The appeals were accepted vide the impugned orders dated 3-7-1982, passed by the learned Additional District Judge, Lahore.
3. Learned counsel for the petitioners contended that the learned Additional District Judge has erred to hold that the petitioners had committed default in making payment of rent, for the disputed period. It was contended that the tenancy being oral the alleged default in payment of rent for the months of December, 1979 and January, 1980 was not committed by the petitioners. It was also submitted that for the month of November, 1979 the petitioners tendered the amount through cheques to the respondent No,
2. He did not get those encashed. The petitioners after issuing notice to him deposited the same in the treasury before the institution of the ejectment petitions. It was further contended that the learned Additional District Judge has ignored the service of notice by the petitioners on the respondent No, 2 and also the factum of depositing the rent before the ojectment petitions. It was also stated that the petitioners are old tenants of the disputed property for the last many years and had never committed default in payment of rent to the landlord. It was next submitted that the ejectment petitions have been filed by the respondent No, 2 on account of annoyance felt by him by the fact that the wife of the petitioner was cited as witness in a criminal case registered against the respondent No, 2 at the instance of Mst. Sanober Begum, another occupant of the building. It was lastly contended that the mode of tendering rent provided under Explanation (ii) to subsection (2) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 is not the exclusive mode; the tender of rent made by means of cheque is also valid tender. It is contended that the learned Additional District Judge has misread the provisions of the law and referred Shabbir Ahmad v. Mst. Kabir-un-Nisa and others in support of his contention.
4. Learned counsel for the contesting respondent, on the other hand, argued that these Constitutional petitions are not maintainable in view of latest pronouncement of the Supreme Court reported as Muhammad Sharif v. Muhammad Afzal Sohail. It is stated that the learned Additional District Judge did not rely on the statement of Maqsood Ahmad, a nephew of the respondent No, 2 who appeared as witness for the petitioners and against his uncle. Learned counsel further submitted that the petitioners had given no reasonable explanation as to why they did not tender the cheques in question to respondent No, 2, when admittedly his shop falls first on the way to that of Maqsood Ahmad (R.W. 2). It was argued that the conclusion drawn by the learned Additional District Judge, Lahore from the evidence on the record even if different than that canvassed by the learned counsel for the petitioners is no ground for interference in the impugned order in writ jurisdiction. It was further stated that mere tender of rent through cheques even if proved does not absolve the petitioners from depositing the amount before the due date. It was asserted that in the instant case the rent for the month of November, 1979 was not paid within time and there is no valid reason for condonation of the default committed by the petitioners. He relied on Muhammad Yunus v. Abdul Hamid and Haji Fida Hussain v. Muhammad Ibrahim Khan in support of his submissions.
5. I have considered the contentions raised by learned counsel for the parties and find that the learned Additional District Judge after appreciating evidence on the record disbelieved Maqsood Ahmad, nephew of respondent No, 2, who allegedly received cheques for payment of the monthly rent of the disputed property and passed on to the landlord. There appears to be sufficient force in the submission of the learned counsel for the respondent that if the amount of rent was tendered by the petitioners for the month of November, 1979 to the respondent No, 2 by means of cheque they did not verify from their Bank as to whether the same was encashed within time, nor deposited the amount before the due date. Undoubtedly the petitioners committed default in making payment of rent for the month of November, 1979. The explanation given for condonation has no substance. The default in payment of rent as envisaged under section 13 (2)(i) of the West Pakistan Urban Rent Restriction Ordinance, 1959 once occurred cannot be wiped away even by subsequent deposits of amount made before filing of the ejectment petitions. Furthermore ; the petitioners in their replies to the ejectment petitions did not plead that they had tendered rent through Maqsood Ahmad, but led evidence to prove that they handed over cheques to Maqsood Ahmad (R.W. 2) for passing on to respondent No, 2, which is indicative of the fact that the evidence led by them is inconsistent with their pleadings. The mere fact that the petitioners are old tenants and had been paying regular rent of the premises to the respondent No, 2 did not absolve them1 2 3 4 from making payment of the rent for November, 1979 before the due date. The other contention o the learned counsel for the petitioners that tender of rent through cheque being a valid tender can only be examined if the petitioners first establish beyond doubt the delivery of cheques to the respondent No,
2. The evidence of Maqsood Ahmad (R. W. 2) has been rejected, which finding cannot be set aside in writ jurisdiction. Learned counsel for the petitioners could not plead lack of jurisdiction in the respondent No, 1 to adjudicate upon the matter. Even if the impugned orders passed by him are held to be erroneous the same cannot be interfered within Constitutional jurisdiction of this Court.
6. There is no merit in these petitions and the same are, therefore, dismissed with no order as to costs. PLD 1975 SC 58 PLD 1981 SC 24() PLD 1975 Lab 1326 1972 SCM R 262