1. ' HAMID ALI MIRZA, J.---This is a civil petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan for leave to appeal directed against the order, dated 22-12-1999 passed by a learned Single Judge of the High Court of Sindh at Karachi, whereby First Rent Appeal No,553 of 1999 was dismissed in limine, maintaining the order of ejectment against the petitioners.
2. ' The brief facts of the case are that the respondents filed an application under section 15(2) of the Sindh Rented Premises Ordinance, 1979 against the petitioners for their ejectment from Shop No,4 on Plot No,1-A, Modren Cooperative Housing Society, Shaheed-e-Millat Road, Karachi on the ground of default in payment of rent from February, 1994. The petitioners filed a written statement wherein they denied all the averments made in the eviction application. The respondents filed an application under section 16(1) of the Sindh Rented Premises Ordinance, for deposit of arrears of rent as well as the future rent. The petitioners filed objections stating therein that they had deposited the rent in Miscellaneous Rent Case No, 273 of 1994. The Rent Controller passed an order, dated 23-12-1997 directing the petitioners to withdraw amount of rent deposited in Miscellaneous Rent Case No,273 of 1994 and deposit the same and the future monthly rent in Ejectment Rent Case No,313 of 1995 till the final disposal of the case. The respondent moved an application under section 16(2) of the Ordinance for striking off defence of the petitioner-tenants and the Controller, by order, dated 18-11-1998 struck off the defence and directed them to vacate the shop premises within 30 days of the order on the ground that they had failed to comply with his order, dated 23-12-1997. The petitioners preferred First Rent Appeal 553 of 1991 (Ashiq Ali and another v. Mehar Elahi and others) before the High Court against the orders, dated 18-11-1998 and 28-9-1999, which was also dismissed.
3. ' We have heard the learned counsel for the parties and perused the record and the proceedings of the case.
4. ' The learned counsel for the petitioners contends that no default in payment of rent was committed by the petitioners as they had been depositing the rent in Miscellaneous Rent Case No,273 of 1994. He further submits that the mere fact that the rent was not deposited in terms of the order, dated 23-12-1997 passed by Rent Controller by the petitioners would not by itself amount to default in the payment of rent when the report amount was deposited in Miscellaneous Rent Case No,273 of 1994. He submits that at the most it could be a technical default. He places reliance upon Abdullah Ghanghro and another v. Mst. Tahira Begum and another (1988 SCM R 970) and Noor Muhammad v. Mehdi (PLD 1991 SC 711).
5. ' The learned counsel for the respondents submits that the order under section 16(1) was passed on 23-12-1997 and the order under section 16(2) of the Ordinance was passed on 18-11-1998 by the Rent Controller, but no appeal against the order under section 16(2) of Sindh Rented Premises Ordinance striking off defence was preferred by the petitioners. He further submitted that Execution Application No,3 of 1999 was filed by the respondents to which petitioners filed objections. The executing Court after hearing passed an order, dated 28-9-1999 whereby execution application for eviction of the petitioners was allowed, against which the petitioners preferred First Rent Appeal No,553 of 1999. He submits that the order, dated 18-11-1998 of eviction attained finality, which could not be reversed/set aside by the executing Court, therefore, the appeal against the order, dated 28-9-1999 passed by the executing Court could not have been appealed when the initial eviction order, was not challenged in appeal in time and the same had attained the finality.
6. ' Admittedly, the petitioners neither withdrew rent amount deposited by them in Miscellaneous Rent Case No,273 of 1994 for the purpose of depositing the same in Rent Case No,313 of 1994, nor they deposited rent in terms of the order, dated 23-12-1997 passed under section 16(1) by the Rent Controller, therefore, there was non-compliance of the order of the Controller by the petitioners.
7. There appears to be no ambiguity or confusion with regard to the order, dated 23-12-1997 passed by the Rent Controller. The order, dated 23-12-1997 is specific and unambiguous, therefore, there was no justification for the petitioners not to deposit arrears and future rent in terms of the order passed, consequently, non-compliance of it was wilful and deliberate. In the circumstances, it cannot be said that the default in payment of rent was a technical one. The facts of the case-law cited are quite different and distinguishable to the facts of the instant case. It may also be observed that if the petitioners were of the view that there was no noncompliance in the deposit of rent in terms of order, dated 23-12-1997, they could have challenged the subsequent order of eviction, dated 18-11-1998 in appeal in time, which was not done and the eviction order, attained finality, considering that the executing Court was not competent to go beyond the decree/order of eviction.
8. In view of the aforesaid reasoning, concurrent findings of two Courts below, we do not find merit in this petition, consequently, leave is refused and the petition is dismissed. However, petitioners are given three Months' period to vacate the shop premises subject to deposit of rent and other charges.