' Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner M/s. Meraj (Pvt.) Ltd. Have impugned the order dated 31-1-2000 passed by Rent Controller/IV Senior Civil Judge, Karachi East and the other order dated 19-10-2002 passed by the 1st Additional District Judge, Karachi East whereby they concurrently held the petitioner was defaulter in the payment of rent and ordered their eviction from rented premises viz. Bungalow No,39, Block Nos.7-8, Darul Aman Cooperative Housing Society, Karachi.
2. Relevant facts leading to this litigation are that on 30th September 1997 respondent No, 1/landlady filed eviction application against the petitioner pleading therein commission of default in payment of rent by the petitioner from July, 1996 till filing of rent application. In the written objections the petitioner did not deny non-payment of rent for such period but they further pleaded that as negotiations for sale of rented premises remained in process between the parties for over one year thus respondent No,1 did not accept rent for the year 19961997 (Rs,72,000) on the pretext that it would become part of sale price.
3. At the state of evidence on behalf of respondent No,1/landlady her father and attorney Muhammad Saeed Ahmed filed his affidavit in evidence wherein he reiterated the plea of non- payment of rent from July, 1996 and further stated that two notices dated 13-8-1997 and 3-9-1997 issued by the landlady in this regard were also refused by tenant. This witness was cross-examined by the other side but nothing material came on record to dislodge this position. On behalf of the petitioner their Managing Director Iftikhar Hussain Qureshi filed his affidavit in evidence wherein he again admitted non-payment of rent froth July, 1996. However, he further stated availability of advance rent of one year amounting to Rs,66,000 with the respondent No,1, payment of property tax and other taxes by him and practice of payment of rent at his convenience without any objection by landlady to meet such default in payment of rent. In his cross-examination this witness gave inconsistent replies to the questions suggested to him and denied commission of wilful default in payment of rent by saying that from July, 1996 onwards he did not pay rent through cheques but paid in cash.
4. Chowdhary Muhammad Iqbal, learned counsel for petitioner vehemently argued that the ground of default against the petitioner was engineered by the respondent No,1 while all relevant true facts were disclosed by the petitioner in their written objections which revealed that they did not commit any deliberate default in payment of rent. He further argued that non-appearance of landlady in the witness-box was fatal to her case but this fact was overlooked by the two Courts below viz., respondents Nos. 2 and 3. In this context learned counsel placed reliance on Syed Abdul Rasheed v.
Mst. Tajunnisa (1982 CLC 954) and Haji Rehmatullah v. Mst. Manawar Jehan (1995 CLC 1117), Regarding plea of practice of lump sum payment of rent, learned counsel placed reliance on Gulzar Begum and others v. Masud Akhtar Khan and others (1988 M LD 938) and asserted that from admission of witness examined on behalf of respondent No,1 it was established that there was not set practice for payment of rent. He also argued that the plea of respondent No,1 taken in the rent application about practice of payment of monthly rent was not sustainable as in terms of the rent agreement dated 27-6-1992 rent was payable in advance on yearly basis.
5. Conversely, Mr. Imran Ahmad, learned counsel for the respondent No,1 at the outset of his arguments challenged the maintainability of this petition on the ground that against the concurrent findings of facts recorded by the two Courts below, Constitutional jurisdiction could not be invoked by the petitioner. To fortify this argument, learned counsel placed reliance on Secretary to the Government of the Punjab, Forest Department. Punjab, Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others (PLD 2001 SC 415) wherein in its exhaustive judgment it was held by the Supreme Court that the High Court in exercise of its Constitutional jurisdiction cannot reappraise the evidence and come to its own independent findings were findings of facts have been recorded by the authority below after giving good reasons in support for the same.
6. On facts learned counsel contended that both the Courts below have carefully examined the pleadings of the parties and the evidence led by them and for valid reasons held the petitioner wilful defaulter in the payment of rent from July, 1996, thus no exception could be taken to such concurrent findings of facts recorded by the two Courts belOw. As to the burden of proof regarding commission of default, learned counsel placed reliance on Allah Din v. Habib (PLD 1982 SC 465) and contended that after initial statement on oath from the side of landlady regarding commission of default the burden had shifted on the tenant to prove that they had paid rent to the landlady, while in the present case it is an admitted position that the petitioner failed to pay rent from July, 1996 onwards.
7. I have carefully considered the arguments advanced by the learned counsel for the parties and perused the case record which reveals that in reply to the allegations of non-payment of rent and commission of default by the petitioner, pleaded in para. 2 of the rent application, the petitioner admitted non-payment of rent in the following words: "The true facts are that the applicant in 1995 proposed to the opponent for the sale of the rented premises. The deal was about to finalize but the applicant took summersault and turned her eyes by resiling from her commitment made with the opponent about the sale price of the rented premises, because the applicant hoped to fetch other prospective buyers on higher sale price.
Negotiation for more than one year has remained in process thus the applicant did not accept the rent for the years 1996-97 on the pretext that the rented premises is being sold to the opponent, hence the rent at the amount of Rs,6,000 (Rs,72,000) would become part of the sale price. The applicant was playing double game inasmuch as that if the rented premises sold to the opponent at the price quoted by the applicant, fine, otherwise, the applicant would be pocketed with ground of default, for one year."
8. In the above circumstances the plea raised by Chodhary Muhammad Iqbal that non- appearance of landlady in the witness-box was fatal to her case has no force as the question of her appearance would have been material only in the situation where the tenant had pleaded payment of disputed rent to her. Further the pleas of practice of lump sum payment of rent or payment of any other amount on behalf of landlady towards property tax and other taxes are also not tenable in law for the short reason that such pleas were not taken by the petitioner in their written objections and thus they were precluded from raising such pleas at the stage of evidence.
The plea of advance payment of Rs,66,000 to the landlady raised by the petitioner seems to be yet another attempt on their part to avoid the consequences of admitted default in payment of rent.
This plea also stands belied from the contents of lease agreement dated 27-6-1992 which only speaks about payment of advance rent of one year from 1-7-1992 to 30-6-1993. Moreover, in the cross-examination petitioner's witness at one stage categorically admitted that no advance was paid to the landlady but later on he again disputed this position. It is pertinent to mention here that though the petitioner has attempted to justify withholding/non-payment of rent from July, 1996 onwards on the pretext of negotiations for sale with the landlady but during the proceedings of the case no where they came forward with any further explanation that how withholding of rent for the period of default, i,e, over one year, could have helped them in finalizing the sale transaction or what nexus it had with the negotiations for sale of rented premises. All these facts and different alternate pleas taken by the petitioner are indicative of the fact that their assertions cannot be believed as correct. I have also gone through the two impugned orders passed by the respondents Nos.2 and 3 and seen that the same are based on proper assessment of the evidence available on record.
9. Besides, the contention of Mr. Imran Ahmed with regard to the maintainability of this petition has also much substance. In this context it may be observed that by conferring only one right of appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 the legislator in its wisdom seems to have tried to shorten the span of litigation in rent cases. In such circumstances interference by this Court in exercise of its Constitutional jurisdiction under Article 199, in the judicial orders passed by the Tribunals, merely on the ground that another view of the matter is also possible, would not serve any other purpose but would add to the misery of prolonged litigation for the parties and would defeat the spirit and object of the statute. The dictum laid down in the case of Secretary to the Government of the Punjab (supra) also postulates similar view and is fully applicable to the facts and circumstances of the present case. No case for interference in the concurrent findings of facts recorded by the two Courts below is thus made out. This petition is accordingly dismissed in limine alongwith pending application.
10. Before parting with this order it may be observed that in case petitioner has deposited any advance rent in M.R.C. No,705 of 1997, as alleged in Ground No,5 of the petition, it will be open for them to withdraw excess rent after vacating the rented premises by moving proper application before the concerned Rent Controller in this regard.