P L D 2007 Karachi 178 (PLP)

MUHAMMAD MOOSA K. LEGHARI, J.

By this order I propose to dispose of above-noted two Constitutional Petitions as the facts and parties in both the petitions are the same. The case has a chequered history. Precisely the facts relevant for the purpose of deciding these petitions are; that the petitioner is the tenant of respondents Nos.1 to 3 in respect of Shops Nos.2 and 3 and Flats Nos.7 and 8 situated on Plots Nos.677, 678, Central Commercial Area, Block-2, P.E.C..H.S. Karachi East. The respondents Nos.1 to 3 filed two ejectment applications bearing No.519 of 1997 and 520 of 1997 against the petitioner which were allowed vide judgments both dated 13-4-2000 by VI-Rent Controller, Karachi East. On appeal this Court vide order dated 27-3-2001 remanded the case to the Rent Controller with direction to decide the matter afresh. The said judgment was challenged before the Honourable Supreme Court which in turn remanded the case to the Appellate Court. Due to insertion of section 21-A in the Sindh Rented Premises Ordinance, the appeals were remitted to be heard and disposed of by the District Court. However it seems that, during the pendency of the appeal, respondents moved an application under section 16(1) of Sindh Rented Premises Ordinance, 1979 to direct the petitioner to deposit arrears of rent which was allowed by Appellate Court vide order dated 31-5-2003 and the petitioner was directed to deposit the arrears within one month. Thereafter the appeal was also dismissed vide order dated 1-4-2004. The order dated 1-4-2004 whereby the appeal was dismissed was challenged in Constitutional Petition filed before this Court. Ultimately the appeal was disposed of and the matter was remanded to the appellate Court with directions to decide, in the first instance, the application under section 16(2) S.R.P.O. 1979. Consequently, vide order dated 27-1-2005 the said application was allowed, the defence of the petitioner was struck off and the petitioner was directed to hand over possession of the premises to the respondents within sixty days. Against that order the petitioner has invoked the constitutional jurisdiction of this Court by filing these petitions.

2. The contentions advanced at the bar have been considered and the material placed on record has been perused.

3. Learned counsel for the petitioners has relied upon the case of Lt. Commdr. (Retd.) Syed Askari Hasan v. Mst. Zubeda Khanam 1984 SCMR

542. It must be stated at the outset that in the above cited case, it has been held by the apex Court that the powers of appellate authority under section 21 (2) of Sindh Rented Premises Ordinance, 1979 are very wide and untrammeled by any restrictions and no penalty has been provided for non-compliance with the condition on which any order of stay is granted. There may be, no cavil with the rule propounded by the Honourable Supreme Court. But to the hard luck of the petitioner the citation is absolutely misconceived and utterly irrelevant to the facts of the case in hand. In the instant case, the appellate Court, on the application of the landlord, after providing full opportunity to petitioner/tenant passed an order dated 31-5-2003 thereby directing the petitioner to deposit the arrears of rent. Said order was not complied with. Consequently the respondent/landlord moved an application dated 17-10-2003 under section 16(2) S.R.P.O., 1979 praying therein for striking off the defence of the petitioner/tenant. Such application was disposed of, after due notice to the petitioner and entertaining and hearing his objections.

4. In the impugned judgment dated 27th January, 2005 passed by the learned III-Additional District Judge, Karachi East, it has clearly been observed that the, "office has reported that the appellant has not deposited the arrears of rent". Nothing has been placed on record to controvert the above finding. Neither in the appeal, nor during the course of arguments learned counsel for the petitioner disputed such fact. The provisions of section 16(2) are mandatory in nature. Subsection (2) of section 16 of S.R.P.O., 1979 provides that, "where the tenant has failed to deposit the arrears of rent or to pay monthly rent under subsection (1) his defence shall be struck off and the landlord shall be put into possession of the premises" (Emphasis laid). In the circumstances, the impugned judgment is quite just and proper. Indeed the appellate Court was vested with all the powers of Rent Controller, and the order was legally valid. No perversity, infirmity, error of law, transgression of jurisdiction or lack of jurisdiction has been noticed or pointed out to warrant any interference and/or to declare the impugned judgment illegal, invalid or coram non judice.

5. Needless to emphasize that the jurisdiction conferred upon this Court under Article 199 of the Constitution is exercised in the aid of justice, it cannot be exercised for perpetuation of ill-gotton gains. If any reference is needed, case of Abdul Haq Indhar v. Province of Sindh 2000 SCMR 907 would suffice, yet one may refer to Nawab Sayed Raunaq Ali's ease reported in PLD 1973 SC

230. In the circumstances, there appears no justification to exercise extraordinary constitutional jurisdiction of this Court. The petition being absolutely meritless is liable to be dismissed and is accordingly dismissed in limine along with listed applications.

6. From the perusal of the material placed on record, it reveals that the respondents/landladies have been subjected to uncalled for and unwarranted agony of protracted litigation for the last several years viz. evidently since 1997. This manifestly misconceived petition has been filed with the sole purpose of causing undue harassment to the respondents/landladies and to linger on the proceedings for malicious reasons, so as to deny/delay the legal rights of the respondents. Besides, on account of such frivolous and baseless litigation, the precious time of this Court has also been wasted. In the given circumstances, the petitioner by his own conduct has rendered himself liable to cost. Accordingly a cost of Rs.20,000 is imposed upon the petitioner to be paid to the respondents/landladies within two months of the passing of this detailed order. Above are the reasons for short order passed on 11-5 2006. H.B.T./S-3/K Petition dismissed.