2006 PLP 2131 (YLR)

MUHAMMAD SADIQ LEGHARI, J.

The facts leading to present Constitutional Petition are that Bilquis Bano was the tenant of respondents Nos.1 and 2 Mst. Saran Bai and Abdul Samad (hereinafter referred to as "the landlords") in respect of a Flat No.3 First Floor of the building standing on Plot No.SB-54/63 Saddar Karachi (hereinafter to as "the flat" or the "demised premises"). After the demise of Bilquis Bano her legal heir became tenants in respect of the flat. In April, 1979 the landlords filed rent case (No.562/97) for the ejectment of the tenant on the ground of default in payment of rent since September, 1979. The tenant filed written statement denying therein the commission of any default in payment of rent. They pleaded that they paid the rent up to April, 1992 to Abdul Samad against a receipt and thereafter deposited it in the Court in MRC No.768 of 1992.

2. The parties led their evidence. On the side of the landlords the respondent No.2 Abdul Samad recorded his evidence. He denied the payment of the rent since September, 1997 and pleaded ignorance about the deposit of rent by the tenants in MRC No.768 of 1992. He expressly challenged the receipt of rent allegedly issued by him for the month of November, 1990 to April, 1992 claiming it to be forged document. He stated that on 5-11-1990 when the receipt is claimed to have been issued by him he was out of Pakistan.

3. The learned Rent Controller dismissed the rent case by order dated 12-9-1998 repelling the ground of default.

4. The landlords. assailed that order through F.R.A. No.693 of 1998 before this Court. The appeal was later on sent to the District Judge in consequence of the change in the Laws. There it was assigned No.1016 of 2001. The District Judge made over the appeal to IInd District Judge (South) who reversed the finding recorded by the learned Rent Controller accepting the ground of default, by his decision dated 31-5-2002. That decision has been attacked through present constitutional petition.

5. The arguments were heard on 18-5-2005 and the petition was dismissed by short order. Now, I proceed to record the reasons.

6. The key issue is the payment of the rent from November, 1990 to April, 1992 in respect whereof the tenant relied upon a receipt claiming it to have been issued by respondent, Abdul Samad. The learned Appellate Court recorded its finding that Abdul Samad was not available in Pakistan on 5-11-1990 when the receipt is said to have been issued. This finding was recorded by it after examining the copy of the Passport produced by the respondent No.2 in evidence.

7. Mr. Shamim Ahmed Riazi, learned counsel representing the . petitioner contended that the learned Appellate Court misread the entries on the passport of Abdul Samad as those do not show him to be out. of country on 5-11-1990.

8. The respondent's learned counsel had brought the original Passport the copy whereof was already in evidence. The entries on the Passport confirmed arrival of Abdul Samad from abroad on 7th November, 1990. Thus, there is no misreading of the document. Learned Appellate Court has rightly disbelieved the genuineness of the receipt claimed to be for the rent from November, 1990 to April, 1992. Also it is nobody's case that the rent for those months was accepted by the landlords at any later stage so that the question of condonation of the delay impliedly or by way of conduct be considered. Here the position is that the landlords pleaded ignorance even about the deposit of the rent in the Court from May, 1992 and onwards.

9. In view of the above, the findings recorded by the learned Appellate Court does not call for any interference in exercise of constitutional jurisdiction. The above are the reasons for the short order dated 18-5-2005. H.B.T./B-9/K?????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.