2019 PLP 22 (CLCN)

FAHIM AHMED SIDDIQUI, J.

By filing the instant petition, the petitioner has challenged the concurrent findings of two forums below, i.e. learned Rent Controller-II, Karachi South and learned Additional District Judge-I, Karachi South in respect of rented premises viz. a space of 1830 square feet on second floor in State Life Building No. 1-C, State Life Square, I.I. Chundrigar Road, Karachi.

2. It is the case of the petitioner that respondent No. 1 filed an ejectment application on the ground of default in payment of rent in respect of aforesaid premises. It was the claim of respondent No. 1 that the rent of the premises was Rs. 5215.50 and the petitioner committed default since December 1987 until 28 February 1989 and a considerable amount for rent is due. According to respondent No. 1, the petitioner sent a pay order No. 102338 dated 07-03-1989 for a sum of Rs. 90,000/- in account of rent without mentioning the duration of rent. The said amount was accepted under protest and under covering letter with receipt No.29237 dated 05-06-1989. As the said amount was received under protest; therefore, the respondent No.1 filed an ejectment application against the petitioner which was allowed by the learned Rent Controller by order dated 11-12-1995. An appeal against the said order was preferred but the same was also disallowed by the learned Additional District Judge-I, Karachi South under his judgment dated 20-10-2005. Ultimately, the petitioner filed the instant constitutional petition questioning the validity and legality of the findings of both the forums below.

3. The counsel for the petitioner, while assailing the impugned order and judgment, says that both the forums below could not appreciate the evidence produced before the learned Rent Controller. According to him, it is a good case of misreading and non-reading of evidence besides improper appreciation of the available evidence in the record. He submits that respondent No. 1 used to collect rent in lump-sum basis and regarding this practice, the original receipts of lump-sum payment have been produced during trial but the learned Rent Controller did not consider the same. Regarding the period of default, the contention of the learned counsel for the petitioner is that the respondent No. 1 claimed defaulted amount to a tune of Rs. 78,232.50 while it is an admitted position that an amount of Rs. 90,000.00 was paid through the pay order and the same was acknowledged by respondent

1. He further submits that the rent application was liable to be dismissed on the ground that the earlier power of attorney granted to Mr. M. Jaffar Hussain Siddiqui was defective and having no authority under the resolution of the Board of Directors. According to him, the signatory of Ejectment Application was not competent to sign the same due to defective power of attorney.

4. On the other hand, the learned counsel for the respondent No. 1 while supporting the impugned order/judgment makes a submission at length. According to him, the Ejectment Application was filed under section 15(2)(ii) of Sindh Rented Premises Ordinance, 1979, as the petitioner has committed default since December 1987 up to February 1989. He submits that for the aforesaid period and the amount of Rs.78.232.50 was due while payment of Rs. 90,000/- through Pay Order No. 102338 dated 07-03-1989 was made, which was accepted under protest and such acknowledgement receipt No. 29237 dated 05-06-1989 under covering letter of the same date was sent to the petitioner. He emphasizes that the petitioner has committed default for the aforesaid period; as such he is liable for ejectment from the premises in question. Regarding power of attorney, the contention of the counsel for respondent No. 1 is that both the powers of attorney are properly executed, as such the impugned order and judgment do not suffer on this account. He further submits that the petitioner never raised objection during trial regarding those powers of attorney, as such he cannot raise the objection at this stage. Regarding acceptance of a cumulative rent in lump-sum, the contention of the counsel for respondent No. 1 is that respondent No. 1 has earlier filed a Rent Case No. 2723/1984 which was later on compromised under the terms and conditions which were not fulfilled by the petitioner. According to him, after compromise of the earlier case, the petitioner was required to pay rent on monthly basis. As he failed to do so; therefore, he became defaulter and the rent application was rightly allowed by the learned Rent Controller. In the end, he requests for dismissal of the instant petition.

5. In the light of the arguments, I have scanned the entire record placed before me. As far as the objection of the learned counsel for the petitioner regarding the powers of attorney is concerned, this issue has been elaborately discussed by the learned Rent Controller as well as the learned Additional District Judge. Amongst the two powers of attorney, the first was a registered power under which the attorney was empowered to sign the rent application while the other power of attorney further empowers him to proceed and depose in the rent case. I am of the view that there is no illegality or irregularity in the process of signing of the pleadings and appearance on behalf of respondent No.

1. I am very much clear in my mind that there was no defect in the rent application as well as further proceedings due to execution of two different powers of attorney in favour of the representative of respondent No. 1.

6. The other aspect of the case pertains to the concurrent findings of the lower forums regarding default in payment of rent. The plea of the petitioner bears no weight that there was a practice to pay accumulated rent in a lump sum. If there was any practice by the petitioner to pay rent after getting the same accumulated for several months, then it will not improve the case of the petitioner. The petitioner has produced certain rent receipts in which accumulate rent was received by the respondent but those receipts pertains to the period earlier than the compromise of the earlier rent case. After the compromise, it was the duty of the petitioner to pay rent regularly on monthly basis in which he admittedly failed. It would not improve the case of the petitioner that the rent was not demanded or collected by the respondent No. 1 during the period of December 1987 to February 1989. It was obligatory to the petitioner as per compromise to clear the arrears of rent up to 28-02-1989. It is also an admitted position that Pay Order No. 1022338 dated 07-03-1989 for an amount of Rs. 90,000/- was received by respondent No. 1 under protest. It is very much evident from the date of the said pay order that the petitioner had already committed default when he prepared pay order in the name of respondent No.

1. It is well settled that the default of even a single day cannot be ignored.

7. I have gone through the entire impugned order of the learned Rent Controller and the judgment of the lower Appellate Court and I could not trace out any misreading or non-reading of the evidence as well as illegality or irregularity in the rent order and the findings of the appellate forum below.

8. The ultimate outcome of the above discussion is that the concurrent findings are meritorious in all respects; as such there is no need to interfere by this Court. The instant constitutional petition is dismissed. ZC/S-15/Sindh Petition dismissed.