2006 PLP 580 (YLR)

MUSHIR ALAM, J

This petition arises out of order, dated 6-3-2002 passed by VIIIth Rent Controller, Karachi (South) in R.C. No.127 of 1999 allowing Rent Case on the ground of default and personal requirement. The Appellate Court vide judgment, dated 6-3-2002 in F.R.A. No.1147 of 2001 maintained the finding on the issue of default. Respondent No.2 filed ejectment proceeding against petitioner on the ground of personal requirement and default in payment of rent, since 1986. It appears that the Mst. Zia Bano acquired the subject property in auction in the year, 1986, she served a notice on the brother of the petitioner, the recorded tenant intimating change of ownership and acquisition of the property by her. Apparently in response of such notice money order was sent by the present petitioner, which was declined, on the ground that petitioner was not the tenant but his brother Rasheed Ahmed Shaikh was the tenant. It however, seems that the landlady Mst. Zia Bano expired in the year, 1988 and the respondent No.2, husband of the deceased landlady served a notice calling upon the petitioner to pay rent to him. He however, continued to deposit the rent in miscellaneous rent application in favour of late landlady. Even after filing of the rent case petitioner continued to deposit rent in favour of the deceased landlady. Learned counsel for the petitioner contends that, there is no default, rent was being paid and is being deposited in MRC without any delay. Up to date rent has been paid which the respondent No.2, husband and Rent Collector has since withdrawn. It is contended that learned Rent Controller allowed the ejectment on the grounds of personal requirement and default vide order, dated 26-1-2000. However in F.R.A. No.1147 of 2001 the finding on the ground of personal requirement was reversed but the ejectment on the ground of default was maintained. Mr. Kazi Wali Muhammad urged that default if any is merely of a nature, which does not warrant ejectment in support of his contentions he has placed reliance on Mehboob Jewellers v. Nur Ahmed 1989 SCMR 1327 and A.S.K. Samad v. A. Hussain 1987 SCMR 1013. In contra learned counsel for the respondent Mr. Anwar Hussain contends that, it is a case of deliberate default. The petitioner was informed twice of the demise of the landlord yet he contumaciously continued to deposit the rent in favour of the deceased landlord and did not come forward to pay the rent to the respondent No.2. It is urged that where after intimation as to demise of landlord the petitioner did not offer the rent to the respondent. The default has been held to be deliberate and ejectment on such ground was maintained as reported in Feroz Khan v. Syed Zoha (1996 CLC 949) and Nasir Ali v. Muhammad Hanif and others (1998 SCMR 448). It is further contended there is concurrent findings on the issue of default and even if another view is possible same cannot be imposed and discretion rightly exercised by the Court below cannot be disturbed in exercise of writ jurisdiction in normal course. In support of his contentions, he has placed reliance on Muhammad Sharif and another v. Muhammad Afzal Sohail (PLD 1981 SC 246) Ghulam Nabi v. Additional District Judge, Jhelum and 47 others (2001 SCMR 683). I have heard the arguments and perused the record. As appears from the record that the petitioner had remitted rent @ Rs.59 per month to Mst. Zia Bano through money order Exhs.A and A/1 in reply to a notice, dated 9-12-1998 of the respondent No.2, the petitioner in his reply, dated 31-12-1998 acknowledged the earlier notice as well. There is nothing on record to show that he acted upon the direction to pay the rent to the respondent No.2. Admittedly after demise of the original owner and in spite service of notice, dated 9-12-1998 and filing of the rent case the petitioner continued to deposit the rent in MRC in favour of late landlord. In the case of Mehbood Jewellers v. Nur Ahmed 1989 SCMR 1327, the tenant deposited the rent in favour of the owner at a subsequent date after acquiring knowledge of change. In the case of A.S.K. Samad v, A. Hussain 1987 SCMR 1013 also the tenant not being sure as to claim of ownership deposited the rent jointly in the name of two claimants. In the instant case, as noted above no deposit in favour of the Respondent No.2 was made even after filing of the Rent application. There appears to be no justification to deposit the rent in favour of deceased landlord even after filing of the rent application. The Court below in consideration of such fact allowed the ejectment on the ground of default. As rightly pointed out by Mr. Anwar that even if another view is possible this Court in exercise of writ jurisdiction will not interfere in such findings of facts recorded by the Court below. Petitioner was not able to show that the discretion so exercised by the Court below was perverse or that it suffers from any infirmity could not sustained. Under circumstances, I do not deem appropriate to interfere in the findings of facts recorded by the Court below. The petition is dismissed. Since petitioner is old tenant, six months time to vacate the tenament, however subject to payment of rent to the respondent No.2 regularly. In case petitioner fails to vacate the premises peacefully after six months the writ of possession with police aid be issued without any further notice. H.B.T./R-2/K?????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.