2006 PLP 524 (CLC)

MUHAMMAD MOOSA K. LEGHARI, J.

Both the learned counsel intend to argue the case on merits as such, with consent the orders dated 14-2-2005, whereby the petitions were dismissed for non-prosecution are hereby recalled. Consequently, the petitions are restored.

2. Since both these constitution petitions arise out of similar facts and circumstances the same are being disposed of by this single judgment.

3. Precisely, the facts of the case are that the respondent is the landlord of the two shops situated at Ibad Centre, Station Road, and constructed over C.S. No.F-1141/1 Hyderabad, while the petitioners are the tenants in each of those shops. The respondent/landlord filed two Rent Applications bearing Nos.19 of 2002 and 20 of 2002 respectively before the Rent Controller seeking the ejectment of the tenants on the ground of default.

4. It seems that during pendency of rent applications an application under section 16 of the Sindh Rented Premises Ordinance, 1979 was also moved before the Rent Controller, whereupon the Rent Controller passed tentative rent order, dated 9-7-2002, directing the tenant to deposit the rent in Court. Subsequently, on the application moved by the landlord/ respondent the defence of the tenant/petitioner was struck off on the ground that he failed to deposit the rent for the month of July, 2002 by 10th of August, 2002 as he deposited the rent for the months of July and August, 2002 on 6-9-2002. The order of the Rent Controller was challenged before the Appellate Forum. The Appellate Court dismissed the appeals on the ground that the time was stipulated under the law and that there was non-compliance of the order of Rent Controller.

5. In support of these petitions it is submitted that it was an error jointly committed by the office of Rent Controller and the tenant as a misunderstanding has taken place whereby the rent for the month of July, 2002 could not be deposited. There was no intention or deliberate non-compliance of the order on the part of the tenant.

6. Learned counsel for the respondent/landlord has supported the judgments passed by the Rent Controller as well as the Appellate Court stating that there were concurrent findings and that the constitutional jurisdiction cannot be invoked as a substitute of a second appeal. It is contended that the findings recorded by the two Courts below have a conclusive effect and need not be interfered.

7. The arguments addressed have been considered and the impugned orders have been perused with the assistance of learned counsel for the parties.

8. It is not disputed that the defence of the tenant/petitioner was struck off on the sole ground that he has failed to comply with the tentative rent order and failed to deposit the rent for the month of July, 2002 on 10th of August, 2002, but instead, he deposited the rent for the months of July and August, 2002 on 6-9-2002 as revealed from the orders passed by the two Courts below. With the result that the rent for the month of August, 2002 was deposited within due date, however, the rent for the month of July, 2002 was not deposited within the period specified by law. There seems to be a reason in the argument that there was an inadvertent error partly, on the part of the office of the Rent Controller and partly on the part of tenant, 'which resulted in such confusion. Merely, because the tenant on account of some innocent error or sheer inadvertence failed to deposit rent for one month viz. July, 2002 within stipulated time would not be a just ground for striking of his defence. The penal provisions are to be construed very strictly as the law favours adjudication on merits. Case of Hussain Bux v. Haji Yaqoob and another 1990 SCMR 1354 can conveniently be referred in this regard.

9. In the circumstances, this seems to be a fit case to invoke the constitutional jurisdiction. Accordingly, both the petitions are allowed. Impugned orders passed by the two Courts below are set aside. The cases are remanded to the Rent Controller. The Rent Applications Nos.19 of 2002 and 20 of 2002 shall be deemed to be pending before the Rent Controller. The Rent Controller shall proceed with the above rent applications expeditiously and dispose of the same in accordance with law, within a period of six months of the receipt of this order. Needless to mention that the petitioners/tenants shall continue to deposit the rent in Court in compliance of the tentative rent orders. H.B.T./R-6/K?????????????????????????????????????????????????????????????????????????????????????? Case remanded.