2014 PLP 1853 (YLR)

FAROOQ ALI CHANNA, J.

The petitioner through this petition has called in question the judgment dated 28-7-2012 passed by learned VIth Additional District Judge, Karachi South (hereinafter referred to as Appellate Court) in F.R.A. No.79/ 2011 maintaining the order dated 20-2-2011 passed by learned Xth Rent Controller, Karachi South (hereinafter referred to as trial Court) in Rent Case No. 1637/2006 striking off the defence of the petitioner in terms of section 16(2) of the Sindh Rented Premises Ordinance, 1979, directing the petitioner to hand over the vacant and peaceful possession of demised premises bearing House No. A/820 situated in Street No. A/6, Mehmoodabad No.4, Karachi within sixty days to the respondent No.1.

2. I have heard learned counsel for both the parties and perused the record. Learned counsel for the petitioner read over the Trust Deed, averments of the ejectment application, its reply, facts narrated in the memo of first Rent appeal and has delivered lengthy arguments. However, the questions involved in this constitutional petition are to scrutinize the illegality or legal infirmity in the orders passed under section 16 subsection (1) or (2) of SRPO, 1979. It was the stance of learned counsel for the petitioner that the respondent No.1 has filed the ejectment proceedings without any lawful authority with ulterior motives to increase the monthly rent by passing the procedure provided under section 8 of SRPO, 1979, such demand of respondent being unlawful and unjustifiable was not accepted by the petitioner who was depositing monthly rent regularly in MRC No 458/2006 and with his consent the respondent No.1 was withdrawing the said rent. Learned counsel also questioned the nominations of the members of Board of Trustees and execution of Registered deed of trust to be violative of law. Per learned counsel since the petitioner had disputed the respondent's relationship to be his landlord therefore, it was incumbent upon the trial Court to decide the issue of relationship of landlord and tenant before deciding the application under section 16(1), S.R.P.O. Learned counsel has also contended that the judgment passed by Appellate Court is self contradictory, in para No.4 it is stated that the counsel for the appellant despite several opportunities failed to appear whereas in the concluding para it is stated that the case laws cited by the counsel for appellant/ opponent are distinguishable, this shows that the Appellate Court has passed a hasty judgment.

2. I have considered the above submissions of learned counsel for the petitioner, which could be good grounds for considering his plea, if his right of defence was not struck off in terms of section 16(2) of SRPO, 1979. The Appellate Court in first rent appeal under section 21 of SRPO, 1979 has to examine the factual as well as legal aspects of the orders passed by the Rent Controller whereas the High Court in exercise of its extra constitutional jurisdiction under Article 199 of the Constitution has to examine the illegalities or mass irregularities in the order under section 16(1) of SRPO, 1979 resulting in miscarriage of justice and compliance of the said tentative order in letter and spirit before passing the consequential order under section 16(2) of SRPO, 1979. The Appellate Court in its judgment dated 28-7-2012 impugned in this Constitutional petition, has examined and discussed both the above aspects of the case and came to a conclusion of concurrent findings recorded by the trial Court.

4. I have also perused the record and examined the order under section 16(1) of RPO, 1979 passed by the trial Court directing the petitioner to tentatively deposit monthly rent at Rs. 1200 from February, 2006 within 30 days subject to adjustment of amount deposited by the petitioner in MRC No. 458/2006, the petitioner was also directed to deposit future monthly rent at Rs. 1200 on or before 10th of each calendar month. The petitioner in his objections filed against the application under section 16(1) S.R.P.O. did not dispute the rent at Rs.1200 nor the arrears commencing from February, 2006, he also recorded his no objection to the withdrawal of said rent by the respondent as such there is no legal strength in plea of learned counsel for the petitioner, that the trial Court first had to decide the question of relationship. The aforesaid tentative order clearly indicates the directions to deposit the arrears and future rent in rent case, however the petitioner did not comply with the tentative order and continued to deposit rent in MRC No. 458/2006 till August, 2010. The respondent apparently first time came in knowledge about non-compliance of the tentative order dated 17-4-2007 when they filed application for withdrawal of rent, the trial Court called report from Nazir which reflected that the petitioner was not depositing rent in Rent Case No 1637/2006, therefore the respon-dent filed application under section 16(2) of SRPO, 1979. The deposit receipts and certified copy of ledger report produced by the petitioner also manifest the deposit of arrears and future rent in MRC No,458/2006 till August, 2010 and then from November, 2010 to February, 2011 in Rent Case No. 1637/2006, such deposit was in utter disregard of tentative order dated 17-4-2007 passed by the trial Court in terms of section 16(1) of SRPO, 1979, thus the trial Court had no other option except to strick off the petitioner's defence in terms of section 16(2) of SRPO, 1979, the said order, since passed in accordance with law, was maintained by the Appellate Court as such the judgment/orders of both the Courts below does not suffer from any irregularity, illegality, or legal infirmity, the same are based on the available record and cogent reasons.

5. Besides, both the Courts below have recorded concurrent findings regarding the non-compliance of order under section 16(1) of SRPO, 1979 in letter and spirit, in consequence thereof the defence of petitioner to strik off, such concurrent findings cannot be interfered in exercise of extra constitutional jurisdiction under Article 199 of the Constitution by this Court, unless the findings appear to be absolute perverse, arbitrary or suffering from legal infirmity causing miscarriage of justice which in this case does not appear. Accordingly the Constitution Petition is dismissed. ARK/M-66/Sindh Petition dismissed.