2011 SCMR 290 (PLP)

JAWWAD S. KHAWAJA, J.

The facts or this case are straightforward. The petitioner Bashir Ahmad is the landlord of the premises in which the respondent is a tenant. The respondent/tenant had filed a Miscellaneous Rent Case (MRC) while the petitioner/landlord had filed an ejectment case against the respondent. On 7-2-2001, the learned Rent Controller passed a tentative rent order under section 16(2) of the Sindh Rented Premises Ordinance, 1979 (SRPO). This order dated 7-2-2001 was not complied with. The respondent does not dispute the fact, that the said order was not complied with inasmuch as, for a period of five months starting November, 2003, the tentative rent was not deposited in the rent case. The explanation given for this omission was that instead of depositing the rent in the ejectment case, the same, for this five month period, had been deposited in the MRC.

2. The respective positions taken by the parties have been set out in the application filed by the petitioner/landlord under section 16(2) of the SRPO and by the respondent/tenant in its objections to the said application. The respondent's main contention before the learned forums below as also before us, was that this omission, at most, amounted to a technical default which could not be termed as being wilful.

3. The learned Rent Controller vide order dated 13-9-2004 did not accept the contention of the respondent. She held that the default, for reasons set out in the order, was "wilful, deliberative and contumacious." An appeal filed by the respondent against the order of the learned Rent Controller was dismissed by the Rent Appellate Court vide judgment dated 6-11-2008. The reasoning which had prevailed with the learned Rent Controller found favour with the learned appellate Court also. Feeling aggrieved, the respondent/tenant filed Constitution Petition No. 14 of 2009. This petition was allowed and as a result, the concurrent findings of the learned Rent Controller and the learned appellate Court were set aside.

4. Learned counsel for the petitioner/landlord argued firstly that there were cogent reasons given by the learned Rent Controller and the appellate Court for holding that the default committed by the respondent was wilful. On this basis, it was submitted that the High Court while exercising Constitutional jurisdiction could not have interfered in the well-reasoned judgments of the two forums below. Additionally, it was contended that even otherwise, the reason which prevailed with the learned Bench of the High Court was itself erroneous because it was based on case law which was clearly distinguishable on facts and the ratio of precedents had been misapplied.

5. Having heard learned counsel for both sides at length and having examined the impugned judgment passed by the High Court with their assistance, we agree with the submissions (discussed below), advanced on behalf of the petitioner/landlord.

6. The issue in contention before us is confined to the question as to whether the admitted failure of the respondent to comply with the tentative rent order dated 7-2-2001, was merely technical as asserted by the respondent, or was wilful, deliberate and contumacious as alleged by the, petitioner and so held by the learned Rent Controller and the learned appellate Court. Whether the default was technical or wilful, is a question of fact. This question has to be answered on the basis of the record. In order to appreciate the respective positions of the two sides on this issue, it is necessary firstly to advert to the stance of the respondent/tenant taken in paragraph 2 of its objections to the application under section 16(2) of the SRPO. For ease of reference, the relevant extract from paragraph 2 of the objections, is reproduced as under:-- "The rent for these [five] months was in fact deposited by the opponent in Miscellaneous Rent Application No. 386 of 2000 instead of main case. By perusal of the deposit rent receipt and Nazir Report there is no wilful default in payment of rent except technical one, whereas the opponent's representative deposited the rent in Miscellaneous Application but not in the rent case. On inquiry the representative of the opponent namely Sheraz who used to deposit the rent in Court in every month informed that in this regard applicant/landlord contacted with him and requested him not to deposit the rent in main rent case and requested him to deposit the same in Miscellaneous Rent Application No. 386 of 2000. The reasons so given by the representative of the opponent that applicant requested him not to deposit the rent in main case and same may be deposited in Miscellaneous Rent Application on the ground that it is difficult for the applicant to withdraw the rent in main case but it is easy for him to withdraw the rent form the Misc. Rent Application, so he did it on his instigation. However, he deposited the rent in time and committed no default as alleged by the applicant."

7. From the above extract, it is clear that the respondent did not confine itself to acknowledging its error. It set up a plea, which apart from being dubious and disputed, shows a conscious disregard for the tentative rent order dated 7-2-2001. It is not possible for us to accept that the respondent's representative was justified in acceding to a request made by the petitioner instead of complying with the terms of the order dated 7-2-2001. Additionally, even if we were to form a different opinion on the subject, it would not be appropriate for us, while exercising jurisdiction under Article 185(3) of the Constitution, to re-appraise the circumstances of the case and to substitute our own opinion in place of the well considered views expressed respectively by the learned Rent Controller and the appellate Court. For the same reasons, we find that the order passed by the learned Rent Controller under section 16(2) of the SRPO and affirmed by the learned appellate Court was neither fanciful nor arbitrary. It, therefore, could not have been interfered with by the High Court while exercising writ jurisdiction under Article 199 of the Constitution.

8. We now consider the reasoning which prevailed with the High Court while passing the impugned judgment. Reliance was placed ,by the High Court on the case titled Dr. Aftab Ahmed Khan v. Mst. Zaibun Nisa (1998 SCMR 2085) to hold that the default of the respondent in complying with the order under section 16(2) of the SRPO was not wilful and was merely technical in nature. We are afraid, the controversy between the parties cannot be decided simply by considering the aforesaid precedent. Each precedent enunciates principles which are based on the circumstances of the case being examined by the Court. The facts of the cited case are clearly distinguishable from the circumstances arising in this petition. We have already noted, for reasons discussed above, that the learned Rent Controller and the learned appellate Court were fully justified in concluding that the respondent's default was wilful, deliberate and contumacious. In view of this factual finding, with which we are also in agreement, it follows that the ratio in the case of Dr. Aftab Ahmed Khan, supra actually supports the plea advanced on behalf of the petitioner/landlord. This is so because in the cited case it was determined as a fact that the default committed by the tenant therein, was only technical and had not been committed wilfully, deliberately and contumaciously. This is not the case in the present petition before us.

9. We do not need to cite any precedent in support of the well-settled legal proposition that while exercising Constitutional jurisdiction under Article 199, the High Court will not make factual determinations or interfere in orders passed by competent Courts vested with statutory powers in the exercise of their functions, unless there is a jurisdictional error or other legal infirmity such as arbitrariness etc. in the orders assailed before the High Court. For this reason, we find that the learned Constitutional Bench in the High Court did not have a valid justification for setting aside the orders of the learned Rent Controller and the appellate Court, respectively.

10. In view of the foregoing discussion, this petition is converted into appeal and allowed. As a result, the impugned judgment dated 24-12-2009 is set aside and the order of the learned Rent Controller dated 13-9-2009 and that of the appellate Court dated 6-11-2008 are restored and affirmed. With the consent of the petitioner stated through his learned counsel, the respondent is allowed time until 31-8-2010 to vacate the premises in question. There shall be no order as to costs. S.A.K./B-6/SC Appeal accepted.