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Constitutional Petition No.131 of 1986, decided on 3-1st January, 1987.

---Art.199--Constitutional jurisdiction, exercise of--Findings of fact- Finding of fact arrived at by Court below being based on evidence on record, held, could not be interfered with by High Court in exercise of constitutional jurisdiction.

---Art.199--Cantonments Rent Restriction Act (XI of 1963), Ss.17 & 24--Jurisdiction of Appellate Court--Constitutional jurisdiction, exercise of--Appellate Court below having jurisdiction to interfere with discretion, exercised by Rent Controller, reversed finding of Rent Controller on point of default in payment of rent--Such interference bar Appellate Court below being justifiable, held, could not be considered without lawful authority--Order of Appellate Court below could not be interfered with by High Court in exercise of constitutional jurisdiction.

---S.17--Default in payment of rent--Proof--According to agreement of lease, amount deposited by tenant with landlord being refundable on vacation of premises, held, would not be liable to be adjusted towards arrears of rent which were due from tenant, especially when plea of adjustment of such amount against arrears of rent was not taken by tenant in his written statement.

Abdul Naseer Khan for Petitioners.

Shaikh Muhammad Usman for Respondent No.1.

These are two Constitutional Petitions in respect of the same premises between the same parties arising out of the judgment of District Judge, South, Karachi, dated 20-8-1986. The relationship between the parties is that of tenant and landlord since 18-5-1982 by virtue of an agreement. In 1977 the respondent filed application alleging default in payment of rent. Another application was also filed by the same respondent claiming the ejectment on the basis of need of use for the husband and damaging the property. The applications were consolidated and evidence was recorded after framing of the issues. The matter is under Cantonments Rent Restriction Act.

The Rent Controller by his order, dated 29-2-1984 held that there was only a technical default in respect of the payment of rent from 1-4-1976 and, therefore, he did not feel inclined to direct the ejectment of the petitioner. In appeal, however, the District Judge South took the view that there was a default of four months from 1-4-1976 to therefore, he considered that the ejectment should have been ordered. The question of damages to premise, or personal need of the premises, is not involved in these petitions the ejectment is not based on the same.

Mr. Abdul Naseer Khan further submitted counsel for the petitioner has taken the position that the learned D.J. has proceeded wrongly and against law 'when he held that there was default of four months' rent. He submitted that the money order for June and July, 1976 had been sent on 9--8-1976 and since the tenancy was a statutory tenancy, therefore, there was no default in payment of rent for this period. I agree it him that this is the correct position in law and the petitioner could not be punished for not having tendered the rent for June and July, 1976 in time. However, there is a clear default in the payment of rent of April and May, 1976 and the same was paid only on 14-9-1976 and not earlier. The counsel had submitted that there had been a practice between the parties in respect of lumpsum payments and payment by cheques and since the respondent had failed to receive or encash the cheque of Rs.800 given to her by the petitioner, therefore, the technical default had taken place. The Appellate Court had considered the question of payment by cheque and he has come to the conclusion that since there was neither counterfoil of the cheque produced by the petitioner nor the number of the cheque was given and the same having been denied by the respondent, the contention of the respondent that the cheque was not sent to the landlady was correct. This is a finding of fact and there is no justification for me to interfere with this finding in the writ petition.

Counsel then submitted that the discretion exercised by the Rent Controller should not have been interfered with by the District Judge. However, i find that-the discretion has been interfered with by the D.J. and there is a clear finding of default of two months' rent, therefore, I cannot hold that there was absolutely no justification for the discretion which has been exercised by the D.J. in this regard. It is correct that the District Judge took into consideration default of four months which was really 'a default of two months before him but since the discretion is exercised by him and there is a justification for the exercise of that discretion or if I may say so for interference in the exercise of discretion by the Rent Controller for at least two months default in payment of rent, therefore, exercise of discretion by the D.J. could not be said to be completely arbitrary, or perverse.

If I had been sitting here in the capacity of hearing Second Appeal, I might have entertained a Second Appeal but since it is writ petition which has been filed before me which I can entertain only if there has been a failure to exercise a discretion or action having been taken without lawful authority, then I would have been justified for interfering with the order, but that is not the case here.

Mr. Abdul Naseer Khan further submitted that Rs.800 of deposit were available with the respondent which could have been adjusted by the respondent towards arrears of rent. But I find that this position has not at all been taken by the petitioner in the Written Statement and the agreement of lease shows that it was a deposit refundable on vacation of the premises, therefore, the petitioner probably did not take up the position that the same was liable to, be towards the arrears which were due from him.

The question really is whether the appellate Court could interfere with the jurisdiction exercised by the Rent Controller and since in this case there is justification for interference in that discretion on account of the default in payment of two months' rent, therefore, it could not be said that the interference by the District Judge was without lawful authority. Accordingly these two petitions are dismissed limine. However, may record here that Shaikh Muhammad Usman, had appeared for the respondent on Court notice had, on my asking that commercial premises were difficult to secure, agreed gracefully to allow the petitioner one year's time for vacating the premises subject to their making regular payment of rent. It is, therefore. stipulated that the respondent will not move for the ejectment of the petitioner till 31-1-1988 if the rent is regularly Paid.

H.B.T./ 5-24/K Petition dismissed

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