2017 YLRN 361 KARACHI-HIGH-COURT-SINDH

Full text

Mst. SULTANA AHMED VS III-ADDITIONAL DISTRICT JUDGE, KARACHI (WEST) Ss. 10 & 15(2)(ii)----Constitution of Pakistan, Art. 199---Transfer of Property Act (IV of 1882), S. 105---Constitutional petition---Mode of payment of rent---Wilful default in payment of rent---Landlady/petitioner filed application for eviction of tenant/respondent under registered lease agreement executed for period of 30 years on ground of default in payment of monthly rent---Pleas raised by tenant were that as landlady had refused to accept monthly rent and demanded the same on yearly basis, he had not committed any default in payment of rent after depositing accumulated rent in lump sum in court ---Rent Controller accepting the ejectment petition directed tenant to hand over vacant possession of rented premises to landlady---Tenant filed appeal against said order which was accepted and the order was set aside by appellate court on ground that tenant having deposited rent in court, had not committed default in payment of rent---Tenant took pleas that Rent Controller had no jurisdiction to entertain application as lease agreement came under provisions of Transfer of Property Act, 1882 and lease agreement could be challenged only by way of civil suit---Contentions raised by landlady were that tenant in cross-examination had admitted default in payment of rent, and the pleas raised by tenant that case of landlady was under Sindh Rented Premises Ordinance, 1979 and not S.105 of Transfer of Property Act, 1882 was baseless---Validity---Lease agreement had provided payment of agreed rent on monthly basis in advance---Before depositing lump sum rent in court, tenant had sent the same by way of cheque through courier---Monthly rent was never sent to landlady through postal money order nor was any evidence available on record to show that tenant had made any effort to pay the same on monthly basis---Lump sum payment in court was documentary proof of wilful default in payment of rent for more than fifteen months---Tenant had not followed the mode of payment of rent provided under S.10 of Sindh Rented Premises Ordinance, 1979---Plea of tenant as to lack of jurisdiction of Rent Controller had no merit---Impugned judgment of appellate court was based on incorrect application of law---High Court set aside order of appellate court and upheld that of Rent Controller---Constitutional petition was allowed in circumstances.