' HAMID ALI MIRZA, J.---This civil petition for leave to appeal is directed against judgment dated 10- 6-2004 in F.A.O. No,70 of 2004 (Mst. Fatima Gul v. Malik Saeed Akhtar and others) passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby the said F.A.O. Was dismissed maintaining the order dated 5-4-2004 for eviction of the petitioner passed by learned Additional Rent Controller, Rawalpindi Cantt.
2. Brief facts of the case are that the respondent filed eviction application against the petitioner/tenant under section 17 of the Cantonment Rent Restriction Act, 1973 (hereinafter referred as the said Act) wherein after filing of written statement by the petitioner, an order under subsection (8) of section 17 of the said Act was passed directing the petitioner/tenant to deposit all rent due before the specified date mentioned in the order and to deposit regularly future rent before 5th of each calendar month till the final decision of the case vide order dated 3-12-2003.
The respondent landlord moved an application under subsection (9) of section 17 of the said Act stating therein that the petitioner/tenant has defaulted in the payment of future rent for the month of December, 2003 with which application rent certificate was attached. The petitioner/tenant was issued notice to file reply which was filed. The learned Additional Rent Controller after perusing the record, considering the objections filed to the said application and hearing the learned counsel for the parties ordered eviction of the petitioner from the shop premises within a period of three months. The petitioner/tenant preferred F.A.O.No,70 of 2004 before the Lahore High Court, Rawalpindi Bench, Rawalpindi which was dismissed by learned Judge in Chambers as per impugned judgment, against which present petition has been preferred.
3. We have heard learned counsel for the petitioner and the caveator and also perused the record.
4. Contentions of the learned counsel for the petitioner are that (i) there was no wilful default in the deposit of rent for the month of December, 2003 as the same could not be deposited because her son who has gone to Karachi where he met with an accident and there he remained under the treatment of a doctor in the Sindh Government Hospital, Korangi, Karachi who advised him to take rest till 19-1-2004 and on his return, rent was deposited on 20-1-2004, (ii) no enquiry was held under subsection (1) of section 27 of the said Act and (iii) monthly rent for the defaulted month of December, 2003 could be adjusted from the security deposit of the petitioner. Learned counsel has taken us through the entire record of the case in support of his above said -contentions. He has also placed reliance upon (i) Ghulam Muhammad Khan Lundkhor v. Safdar Ali PLD 1967 SC 530, (ii)
Fazal Muhammad v. Province of the Punjab through Secretary Food Department, Lahore and another PLJ 1982 Lah. 556, and (iii) Zahoor Ahmed v. Mehra through Legal Heirs and others 1999 SCM R 105.
5. Learned counsel for the caveator has supported the impugned judgment that default in the payment of rent was admitted by the petitioner/tenant and in that respect learned Judge in Chambers and Court below have concurrently arrived at finding that default was wilfjl and due to negligence of the petitioner/tenant which could not be said to be a default beyond the control of the petitioner and further that summary enquiry as required by the said provision of law was conducted by inviting the explanation from the petitioner and after hearing the impugned order was passed and that the monthly rent could not be allowed to be adjusted from security amount towards rent of monthly defaulted period as there was nothing in the tenancy agreement that future monthly rent as ordered by the Rent Controller under subsection (8) of section 17 of the said Act could be adjusted from the security deposit. Learned counsel for the respondent has placed reliance upon (i) Khadim Hussain v. Nasir Ahmad 2003 SCM R 1580, (ii) Mrs. Zarina Khawaja v. Agha Mahboob Shah PLD 1988 SC 190, (iii) Abdul Ghafoor v. Haji Muhammad Hussain 1977 SCM R 217, (iv)
Muhammad Hassan Khan and others v. Mirza Abdul Hamid 1981 SCM R 799 and (v) Khalid Hameed v. Additional District Judge Sahiwal and others 1991 SCM R 359.
6. We do not find substance and merit in the contentions of the learned counsel for the petitioners, however, we find merit and force in the submissions made by the learned counsel for the caveator/respondent.
7. Learned Judge in Chambers and the Court below have rightly concurred in holding that default in deposit of rent for the month of December, 2003 was neither unavoidable nor beyond the control of the petitioner. Learned Judge in Chambers as per impugned judgment has considered the case-law cited before him and was right in arriving at finding that the default in the deposit of rent in Court was contumacious, due to negligence and was not unavoidable and that the instant case was not covered by dictum laid down in the case of Ghulam Muhammad Khan Lundkhor v. Safdar Ali PLD 1967 SC 530. In fact the petitioner being tenant and as per order of Court passed under subsection (8) of section 17 of the said Act, was directed to make compliance with regard to the deposit of rent and not her son, therefore, it was the duty of the petitioner/tenant to have either to deposit herself or through any of her agent and in case her agent or son failed to deposit within the statutory period then the petitioner would be liable/responsible for the consequences. Besides above both Courts have concurrently held that cause shown for non-deposit of monthly future rent could not be termed to be unavoidable or beyond the control of the petitioner. We are also of the same view that the learned Judge in Chambers and the. Rent Controller have rightly arrived at the said finding. So far second contention with regard to holding of an enquiry, the said plea was neither raised before the Rent Controller nor before the learned Judge in Chambers, however, a summary enquiry was held by the Rent Controller whereby the petitioner/tenant was called to explain the commission of A said default under the provision of rule 9 of section 17 of the said Act and also heard the petitioner which would be sufficient compliance of section 27 of the said Act.
The said provision of law does not state that a detailed enquiry should have been held. Reference may be made to decision of this Court in Municipal Committee Gujranwala through its Administrator v. Barkat Bibi and 5 others 1979 SCM R 264 wherein at page 265 this Court has observed:-- "Before the High Court, it was argued that the default could not be said to be wilful and that in any case the petitioner was not given adequate opportunity before his defence was ordered to be struck off. The learned Judge in the High Court held that insofar as the petitioner was a' awed to submit a reply to the respondents' application for striking off the defence, it could not be said that he had not been afforded any opportunity as a detailed inquiry was not called for, as held by this Court in Ghulam Muhammad Khan Lundkhor v. Safdar Ali PLD 1967 SC 530. It was also held that merely because there were audit objections the petitioner was not absolved of the obligation of complying with the order of the Court under section 13(6) of the Ordinance. The conclusion arrived at was that it could not be said that the default was not wilful."
(ii) Haji Fazal Karim v. Additional District Judge, Lahore and others PLD 1982 SC 306 wherein this Court at page 307 has observed as under:-- "No doubt a tenant is entitled to an opportunity of showing cause before his defence is stuck off; as held in Din Muhammad and another v. Umar Hayat and others (1981 SCMR 326), relied upon by the learned counsel, who has now raised a contention in this behalf; but this exercises need not be done in a full-fledged trial as if it were a regular matter being dealt with under the Civil Procedure Code (Municipal Committee, Gujranwala v. Barkat Bibi and 5 others (1979 SCM R 264) and Ghulam Muhammad Khan Lundkhor v. Safdar Ali (PLD 1967 SC 530). The requirement of the principle of natural justice will be satisfied if the tenant and/or his counsel is made aware of the proceedings or proposed action with regard- to the striking off the defence. Once that is done, it is not necessary for Rent Controller to invite, ask or order the tenant to produce evidence. Normally the tenant, when he is made aware of the default with regard to the deposit under section 13(6), either takes the plea that he has made the deposits and he is granted a short time to produce the receipts. In such cases this would satisfy the requirement of justice regarding opportunity. If, on the other hand, his plea is other than that of deposit, he or his counsel makes the statement in this behalf immediately so as to avoid criticism on the basis of afterthought if he postpones explanation. And, once he is afforded an opportunity to offer an explanation verbal or in writing may be on the same day when the question whether proper deposit has been made or not arises it would again satisfy the requirement of justice with regard to opportunity; unless a genuine and honest request for a short adjournment is sought to produce some material in support of his explanation; of course, other than that material which in available at the time when this question arises. If the request for adjournment in this behalf is intended to delay the proceedings and is vexatious the Rent Controller would be duty bound and also perfectly justified to refuse the same; because one of the purposes of the relevant law is to expedite the disposal of cases brought thereunder. And, on the other hand, if the request merits acceptance, one or two short adjournments would normally be considered enough to decide the questions relatable to the deposit of rent and the striking off of the defence. It is necessary to emphasize that while doing so, there is no need to frame issues nor to record evidence in any formal manner. Examination of original documents and/or copies, as also the process of questioning the parties and/or their counsel, normally proves not only helpful but conclusive in this behalf---purpose being always not to incur avoidable delay."
So far the third contention that monthly rent for the defaulted period could have been adjusted from the security deposit has also no merit considering the law laid down by this Court in (i)
Khadim Hussain v. Nasir Ahmad 2003 SCM R 1580 (ii) Mrs. Zarina Khawaja v. Agha Mahboob Shah.
PLD 1988 SC 190 considering also the fact that there was no covenant in the tenancy agreement that in case of default, adjustment of payment of rent could be made from the security deposit. As there was no covenant in the tenancy agreement for such adjustment and no advance rent was deposited with the respondent/landlord hence no adjustment could be made towards rent of defaulted period. Even this plea with regard to adjustment of rent from the security deposit was neither raised before the learned Rent Controller nor before the learned Judge in Chambers.
Reference may be made to Muhammad Anwar v. Abdul Shakoor (1982 SCM R 1120 at page 1122(c), wherein this Court observed that the points not raised in Court below cannot be permitted in appeal before this Court. In case of Abdul Ghafoor v. Haji Muhamamd Hussain 1977 SCM R 217 this Court declined to reverse the finding of the learned Judge in Chambers and two Courts below where tenant had defaulted in the payment of rent in compliance of the Rent Controller order even though tenant's sister's death had taken place as he had four days at his disposal to make compliance.
8. We do not find that the contentions raised before us have any merit, therefore no substance in this petition, resultantly leave to appeal is declined and the petition is dismissed. However, period of ninety days is given to the petitioner to vacate the shop premises subject to deposit of monthly rent and in case of failure the respondent landlord would be entitled to get the petitioner evicted from the premises through execution without notice with police aid, if necessary.