' ROOH-UL-AMIN KHAN, J.--Dr. Muhammad Safdar petitioner has filed this FAO against the judgment/order dated 4-12-2013, whereby learned Rent Controller, Abbottabad Cantonment dismissed the ejectment petition of the appellant.
2. The brief and relevant facts, as per contents of appeal, are that the appellant being owner of Shops bearing Nos.10-11 situated in Bara Tower Jinnah Abad, Abbottabad instituted an ejectment petition against the respondent/tenant on the grounds of wilful default committed by the respondent/tenant as well as violation of the agreement deed and expiry of tenancy besides recovery of rent w,e,f, July, 2007 till delivery of possession. The respondent appeared and contested the petition by filing written statement. The learned Rent Controller after recording pro and contra evidence and hearing the parties dismissed the ejectment petition of the appellant vide impugned judgment/order dated 4-12-2013, hence, the instant appeal.
3. Arguments heard and record perused.
4. Admittedly, the appellant is the owner of the suit shops, which were rented out to the respondent/tenant vide agreement/rent deed dated 2-12-2004. According to the agreement/rent deed the tenancy period was fixed for 11 months commencing from 2-12-2004 to 30-10-2005 on payment of monthly rent of Rs,3000. The rent was agreed to be paid by the respondent to the petitioner in between 1st to 5th date of the calendar month. The petitioner seeks ejectment of the respondent on the grounds of wilful default committed by the respondent/tenant in not paying the monthly rent within the agreed time as well as violation of the agreement deed and expiry of tenancy besides recovery of rent w,e,f, July, 2007 till delivery of possession.
5. The appellant filed the instant eviction petition against the respondent on 19-10-2007. In response to ordinary notices as well as substituted service and publication made in the local newspaper, the respondent did not turn up and was proceeded against ex parte. Ultimately, on 13- 2-2008, the Rent Controller passed ex parte decree for recovery of defaulted rent from July, 2007 and directed eviction of the respondent but on 5-8-2008 the respondent applied for setting aside of the ex parte decree. On 9-8-2008, the respondent moved an application for deposit of the monthly rent, which was allowed on the same day. On the order of the Rent Controller, the RRC prepared details of the rent deposited by the respondent but a perusal of said statement would reveal that the respondent deposited the monthly rents of August 2008 on 9-8-2008, September 2008 on 8-9-2008, October 2008 on 7-10-2008, A February 2009 on 7-2-2009, May 2009 on 6-5- 2009, June 2009 on 6-6-2009, April 2010 on 6-4-2010, May 2010 on 6-5-2010 and October, 2010 on 6-10-2010 i,e, beyond the prescribed time provided by section 17(8) and (9) of the Cantonments Rent Restriction Act, 1963, which provide as under:- "(8) On the first hearing of proceeding under this section or as soon thereafter as may be but before the issues are framed, the Controller shall direct the tenant to deposit in his office, before a specified date all the rent due from him, and also to deposit regularly till the final decision of the case, before the 5th day of each month, the monthly rent which, subsequently becomes due, and if there be any dispute as to the amount of rent due, the Controller shall determine such amount approximately.
(9) If the tenant fails to deposit the amount of rent before the specified date of as the case may be before the 5th day of the month, his application, shall be dismissed, or his defence, if he is a respondent, shall be struck off, and the landlord shall be put in possession of the building without any further proceedings".
6. A bare reading of these subsections would make it absolutely clear that the delay of single day in deposit of the rent, without offering any explanation, would be sufficient for striking, off the defence of tenant and putting the landlord into possession of the property.
7. The respondent while appearing as RW-1 admitted that on ten occasions she has deposited the monthly rent after the due date of 5th of each month.. She has also shown no explanation as to whether she had paid the defaulted rent claimed in the eviction petition or it is yet to be paid. There is nothing on record regarding the defaulted period, which could suggest that the respondent had made the payment of said defaulted rent in time or in lump sum to the respondent. The learned counsel for respondent, when confronted with the situation and was asked to provide a single receipt or proof regarding deposit of due monthly rent, he could not wriggle out the situation, but offered explanation that all the receipts of deposit of rent have been misplaced by the tenant. The entire record as well as affidavit filed by the tenant were minutely searched but the: plea taken by the counsel for the respondent was not found. It is also manifest from the record that the default in the payment of monthly rent is not on one occasion, rather admittedly for ten time, thus, cannot be termed as accidental. The wilful. Default in the payment of rent within 'due time has amply proved and even the tenant herself has admitted by stating that on ten occasions she has deposited the monthly rent after the due date i,e, 5th of each month.
8. In the case of M.H. Musaddaq v. Muhammad Zafar lqbal and another, reported as 2004 SCM R 1453, the august Supreme Court was pleased to rule that if the tenant failed to deposit *the amount of rent before 5th of each month, then under S.17(9) of Cantonments Rent Restriction Act, 1963, his defence would be struck off. The relevant para of the above quoted judgment is reproduced below:- "According to subsection (9) of Section 17 of the Act, if the tenant fails to deposit the amount-of rent before specified date, or as the case may be before 5th of the month, his defence shall be struck off. On its bare perusal, it is manifest that the above provisions are mandatory in nature and even one day's delay in making the deposit would be default within its meaning and Rent Controller has no power to extend time and condoned the same. To further fortify, reference can be made to the case of Misbahullah Khan v. Mst. Memoona Taskinuddin 1995 SCMR 287 in which this Court while interpreting the scope of section 17 of the Act, has held that tentative rent order can be passed by the Rent Controller even if ground of default is not alleged for seeking eviction. It is also observed that non-compliance with the tentative rent order is directly punishable and in Consequence the defence of tenant can be struck off and eviction can be granted. In the case of Province of Punjab and others v. Muhammad Jalil-ur-Rehman (1986 SCMR 1705), it has been held by this Court that the Rent Controller had no power to ignore the delay in making deposit of rent under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959). Similarly, in the case of Muhammad Muhammad Bashir and others (1990 SCMR 557) this Court refused to grant leave to appeal and dismissed the petition and maintained that the Rent Controller had no jurisdiction to condone one day's default in making deposit of the rent on due date".
9. In the case of Safeer Travels (Pvt.) Ltd., v. Muhammad Shaft through legal heirs reported as (PLD 2007 SC 504), the apex Court while dilating upon the subject of default in payment of the rent on or before 5th of each month, has discussed plethora of law and referred to numerous dictums of superior Courts was please to hold as under:- "S.16(2)---West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13(6)---Cantonments Rent Restriction Ordinance (XI of 1963), S. 17(9)---Failure of tenant to comply with tentative rent order of Rent Controller---Effect---Use of word "shall" had made obligatory for Rent Controller that in case of default, defence of tenant would have to be struck off---Once default was committed, then Rent Controller would have no jurisdiction and option, but to struck off defence of tenant".
10. The mandatory nature of the Court's orders as well as subsection (9) of Section 17 of the Cantonments Rent Restriction Act, 1963, has been discussed and approved in the numerous dicta by the august Supreme Court of Pakistan. In the case of. Muhammad Jan v. Khadim Hussain (1973 SCM R 243), the deposit of rent on the day following the last date with a plea that the default was due to the close of bank, was not condoned and the defence of the tenant was struck off. In case of Ghulam Ahmad Pirzada v. Additional district Judge, Lahore and 2 others (1982 SCM R 616), the plea of the tenant that the delay of only one day in each of few months due to misunderstanding on the part of the petitioner, who thought that he was required to deposit the rent on C the 15th of each month was not accepted and the order of striking of defence was upheld. Similarly, in case of Abdul Qayyum Paracha v. Ghulam Hussain and others (1985 SCM R 580), it was held that the Rent Controller, in case of default in deposit of rent beyond the due date, shall strike off the defence of the tenant and order his ejectment without taking any further proceedings in the case. In another case titled Fazal-ur -Rehman v. Mst. Sarweari Begum and others (1986 SCM R 1156), the delay of one day in deposit of the rent was not condoned and it was observed that the. Rent Controller- was competent to strike of the defence of the tenant as he himself took the risk of depositing the rent on the last date and the consequences thereof should also be borne by him. In this regard I am also fortified by the judgment of apex Court rendered in the case titled Province of Punjab and others v. Muhammad Jalil-ur-Rehman (1986 SCM R 1705), Muhammad Yousaf v. Muhammad Bashir and others (1990 SCM R 557) and Muhammad Amin v. Ghulam Nabi and 2 others (PLD 1990 SC 1201).
11. Further, as per agreement/rent deed, it has been agreed by the respondent that on yearly basis the rate of rent shall be increased according to Government increased market rate and in the similar circumstances the apex Court in the case of Messers AGFA Colour Services (Pvt.) Ltd v.
Muhammad Asad reported as 2006 SCM R 1537, held as under:- "S. 5-A---Enhancement in rent statutorily or under settlement between parties---Notice qua such enhancement to- tenant--- Entitlement---Statutory enhancement was automatic after each three years---Tenant was bound to make payment according to such settlement without notice for being aware of enhanced rent".
12. Seeking guidance and deriving wisdom from the above referred judgments one can reach to an irresistible conclusion that once a default is established, the Rent Controller has no other option but to pass an order for striking of the defence and put the landlord into possession of the suit premises. The learned Rent Controller while deciding the rent petition has not adverted to the legal aspects of the case, thus, has committed serious illegality, resulting into miscarriage of justice.
13. Consequently, this appeal is allowed, impugned judgment/order of the Rent Controller, Abbottabad Cantonment dated 4-12-2013 is hereby set aside and it is directed that respondent/tenant shall hand over the vacant possession of the suit premises to the appellant within a period of two months, failing which the petitioner shall evict the respondent/ tenant through proper course of law.