' MUHAMMAD YOUNIS THAHEEM, J.---The instant writ petition has been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 with the following prayer:- "It is, therefore, most respectfully prayed that on acceptance of instant petition the impugned judgment and order dated 25.
2. 2016 of the learned Additional District Judge-II Swabi and impugned judgment and order dated 03.11.2015 of the Learned Civil Judge-IV/Rent Controller Swabi be set aside and by doing so the ejectment petition filed by the respondent/petitioner against the petitioner/respondent be dismissed with costs throughout.
2.Brief facts which are necessary for disposal of the instant writ petition are that respondent No,1 filed an ejectment petition against the petitioner 'in the court of the learned Senior Civil Judge/Rent Controller Swabi. The petitioner contested the said petition by submitting written reply. The ejectment petition was allowed after recording evidence, vide impugned judgment and order dated 3.11.2015 by learned trial Court of Rent Controller. Feeling aggrieved, the petitioner/respondent filed appeal in the court of learned District Judge, Swabi and same Rent Appeal was dismissed by the learned Additional District Judge-II, Swabi vide judgment dated 25.02.2016. Feeling still aggrieved with the above said orders/judgrnents, the petitioner invoked the constitutional jurisdiction of this Court via instant Writ Petition.
3.Learned counsel for petitioner argued that the shop was rented to him on the monthly rent Rs, 3500/- vide agreement deed No, 213 dated 1.3.2013 Ex.PW1/1 upon certain conditions. According to condition No,2 the landlord received Rs, 3,50,000/- as advance payment of rent of the shop and the possession of same shop was handed over to petitioner on the same date i,e, 1.3.2013. According to the agreement the monthly rent was to be deducted from the advance paid rent, so the period of rent was determined upto the adjustment of monthly rent from the advance paid rent worth Rs,3,50,000/- and this condition was overlooked, misread, misconstrued, not comprehended and considered properly by the two courts below and had passed the order for eviction while giving findings on issues Nos. 1, 5, 6 and 8 by the learned trial court. Similarly, this important legal position being mutually agreed by the parties in the shape of rent deed Ex:PW1/1 escaped the Judicial notice of the learned appellate Court as well and appeal was dismissed. He further argued that the respondent had filed the ejectment application in violation of terms and conditions of agreement.
He further argued that if respondent has any cause of action then that cause of action will be accrued to him after adjustment of entire received advance rent which had determined the period of rent between the parties about the suit rent shop.
4.On the other hand, the learned counsel for respondent argued that both the parties admit the agreement deed Ex.PW1/1 and in the same agreement it is one of condition that whenever the respondent/ applicant is in bona fide need of the shop he can evict the petitioner/tenant from the suit shop by serving him notice three months before filing eviction application and in compliance of this condition, the applicant/ respondent served tenant i,e, petitioner with notice Ex.PW1/2 for vacation of suit shop. The learned counsel further argued that landlord has proved his case by producing documentary as well as oral evidence and had served notice Ex:PW-1/2 upon. Petitioner.
So, the judgment and decree passed by the two courts are well reasoned, based on proper appreciation of evidence and rent deed Ex:PW1/1 according to law.
5. Arguments heard and record perused.
6. From perusal of record both the parties are in agreement over the document i,e, rent deed Ex.PW-1/1.
7. From the perusal of rent deed Ex.PW-1/1 and statement of few-1 and DW-1 it transpires that the same rent deed contains five conditions which are as follows:-- {{URUD TEXT}}
8. According to condition No,1, the rent of the shop has been shown paid in advance worth Rs, 3,50,000/- and the monthly rent will be deducted from the same advance paid rent @ Rs,3500/- per month. In the rent deed Ex.PW 1/1 there is no such other specific condition in rent deed that prior to the adjustment of entire 'paid rent amount the landlord would be entitled to evict the tenant' on such and such condition, so paid rent amount would commensurate the period of rent till last deduction from the advance paid rent. It is further inferred in the same rent deed there is no such clause about termination of rent agreement and its modalities as to whether the remaining unadjusted advance paid rent amount would be returned to the tenant with some profit or with some cost of fund for the amount which respondent had kept with him and had utilized it for his own benefit of beneficial interest. From the perusal of deed it divulges that no such clause exists in the said rent deed. From this it gives a firm view that actually the advance paid rent had determined the period of rent till adjustment of paid rent worth Rs,3,50,000/- and petitioner will keep the shop in his possession as tenant till final deduction of monthly rent from the advance paid rent. However the condition No,2 is prior to condition No,3 and if the landlord is in need of the shop then he could vacate it after complete adjustment of advance paid rent. So, the serving of said notice prior to entire adjustment of advance paid rent is pre-mature and based on mala fide.
Reliance is placed on Mrs. Zehra Begum's case reported in 1992 SCM R 943.
' So in view of the above discussion the period of keeping possession of suit shop the period would commensurate from the advance payment. According to condition No,2 of the rent deed the respondent has been paid rent of the shop worth Rs,3.50,000/- and respondent has admitted and signed the same deed in evidence and he as witness has also admitted the same rent deed so this condition No, 2 is important but the learned two courts below had wrongly interpreted the said condition No,2 of the rent deed.
9. Thus in view of the above, this court is of the view that according to condition No,2 up till entire adjustment of the Rs,3,50,000/- the respondent cannot legally evacuate the shop from the petitioner and if it was the intention of the parties then this condition would had been incorporated in the rent deed which is missing. Both the parties are bound by the terms and conditions of the agreement.
' Reliance is placed on Haji Abdul Qair's case reported in 2001 YLR 1979.
10. So as discussed above, the orders/judgments of fora below are held as wrong, the result of misconstruing and misreading of rent deed and due to wrong interpretation of rent deed, injustice has been caused to petitioner thus in exercise of powers under Article 199 of the Constitution of Pakistan, this Court set aside both the orders/judgments of respondents Nos. 2 and 3 and this petition is allowed and eviction application is dismissed with costs.