Through this single judgment, the Court intends to set forth decision in thirty-five appeals, as identical questions of law and facts are involved in these indistinguishable appeals with the following particulars:
1. FAO No. 51-P/2022 with CM No. 233-P/2022 (Raza Khan vs. Haji Javaid & others).
2. FAO No. 52-P/2022 with CM No. 234-P/2022 (Muhammad Naeem Khan vs. Shahzeb & others).
3. FAO No. 53-P/2022 with CM No. 235-P/2022 (Farooq Khan vs. Shahzeb & others).
4. FAO No. 54-P/2022 with CM No. 236-P/2022 (Noor Khan vs. Haji Javaid & others).
5. FAO No. 55-P/2022 with CM No. 237-P/2022 (Saleem Khan vs. Haji Javaid & others).
6. FAO No. 56-P/2022 with CM No. 238-P/2022 (Rehmat Shah & another vs. Shahzeb & others).
7. FAO No. 57-P/2022 with CM No. 239-P/2022 (Asad Khan vs. Shahzeb & others).
8. FAO No. 58-P/2022 with CM No. 240-P/2022 (Muhammad Jameel & another vs. Haji Javaid & others).
9. FAO No. 59-P/2022 with CM No. 241-P/2022 (Sheraz Khan & another vs. Haji Javaid & others).
10. FAO No. 60-P/2022 with CM No. 242-P/2022 (Saleem Khan vs. Shahzeb & others).
11. FAO No. 61-P/2022 with CM No. 243 P/2022 (Asad Ullah vs. Shahzeb & others).
12. FAO No.,62-P/2022 with CM No 244-P/2022 (Muhamad Kamal & another vs. Haji Javaid & others).
13. FAO No. 63-P/2022 with CM No. 245-P/2022 (Khayal Gul vs. Shahzeb & others).
14. FAO No. 64-P/2022 with CM No. 246-P/2022 (Ibrahim Khan vs. Shahzeb & others others).
15. FAO No. 65-P/2022 with CM No. 247-P/2022 (Malyar vs. Shahzeb & others others).
16. FAO No. 66-P/2022 with CM No. 248-P/2022 (Adnan vs. Shahzeb & others others).
17. FAO No. 67-P/2022 with. CM No. 249-P/2022 (Shakir Khan vs. Haji Javaid & others).
18. FAO No. 68-P/2022 with CM No. 250-P/2022 (Raees Khan vs. Shahzeb & others).
19. FAO No. 69-P/2022 with CM No. 251-P/2022 (Amin Ullah vs. Shahzeb & others).
20. FAO No. 70-P/2022 with CM No. 252-P/2022 (Afsar Khan vs. Shahzeb & others).
21. FAO No. 71-P/2022 with CM No. 253-P/2022 (Ameen Ullah vs. Shahzeb & others).
22. FAO No. 72-P/2022 with CM No. 254-P/2022 (Shakir vs. Haji Javaid & others).
23. FAO No. 73-P/2022 with CM No. 255-P/2022 (Shakir Khan vs. Shahzeb & others).
24. FAO No. 74-P/2022 with CM No. 256-P/2022 (Khan Gul & another vs. Shahzeb & others).
25. FAO No. 75-P/2022 with CM No. 257-P/2022 (Muhammad Murtaza vs. Shahzeb & others).
26. FAO No. 76-P/2022 with CM No. 258-P/2022 (Haji Shah Muhammad vs. Haji Javaid & others).
27. FAO No. 77-P/2022 with CM No. 259-P/2022 (Haji. Muhammad Farooq vs. Haji Javaid & others).
28. FAO No. 78-P/2022 with CM No. 260-P/2022 (Dilawar Khan vs. Haji Javaid & others).
29. FAO No. 79-P/2022 with CM No. 261-P/2022 (Shaukat & another vs. Shahzeb & others).
30. FAO No. 80-P/2022 with CM No. 262-P/2022 (Najeeb Ullah vs. Haji Javaid & others).
31. FAO No. 81-P/2022 with CM No. 263-P/2022 (Haji Shah Muhammad vs. Shahzeb & others).
32. FAO No. 82-P/2022 with CM No. 264-P/2022 (Ghulistan vs. Haji Javaid & others).
33. FAO No. 83-P/2022 with CM No. 265-P/2022 (Noor Khan vs. Shahzeb & others).
34. FAO No. 84-P/2022 with CM No. 266-P/2022 (Nusrat Khan vs. Shahzeb & others).
35. FAO No. 85-P/2022 with CM No. 267-P/2022 (Saifor Rehman vs. Haji Javaid & others).
2. To understand the background of the instant round of legal action, it merits to mention that respondents of these appeals as petitioners had filed separate eviction petitions against the respective appellant(s) under the Cantonment Rent Restriction Act 1963 ("the Act") before the learned Rent Controller, Cantonment Board Nowshera (Rent Controller) involving the corresponding shops (disputed shops) situated at New Gul Cloth Market near Taqwa Masjid, District Nowshera on the ground of default in payment of monthly rent.
3. Subsequent to the service process by the learned Rent Controller, as transpires from the record, the appellant(s) responded to the petition through written reply. Nevertheless, during the course of trial, due to failure to comply with the order to deposit the monthly rent, respondents filed an application for striking of the defence of appellant(s) seeking his/their eviction from the respective shop. The appellant(s) contested the application in writing and after hearing the two sides, the learned Rent Controller agreed with the respondents' stance and vide order dated 09.02.2022 (impugned order) struck of the defence of appellant(s) under Section 17(9) of the Act with further directions to appellant(s) to vacate the disputed shop(s) within 30 days, hence, the appeals with the prayer for setting aside the verbatim impugned order (s).
4. Arguments of learned counsels for the parties heard at length and available record gone through.
5. As it depicts from the contents of each eviction petition that pertaining to the relationship of landlord and tenant certain amount was fixed as monthly rent which is due from January, 2021 but the tenant has defaulted contesting neither the rent is liable for its payment nor the premises are to be vacated thus, while notices were served for the payment of the rent, on prevarication, the petitions for eviction were filed before the learned Rent Controller, Cantonment Board, Nowshera.
On its reply through written statement in each petition various reasons were given for non- payment thereafter an application under Section 17(9) of the Cantonments Rent Restrictions Act, 1963 was preferred in each petition to strike of the defence of the tenants, such application was replicated and upon impugned order in each petition in verbatim form, the learned Rent Controller, Cantonment Board, Nowshera through a speaking order in utter non-compliance of the provisions of Section 17 (8) of the Act ibid the order was carried for ejectment of each tenant. The impugned order of the learned Rent Controller derives its strength from the alleged non-compliance of the spirit of Section 17(8) of the Act by the appellant(s) as reference to this provision of law is deemed essential which is as under:
17. Eviction of tenant......
(8) On the first hearing of proceedings 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.
6. Each impugned order giving rise to the respective appeal is reflective of the abortive tenant, here the appellant(s), as to how he/they failed in payment of rent for the indicated months/period. The law on the subject is lucid and puts nobody in two minds that in a case where a tenant fails to pay the rent for a specified period notwithstanding clear directions by the Rent Controller then the next provision of law i.e. Section 17(9) of the Act shall come into play to attend the situation. For convenience purpose, Section 17(9) of the Act is reproduced:
17. Eviction of tenant....... .
(9) If the tenant fails to deposit the amount of rent before the specified date or, as the, case may be, before the 5th day of the month, his application, if he is a petitioner, 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.
The incessant failure on the part of the appellant(s) to have fulfilled the obligation as tenant towards the respondents being the landlords has exposed them to the unforgiving section of law qua the attending circumstances.
8. Besides, the supra discussed articulate statutory directives, there are plethora of judgments of the Superior Courts of the country in the similar issue for guidance and reliance. The august Supreme Court of Pakistan in the case of Safeer Travels (Pvt) Ltd vs. Muhammad Khalid Shafi through legal heirs reported as PLD 2007 Supreme Court 504 has held as under: "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-Exceptions stated."
In another case titled M.H Mussadaq vs. Muhammad Zafar Iqbal & another reported as 2004 SCMR 1453 has offered guidance in alike issues with the following observations: "Default--Striking off defence--tentative rent order, non-compliance of--default of few days in deposit of tentative rent--Rent Controller passed tentative rent order and directed the tenant to deposit the same within specified period--tenant deposited the rent with a delay of three days in first month And with a delay of ten days in subsequent month--rent controller struck off the defence of the tenant and passed eviction order Validity--if the tenant failed to deposit the amount of rent before specified date, or, as the case may be, before 5th of each month, then under Section 17(9) of the Cantonments Rent Restriction Act, 1963, his defence would be struck off- -Even one day's delay in making the deposit would be default within the meaning of S. 17(9) of Cantonments Rent Restriction Act, 1963, as the same was mandatory in nature and Rent Controller had no power to extend time and condone the delay--Tentative rent order could be passed by the Rent Controller even if ground of default was not alleged for seeking eviction--Non- compliance with the tentative order was directly punishable and in consequent the defence of tenant could be struck off and eviction could be ordered Supreme Court maintained the eviction order passed by the Ren Controller-Leave to appeal was refused."
Equally this Court in its decision rendered in 2015 M LD 1342 Peshawar titled Dr. Muhammad Safdar vs. Mst. Shahista Amjad, has explained how willful default on the part of tenant shall attract punitive reaction in the light of Section 17(9) of the Act. The judgment precisely provides as: Section 17(8)(9)--Willful default--Striking off defence--Tentative rent order, non-compliance of-- "Default of few days in deposit of tentative rent--Rent Controller passed tentative rent order and directed the tenant to deposit the same within specified period--Tenant deposited rent with delay of few days every month--Rent Controller rejected ejectment petition of landlord--Validity--When tenant failed to deposit the amount of rent before specified date or before 5th of each month, under S. 17(9) of Cantonments Rent Restriction Act, 1963 his defence would be struck off--Even one day's delay making the deposit would be default within the meaning of S.17(9) of Cantonments Rent Restriction Act, 1963--When default was established Rent Controller had to struck off right to defend and put landlord in possession of suit premises--Appeal was allowed in circumstances by setting aside order of Rent Controller.
8. It is copiously evident from the law on the issue and the recurring views of the Hon'ble Supreme Court of the land that a tenant has no option left to delay making the deposit as each day after 5th of each month would fall within the definition of default thus, where there is default of numerous days when appellant(s) were supposed to deposit the defaulted monthly rent with the Court of learned Rent Controller, Cantonment Board, Nowshera and on its failure to deposit even for a single day after its due date is over then it is incumbent upon the Rent Controller to strike the defence within the meaning Section 17(9) of the Act ibid the order of the learned Rent Controller would not be at all open to any intervention.
9. Over and above, the period coming in months for which the tenants have defaulted to deposit the rent and in utter non-compliance of the order of learned Rent Controller, Cantonment Board, Nowshera, this Court too in exercise of the powers under section 24 of Cantonments Rent Restrictions Act, 1963 (in an appeal) vide order dated 04.07.222 in each appeal after learned counsel for the parties during arguments at some length agreed that let the rent for the disputed shops/plaza be deposited with the learned Rent Controller, Cantonment Board, Nowshera on monthly basis in the first week of each month alongwith arrears from the date of institution of the main appeal. The office of learned Rent Controller, Cantonment Board, Nowshera through Zofishan Manzoor, Officiating the office of Rent Controller, Nowshera has further confirmed that as per order of Hon'ble Peshawar High Court, Peshawar the tenants/appellant(s) in each appeal failed to comply the order by depositing the-rent alongwith arrears till 22.07.2022.
10. The tenants/appellant(s) before this Court, seems to be interested in the vacation of their respective shops that is why they have not acted upon the directives of the learned Trial Court by depositing the monthly rent alongwith arrears and likely of this Court when in clear terms they were directed to deposit the monthly rent as well as arrears in the first week of each month.
11. This Court has no option but for the blatant refusal and non-payment of the monthly rent alongwith arrears, which are due against the tenants, have willfully defaulted thereby, certainly the order of the learned Rent Controller, Cantonment Board, Nowshera and even of this Court while striking of their defence shall follow.
12. In view of the above, the impugned order in each petition is not defenseless it being the result of correct appreciation of the facts of the case and the law applicable thereto and hence, this and the connected appeals as mentioned in para 1 of the judgment, are found without force and substance which thus stand dismissed. As a result, the appellant(s) (tenants) shall vacate the disputed shops by 30th September, 2022 with no further extension beyond this date. Needless to mention that the defaulted rent deposited with the learned Rent Controller, Cantonment Board Nowshera be allowed withdrawn to the respondents/landlords if an application is preferred for withdrawal in this behalf.