AURANGZEB, J.- This appeal has been preferred against the impugned order dated 17.04.2024, passed by the learned Rent Controller, Nowshera Cantt., whereby, the application filed by the respondents for striking off defence of the appellants, was allowed and they were directed to vacate the shop in dispute within 30-days and hand over its vacant possession alongwith all liability to the respondents.
02. In essence, the respondents instituted an ejectment/eviction petition for ejectment of the appellants on the grounds of default and personal need. It was averred in the petition that shop No.2, situated at Sher Shah Road, Nowshera Cantt., was rented out to one Jalal-ud-Din (predecessor of the respondents) by the Cantonment Board, Nowshera and in this respect, letter of Administration dated 02.01.2015 was issued in favour of the respondents by the learned Senior Civil Judge, Nowshera. The said shop was later on rented out to the respondents through fresh tenancy agreement vide letter dated 30.09.2015 by the Cantt. Board, Nowshera and the tenancy rights of the respondents were acknowledged by the Court of learned Senior Civil Judge, Nowshera vide order dated 20.10.2022 in petition No.30/6, instituted on 15.02.2022. It was further averred that the shop in question is in possession of the appellants in lieu of payment of monthly rent for a long time, but, they have now stopped the payment of rent due to some misconception of inheritance dispute in respect of the said shop, which controversy was later on decided in favour of the respondents by the civil Court, therefore, the appellants being defaulters are liable to be ejected from the suit shop, as, the respondents intend to start their own business in the shop in question. As per the contents of ejectment petition, the appellants were asked time and again to vacate the shop in question and pay the outstanding amount of rent to the respondents, but, they failed to pay the rent, which necessitated to file the ejectment petition on two grounds i.e. N default in payment of monthly rent and (ii) personal need.
03. On service of summons, the appellants put their appearance before the learned Rent Controller and contested the ejectment petition by filing their reply, raising therein, many legal and factual objections. In response, the respondents filed rejoinder to the reply submitted by the appellants.
4. During pendency of the ejectment petition, two applications were filed by the parties, one application was filed by the appellants for rejection of the ejectment petition on the ground of non- maintainability, while the other application was filed by the respondents for striking off defence of the appellants. After hearing arguments on the application for non-maintainability submitted by the appellants, the same was dismissed vide order dated 20.03.2024, while the application of the respondents for striking off defence of the appellants was accepted vide order dated 17.04.2024.
Hence, this regular first appeal.
5. I have heard arguments of the learned counsel for the parties at length and perused the record with their valuable assistance.
6. Perusal of the record reveals that the respondents filed an ejectment/eviction petition before the learned Rent Controller, Nowshera against the appellants on two grounds i.e. N default in payment of monthly rent & (ii) personal need. The said petition was contested by the appellants by filing their reply, to which, the respondents filed their rejoinder. During pendency of the eviction petition, two applications were filed by both the parties, one was filed by the appellants for dismissal of the ejectment petition on the ground of non-maintainability, which was dismissed/rejected vide order dated 20.03.2024, while the other application was filed by the respondents for striking off defence of the appellants, which was allowed vide order dated 17.04.2024.
07. Coming to the application of the appellants for dismissal of the eviction petition on the ground of non-maintainability. It was averred in the said application that the respondents are neither owners of the disputed shop nor the sole legal heirs of the legacy of Jalal-ud-Din and the letter of administration issued by the Senior Civil Judge, Nowshera is subjudice before the Court of ADJ, Nowshera and that the appellants are co-partners with the other legal heirs of said Jalal-ud-Din, therefore, the respondents cannot institute the petition against them. It is an admitted fact that the civil case pending before the civil Court has no nexus with the present controversy, as the same has other grounds, and as, the eviction application filed by the respondents and civil case filed by the appellants have different grounds, then how, the eviction petition filed by the respondents was not maintainable. Perusal of the record reveals that the respondents had applied for the grant of Letter of Administration under the Succession Act, 1925 regarding shop No.2, situated at Sher Shah Road, Nowshera Cantt., left by their predecessor namely Jalal-ud-Din sic) Minhaj-ud-Din, and their request was allowed and Certificate/Letter of Administration was granted to the respondents. The said Letter of Administration was also revised and Revised Letter of Administration was issued/granted to the respondents in respect of the shop in question.
8. Learned counsel for the appellant contended that the very ejectment petition was not maintainable as the same had not competently been filed, elaborating the ibid arguments on two grounds that neither the respondents are landlord nor there is any tenancy agreement between the appellants and respondent No.1.
9. Before I proceed further, I briefly considered the scheme of the Cantonments Rent Restriction Act, 1963. Under sub-section (2) of section 17 of the Cantonments Rent Restriction Act, 1963, a landlord has to apply to Controller; if he seeks to evict his tenant, on the ground mentioned thereunder. The Controller may pass an order of eviction after giving opportunity of showing cause against the application. The said sub-section cannot be set at motion unless it is established before the Controller that relationship of landlord and tenant exists. The words "landlord", "tenant" and "family" are defined in section 2 of the Act of 1963, which are reproduced, as under: - "(g) "Landlord" means any person for the time being entitled to receive rent in respect of any building whether on his own account or on behalf or for the benefit of any other persons, or as a trustee, guardian or receiver and includes a tenant who, being authorised under the terms of his lease so to do, sublets the building and every other person for the time being deriving title from the landlord"
"(j) "tenant" means any person who undertakes or is bound to pay rent as consideration for the possession or occupation of a building by him or by any other person on his behalf and includes: (0 any person who continues to be in possession or occupation of the building after the termination of his tenancy; and (ii) in the event of the death of the tenant, his heirs and successors and after the termination of the tenancy, his heirs and successors who continue to be in possession or occupation of the building."
"(e) `family" of a person means and includes a husband, wife, children, dependent parents, dependent brothers, unmarried or widowed sisters and a deceased son's widow and children residing with, and wholly dependent upon, that person".
10. According to section 2 (g) of the ibid Act, landlord means any person for the time being entitled to receive the rent in respect of any building whether on his own account or on behalf or for the benefit of any other persons. This definition encompasses not only the original owner but also any person currently entitled to receive rent, including those acting on behalf of others or in fiduciary capacities, as well as individuals who derived their title from the landlord.
11. The word "family" connotation was that married and independent son was not included in the definition of "family" under section 2 (e) of the Cantonments Rent Restriction Act, 1963. There was nothing in section 2 (e) of the Act of 1963 that children for whom a landlord sought ejectment of a tenant from premises shall be dependent upon the landlord/parents, even if a son of the landlord was earning of his own and not dependent upon his father/landlord, such son was also entitled to have premises vacated from the tenant for his personal use on such application having been made by his father. Reliance in this respect can be placed on the judgments reported as "Nawab Ali versus Dr. Umair Ikram" (2016 YLR 293), wherein, it has been held as under: - "(b) Cantonments Rent Restriction Act (XI of 1963)---S. 2(g)---"Landlord"--- Meaning---"Landlord" was any person for the time being entitled to receive rent with regard to any building whether on his own account or on behalf of or for the benefit of any other person.
12. Reliance can also be placed on the judgment reported as "Zulfigar All vs. Mrs. Wajiha Saleem"
(2014 YLR 1828), wherein, it was held as under: "(b) Cantonments Rent Restriction Act (XI of 1963)---S.2(g)---"Landlord"--- Meaning---Person entitled to receive rent in respect of any building whether on his own account or for the benefit of another person for the time being deriving title from the landlord could be termed as "landlord"
13. Similarly, in case reported as "Shahid Mehboob vs. Muhammad Ismail" (2008 CLC 87), it is held that: "(b) Cantonments Rent Restriction Act (XI of 1963)---S. 2(e)---Word "family"-- -Connotation--- Contention was that married and independent son was not included in definition of 'family" under S.2 (e) of Cantonments Rent Restriction Act, 1963---Validity---There was nothing in S.2(e) of Cantonments Rent Restriction Act, 1963, that children for whom a landlord sought ejectment of tenant from a premises should be dependent upon landlord/parent---Even if a son of landlord was earning of his own and not dependent upon his father/landlord, such son was also entitled to have premises vacated from tenant for his personal use on such application having been made by his father--Ejectment application was maintainable on such plea.
14. Now the question before this Court whether the relationship between the appellant and respondents as landlord and tenant exists, perusal of the record revealed that the present appellant admitted the fact narrated by the respondents in para No.5 of the eviction petition that "Since long the shop in question is in possession of respondents in lieu of payment of monthly rent", in reply to the above para No.5, it was mentioned that "That in para No.5 is correct moreover the respondents was tenant from their father time when he was running shop life through Atta- ud-Din deceased and now-a-days, Iftikhar-ud-Din is paid monthly rent and cantonment charges etc in bank".
15. From the above admission, it is crystal clear that relationship between the parties as landlord and tenant exists. This fact was further elaborated by the appellant who annexed the rent receipt challan dated 30.04.2024, Rs.5000/- in the name of respondent No.1, which clearly indicates that the appellant paid partial rent to respondents. The receipt is marked "H" on page No.61, meaning thereby that the appellant used to pay the rent to the respondents, hence, the respondents are the landlord and the relationship of landlord and tenant exists between the parties.
16. The respondents filed the ejectment petition on two grounds i.e. (0 personal need & (ii) default in payment of monthly rent. Under the Cantonments Rent Restriction Act, 1963 acknowledges, the landlord has the right to reclaim their property for bonafide personal use, irrespective of the existence of a written tenancy agreement, however, the landlord must provide credible evidence to support the claim of genuine personal need. The Court carefully assess the authenticity of such claim to balance the interest of both landlord and tenant.
The absence of a written agreement does not preclude the landlord from exercising this right, but, subject to certain conditions. The landlord must convincingly demonstrate that the need for the property is genuine and not a pretext for eviction, this involves providing credible evidence to substantiate the personal requirement, the bonafide requirement can encompass various personal uses, such as residential purposes or initiating a business. Notably, the landlord is not obligated to specify the exact nature of the intended business or possess prior experience in the proposed venture, if the landlord possesses other suitable properties that can fulfill the stated need, the claim of bonafide personal requirement may be weak and the availability of alternative accommodation is a factor considered by the rent Controller when assessing the genuineness of the landlord's claim.
17. Now adverting to the application filed under section 17(9) of the Cantonments Rent Restrictions Act, 1963 by the respondents for striking off defence of the appellants. It is reflected from the record that the learned counsel for the appellants was directed on so many dates to argue the initial arguments on the tentative rent, but, he failed to argue. The appellants were directed to deposit the monthly rent with effect from 01.09.2023 to February 2024 within one month vide order dated 14.02.2022, but, the order of the Court was not complied with by the appellants therefore, in terms of section 17 (9) of the Cantonments Rent Restrictions Act, 1963, the learned Rent Controller, Nowshera struck off defence of the appellants. It will be advantageous to reproduce sections 17 (8) and 17 (9) of the Act ibid, which are as under: - "17 (8) On the first hearing of proceeding under this section or as soon thereafter as may be put 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"
18. Section 17(8) of the Act of 1963 mandates that during eviction proceedings, the Rent Controller directs the tenant to deposit all due rent by a specific date, continue depositing monthly rent by the 5th day of each month until the case concludes, if there is a dispute over the rent amount, the Controller shall determine an approximate sum for deposit. Failure to comply, allows the landlord to request the striking off of the tenant's defence. Section 17(8) balances the interests of landlord and tenants ensuring rent is paid during dispute, while also providing a mechanism to address disagreement over rent amounts.
19. Each impugned order giving rise to the respective appeal is reflective of the abortive tenant, here the appellant, as to how he/they failed in payment of rent for the indicated month/period. The law on the subject is lucid and puts nobody in two minds that in case where a tenant fails to pay the rent for a specific period notwithstanding clear direction by the Rent Controller then next provision of law i.e. section 17 (9) of the Act of 1963 shall come into play to attend the situation, for convenience prupose, section 17 (9) of the Act of 1963, is reproduced as under: - "17 (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.
20. The incessant failure on the part of the appellant to have fulfilled the obligation as tenant towards the respondents being the landlord has exposed them to the unforgivening section of law qua the attending circumstances. 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 versus Muhammad Khalid Shafi through Legal Heirs" reported as (PLD 2007 SC 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---".
21. In this respect, further reliance can be placed on the judgments reported as "Ishaq Khan vs. Rabina Asir (2023 YLR 1743), wherein, it is held as under: - "----Ss. 17(8) & 17(9)---Eviction of tenant---Default in payment of rent and sub-letting---Order of the Rent Controller to deposit interim rent, non-compliance of--Scope and effect---Ten (10%) annual increase in monthly rent was incorporated in the rent agreement made between the parties--Rent Controller issued specific order, against the tenants, under S. 17(8) of the Cantonment Rent Restrictions Act, 1963, ('the Act 1963) directing not only to deposit arrears of rent spanning last 13 (thirteen) years but also to deposit an amount comprising 10% annual increase in monthly rent as per agreement---Tenants/appellants did not comply with the order regarding 10% annual increase amount---Rent Controller struck down the defence of tenants/appellants under S. 17(9) of the Act, 1963 and passed eviction order---Held, that Ss. 17(8) & 17(9) of the Act, 1963, in view of the word "shall" used therein, were mandatory in nature and tenants/appellants were required to comply with the specific order in letter and spirit for the reason that the said provisions carried a penalty of striking down of the defence of tenants--No proof was brought on record by the tenants/appellants that they, in addition to rent, had also deposited 10% annual increase amount---Due to non-compliance of specific order, they (tenants) had committed willful default and the Rent Controller was justified to strike down their defence and to order their eviction---No illegality or infirmity was found in the eviction orders passed by the Rent Controller- - Appeals were dismissed, in circumstances."
22. Further reliance can be placed on the judgment reported as "Raza Khan vs. Haji Javaid and others" (2023 YLR 367), wherein, it was held that: - "----S. 17---Ejectment of tenant---Striking of defence---Default in payment of monthly rent--- Scope--Appellants were tenants and their defence was struck of due to their failure to deposit monthly rent and eviction order was passed by Rent Controller---Validity---Tenant had no option left to delay making deposit as each day after 5th of each month would fall within the definition of "default"---Default of numerous days when appellant was supposed to deposit defaulted monthly rent with the Court of Rent Controller---On failure of appellant to deposit even a single day after its due date was over, it was incumbent upon Rent Controller to strike the defence within the meaning of S.17(9) of Cantonments Rent Restriction Act, 1962---High Court declined to interfere in eviction order as there was refusal and non-payment of monthly rent along with arrears which were due against tenants who willfully defaulted---Appeal was dismissed, in circumstances."
23. From bare perusal of the above sections of law, it is crystal clear that if a tenant fails to deposit the monthly rent before the specified date, his defence, if he is a respondent, shall be struck off, and the landlord shall be given vacant possession of the shop/building without any further proceedings.
24. I find no illegality, irregularity or jurisdictional defect in the impugned order(s) of the learned Court below, calling for interference.
25. For what has been discussed hereinabove, this appeal being bereft of any merit is hereby dismissed.