1. SALAHUDDIN AHMED, J.-This appeal by special leave of this Court is from an order of the erstwhile High Court of West Pakistan, dismissing a petition under Article 98 of the Constitution.
2. Leave has been granted to consider the question whether a previous default, committed prior to the promulgation of the Cantonment Rent Restriction Act, 1963, which had been wiped ,4 out by payment prior to the landlord making an application under the said Act for eviction, entitled him to maintain the application.
3. Appellant Samiullah occupied a shop as a tenant under respon--dent No. 3, Haji Muhammad Yousuf. On the 8th July 1962, the latter served a notice under section 106 of the Transfer of Property Act on the former terminating his tenancy with effect from 31st July 1962. The landlord followed it up by instituting on 14-9-1962 a suit in the civil Court at Rawalpindi for ejectment as well as for recovery of rent for the months of June and July 1962, and for compensation for use and occupation of the shop for the month of August 1962, at the same rate. While the suit was pending the Cantonment Rent Restriction Act, 1963, was promulgated. The Act placed certain restrictions on the ejectment of tenants in the Cantonment areas. In consequence of this new law, the suit was liable to fail and it was accordingly permitted to be withdrawn on 6th June 1963. On agreement between the parties, however, the landlord (respondent No. 3) was allowed on the same day to withdraw the arrears of rent which had been earlier deposited in Court by the tenant (appellant), and the landlord withdrew the rent. Thereafter, the landlord made an application under section 17 of the said Act on 5th August 1963, for ejectment of the tenant inter alia on the ground of default of payment of rent.
4. The Rent Controller granted ejectment to the appellant on grounds other than that of default of payment of rent. He held that there was no default of payment of rent on the part of the respondent No. 3. The appeal of respondent No. 3 from the aforesaid order of the Rent Controller was dismissed by the learned District Judge, Rawalpindi and ejactment was allowed on the sole ground of default of payment of rent by the tenant. The respondent's petition under Article 98 of the Constitution before the High Court was dismissed and he accordingly approached this Court and obtained leave to appeal.
5. Cantonment Rent Restriction Act (Act XI of 1963) came into force on the 27th April 1963, and section 17 of the Act which is material for our purposes is as follows :- "17.-(1) After the commencement of this Act, no tenant, whether before or after the termination of his tenancy, shall be evicted from the building in his possession or occupation in execution of a decree passed after such commencement, except in accordance with the provisions of this section.
(2) A landlord who seeks to evict his tenant shall apply to the Controller for an order in that behalf, and the Controller may, after giving the tenant a reasonable opportunity of show--ing cause against the application, make an order directing the tenant to put the landlord in possession, if he is satisfied that-
(i) the tenant has not paid or tendered the rent to the land--lord within fifteen days of the expiry of the time fixed in the agreement of tenancy for payment of rent, or in the absence of such agreement, within sixty days following the period for which the rent is due ; or
(3) If the Controller is not satisfied as aforesaid, he may make an order rejecting the application.
6. It is thus evident that it is only when a tenant has not paid the, rent and that rent is still outstanding against him that a landlord is entitled to maintain an application for eviction of his tenant under section 17(2)(i) of the Act. There is no question o" tendering of rent in this case.
7. As has been noticed already, the landlord had already received the rent which had been deposited by the tenant with the latter's consent and therefore, on the date when the landlord filed B the application for ejectment before the Rent Controller there was no rent outstanding against the tenant.
8. It has been contended on behalf of the tenant-appellant that respondent No. 3 having agreed to and accepted the aforesaid rent, there was a tacit waiver of forfeiture of the lease. He has in effect affirmed the continuance of the lease, and thereby determined the option of taking advantage of the forfeiture for condition broken. We accept this contention.
9. The appeal is accordingly allowed. We pass no order as to costs.