' This Constitutional Petition calls in question the order dated 19-12-1979 passed by the learned Additional District Judge, Rawalpindi, viz. respondent No. 3, whereby he accepted the appeal of respondents No. 1 and 2 against the petitioner impugning the order dated 5-7-1977 of ejectment passed by the learned Rent Controller against respondents No. 1 and 2.
2. The dispute relates to Shop No. 47/3, Bank Road, Rawalpindi Cantt. belonging to the petitioner which was rented by Ghulam Abbas respondent No.1. On 1-6-1974, the petitioner filed ejectment petition before the learned Rent Controller Rawalpindi Cantonment seeking the eviction of the respondents from the tenanted shop on the grounds of default in payment of rent and sub-letting of the premises by respondent No. 1 to respondent No. 2 without the consent of the landlord. The ejectment application was resisted by the respondents and on the pleadings of the parties, the learned Controller framed the following issues: -
(i) Whether the petitioner has no cause of action;
(ii) Whether the petition is misconceived and mala fide?
(iii) Whether the respondents are rent defaulters?
(iv) Whether respondent No. 1 has sub-let the suit property to respondent No. 2?
3. The petitioner-landlord in support of his cantentions examined P.W.
2. Altaf Hussain while he himself came into the witness box as P.W.
1. The petitioner himself deposed that since February, 1974, rent was not paid to him by respondent No. 1 and that Ghulam Abbas respondent No. 1 who had in fact rented the shop from the petitioner had himself left for England in 1974 and since then he had not come back. He instead of restoring the possession of the shop to the petitioner-landlord passed on its possession to his brother respondent No. 2 who previously used to run a separate shop in front of the shop in question. Altaf Hussain P.W. 2 also supported the testimony of the petitioner to this effect that respondent No. 1 had gone to England and while leaving for England, he entrusted the possession of the shop to his brother Ghulam Mustafa respondent No. 2.
4. The respondents examined P.W. 1 Mushtaq Ahmad son of Abdul Razzak, P.W. 2 Mushtaq Ahmad son of Muhammad Sadiq and respondent No. 2 came into the witness box as P.W.
3. These P.Ws. stated that since 1965-66, Ghulam Mustafa, respondent No. 2 was in possession of the shop in question alongwith Ghulam Abbas respondent No. 1 and that on earlier occasions prior to 1974, Ghulam Abbas once or twice went to England and in his absence, business was run by Ghulam Mustafa alone in the tenanted premises without any objection by the petitioner. Ghulam Mustafa further disclosed that rent was paid upto date to the petitioner who used to receive rent sometimes after two months, sometimes after four months. Ghulam Mustafa, however, admitted that the tenancy was not settled with him by the petitioner but the same was settled with Ghulam Abbas respondent No.
1. It is also not denied that since 1974, Ghulam Abbas respondent No. 1 had not come back from England.
5. On the basis of parties evidence and after hearing them, learned Rent Controller found all the issues against the respondents. He held that respondents were defaulters in payment of rent and that respondent No. 1 had sub-let the shop to respondent No. 2 before he left for England.
Consequently, vide his order dated 5-7-1977, he directed the ejectment of the respondents from the shop.
6. The respondents preferred appeal and the learned Additional District Judge Rawalpindi vide his impugned judgment found that though technically the respondents were defaulters in payment of rent, but their default was not wilful and consequently they deserved exercise of discretion in their favour. As regards the allegation of subletting of the shop, he found that even on earlier occasions, when respondent No. 1 used to go to England for intervals of a year or so, respondent No. 2 carried on the business in that shop within the knowledge of the petitioner, therefore, it was a case of waiver and the petitioner was estopped from raising the plea of sub-letting of shop by respondent No. 1 to respondent No.
2. In view of these conclusions, he accepted the appeal and dismissed the ejectment petition with costs throughout.
7. So far as the default in payment of rent by the tenants is concerned, a unanimous finding has been recorded by the Rent Controller as well as by the appellate authority that the respondents were defaulters in payment of rent. The appellate authority, however, has further found that on previous occasion, the landlord received rent after intervals of two and three months without any objection, therefore, discretion could be exercised in favour of the tenants. Under the provisions of section 17(2) (i) of the Cantonment Rent Restriction Act, 1963, a tenant who has not paid or tendered rent to the landlord within 15 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 60 days following the period for which the rent is due, is liable to be evicted. In the present case, there is no agreement of tenancy and, therefore, the liability of the tenant to ejectment for non-payment of rent in such case takes place if the tenant fails to pay the rent within 60 days following the period for which rent is due.
8. According to the parties evidence on the record, it transpires, that since February 1974, the respondents failed to pay rent to the petitioner. The ejectment petition was filed on 1-6-1974. This shows that at the time of institution of the ejectment petition, the respondents had already committed default in regard to payment of rent for the months of February and March, 1974. The mere fact that on earlier occasions, sometimes the landlord accepted the payment of rent after intervals of 2/3 months cannot condone the default in payment of rent which amounts as such in accordance with statutory provisions of section 17 ibid. In His Holiness Dr. Syedna Muhammad Burhanuddin Saheb v. M/s Abdul Rehman Abdul Ghani PLD 1981 Kar. 164, it was held that the periodical acceptance of accumulated rent without any objection by the appellant by itself did not amount to alteration of terms and conditions of written tenancy agreement, if any, or the provisions of law for payment and tender of rent by the tenants as laid down in the Rent Restriction Act. The parties cannot contract themselves out of the provisions of law nor can any party plead a practice contrary to law. The tenant required by law to pay rent by a specified time cannot allege contract or practice to get out of such obligation. The mere fact that the landlord accepted delayed payment of rent in the past cannot be said to have given rise to a practice for tenant to make delayed payment in derogation of the provisions of the Rent Restriction Act. In Abdul Rashid v. Saleh Muhammad 1980 SCMR 506, it has been ruled by the Supreme Court of Pakistan that it had been held time and again that the parties cannot contract themselves out of the provisions of law on the subject, namely, The West Pakistan Urban Rent Restriction Ordinance. Similarly, neither party can plead a practice which is contrary to the said law. Moreover, the mere fact that a landlord accepts a delayed payment of rent by the tenant on a number of occasions cannot be said to have given rise to any practice whittling down the requirement of law that the rent has to be paid by the tenant by the 15th of every month. Similar view was expressed by the Supreme Court of Pakistan in Nlirza Abdul Aziz Beg v. Mushtaq Ahmad Sheikh 1980 SCMR 834 Needless to add that the provisions of section 13 of the West Pakistan. Urban Rent Restriction Ordinance, 1959 are analogous to those of section 17 of the Cantonment Rent Restriction Act, 1963.
9. Certain authorities have been quoted by the learned counsel for the respondents about the exercise of discretion in favour of the tenant in case of default in payment of rent for a month or so but they are all distinguishable on merits. The learned appellate authority observed: "I hold that technical default in payment of rent for the months of February and March, 1974, was not serious to be visited with appellant's (respondent in the present Constitutional Petition) ejectment order".
' The view taken in the matter by the learned appellate authority is legally erroneous because there was no justification whatsoever for the respondents' failure to pay the rent for a period of two months, viz. February and March, 1974, till June 1974.
10. As regards the plea of sub-letting the shop by respondent No. 1 to respondent No. 2 is concerned, it is a common ground between the parties and it has also been admitted in the written statement filed before the Rent Controller by the respondents that Ghulam Abbas respon dent No. 1 had obtained the disputed shop on rent from the petitioner. All the receipts of rent have been issued by the petitioner in the name of the said respondent (No. 1). A few receipts, viz. exhibit R1 to R5 have been brought on the record. They also show that through these receipts, payment of rent was acknowledged by the petitioner from respondent No.
1. Respondent No. 2 does not in any manner figure in these receipts. It is thus fully established that relationship of landlord and tenant in regard to the shop in question exists between the petitioner and respondent No.
1. It has been admitted by respondent No. 2 and other P.Ws. that respondent No. 1 went to England in 1974 and thereafter he did not return. Since then respondent No. 2 is carrying on business in the said shop. It has, however, been stated by respondent No. 2 and his witnesses that even earlier to 1974, respondent No. 2 carried on business in the shop in question jointly with his brother, viz. respondent No. 1 and even in his absence when on previous occasions also he went out of country, for instance in 1970-71.
11. The petitioner, however, led evidence to show that previously respondent No. 2 worked on the shop of his younger brother on Cantt. Road. He has further stated that when he learnt that Ghulam Mustafa respondent No. 2 was carrying on business in the shop in question, he filed the ejectment petition. In M/s. Premier Mercantile Service and another v. S.M. Yunus and two others PLD 1982 SC 79 on the dissolution of a registered partnership, a private limited company was constituted without informing or getting permission from the landlord. In such eventuality, it was held by the Supreme Court of Pakistan that a distinct legal entity having altogether different, rights and liabilities with regard to third parties including the landlords, having been brought into existence, such change not to be unilaterally brought about by the tenants to transform their very legal existence in a manner to effect liability. It was further held that the tenant having permitted itself to be dissolved and then substituted by different legal entity was liable to eviction for having not taken the landlord into confidence. In the present case, the tenant himself left for England and handed over the possession of the shop to his brother who carried on business in that shop without the consent and permission of the landlord. This clearly amounts to sub-letting of the tenanted premises making the tenant liable to eviction under the provisions of the Cantonment Rent Restriction Act, 1963. The otherwise finding recorded by the learned appellate authority that even on previous occasions, respondent No. 2 carried on business in the shop when respondent No. 1 left for England without any objection by the petitioner amounts to waiver, is wrongful and not legally sustainable.
12. It is evident from the afore mentioned conclusions that while passing the impugned order whereby the learned appellate authority despite the default in payment of rent proposed to exercise discretion in favour of the tenants and also in spite of the fact that respondent No. 2 was found to be in possession of the tenanted shop while the tenant viz. respondent No. 1 had already left for England in 1974, set aside the plea of sub-letting on the ground of waiver, has acted in disregard of the judgments of the superior Courts apart from recording erroneous findings. In Muhammad Sharif and another v. Muhammad Afzal Sohail etc PLD 1981 SC 246, it has been held by the Supreme Court of Pakistan that the Constitutional jurisdiction of the High Court to interfere in rent matters is very limited and confined only to ascertaining whether the District Judge has not flouted the provisions of the relevant statute or has failed to follow the law relating thereto as laid down by the superior Courts. In the circumstances of the present case, as already observed, the District Judge has clearly disregarded the provisions of section 17(2) (i) of the Cantonment Rent Restriction Act, 1963, and has also acted in utter disregard of the law laid down by the superior Courts including the Supreme Court of Pakistan on the points of default in payment of rent and sub-letting of the tenanted premises. Incidentally, the learned counsel for the respondents has also placed reliance on this authority of the Supreme Court. It thus transpires that this is a fit case for the invocation of the extraordinary writ jurisdiction of the High Court.
13. In the light of the foregoing conclusions, the under consideration writ petition is allowed. The impugned order passed by the learned Additional District Judge Rawalpindi is declared to be of no legal effect and to have been passed without lawful authority with the result that the order of eviction dated 5-7-1977 passed by the learned Rent Controller Rawalpindi Cantonment is restored.
The respondents, however, are allowed three months' time from today for vacating the tenanted premises. The respondents shall also pay the costs of this Constitutional Petition to the petitioner.