' ZAFFAR HUSSAIN MIRZA, J.-This petition for leave to appeal is directed against the judgment of the learned Chief Justice of the Peshawar High Court, Peshawar, whereby the petitioner's second appeal was dismissed.
2. The dispute in this case relates to property bearing Nos. 3446, 3446-1 and 3447, consisting of Garages, vacant site and Bus stand, situated at Ashraf Road, Peshawar City. This property was in the occupation of Hazrat Gul the predecessor-in-interest of petitioner Nasar Ali Raza as a tenant at a monthly rent of Rs,
160. Admittedly Hazrat Gul regularly paid rent to the respondents up to January, 1973, when the Evacuee Trust Board served a notice on Hazrat Gul to stop payment of rent to the respondents as the property under his occupation was an evacuee trust property. Thereafter the respondents entered into litigation with the Custodian Department for clearing their title and determination of the property. Hazrat Gul claiming no interest in the property except as a tenant, was not associated with this litigation. Eventually the Deputy Custodian of Evacuee Property, by his order, dated 28-12-1971, held that the property was not evacuee property but the private property of the respondent. This order was confirmed by the Custodian of Evacuee Property vide order, dated 5-9-1972.
3. During this period in which the proceedings were pending before the Custodian Authorities apparently Hazrat Gul did not pay rent to the respondents. However, on 16-3-1973, the respondents (landlords) brought an ejectment application against the petitioner and other legal representatives of Hazrat Gul. Since deceased had been succeeded by his legal representatives, on the allegation that in spite of demand after the order passed by the Custodian in their favour, the petitioner and others had failed to pay arrears of rent. Some other grounds were also taken but these are no longer relevant. The petitioner disputed the rate of rent claimed at Rs, 375 per month and asserted that he was prepared to pay the due rent as determined by the Court, although according to him the agreed rent was Rs, 160 per month. The allegation that a demand for payment of rent was made also denied. The Rent Controller accepted the petition of respondents and passed an order of ejectment against the petitioner on 19-4-1981. The appeal filed by the petitioner having failed in the Court of District Judge, Peshawar, he filed a second appeal before the High Court which was also dismissed vide the impugned judgment in this case.
' In support of the petition, Mr. S. M. Zaffar, first contended that the order of ejectment was passed contrary to the provisions of section 13 (2) (i) second proviso as inserted by West Pakistan Urban Rent Restriction (North-West Frontier Province Amendment) Ordinance, 1972, which read as under :- "Provided further that where the application made by the landlord is on the ground mentioned in clause (i) and the tenant on the first date of hearing admits his liability to pay the rent due from him, the Controller shall, if he is satisfied that the tenant has not made such default on any previous occasion, direct the tenant to deposit all the rent due from him on or before a date to be fixed for the purpose, and upon such deposit being made he shall make an order rejecting the application."
It is the submission of the learned counsel that all the requirements stipulated in the aforesaid proviso having been fulfilled by the petitioner, the Rent Controller was bound to reject the application for ejectment. It is next contended that in absence of reliable evidence that notice of demand for payment of rent arrears after the passing of the order declaring the property as non- evacuee property by the Custodian, the petitioner cannot be held to be willful defaulter. In any case, it is submitted these facts were sufficient for the exercise of discretion in favour of the tenant, who for no fault of his own, was prevented from paying the rent on account of cloud placed upon the title of the respondents. Learned counsel extended an assurance that if the respondents are prepared to do so, he would be willing to pay the arrears of rent for the entire period with effect from 13-1-1963 up-to-date, although in law a tenant can be compelled to pay arrears of rent for a period of three years prior to the institution of the ejectment application.
4. The points raised in the argument of the learned counsel seem to deserve consideration. We accordingly grant leave to appeal. Security in B the sum of Rs, 2,500 shall be furnished by the petitioner. The interim order passed by this Court shall continue.