' This appeal by Mst. Yasmin is directed under section 24 of the Cantonments Rents Restriction Act, 1963 (hereinafter called Act) against the order, dated 6-1-1986 passed by Mr. Saeedullah Chaudhri, Controller of Rents, Peshawar Cantt. Whereby, petition for eviction of respondent Rashid Ahmed from Shops Nos. 20, 21 and 32 situate in Saidan Shah Building, Peshawar Cantt., was dismissed leaving the parties to bear their own costs.
2. Facts relevant for the disposal of this appeal are briefly stated as:-- "Shops bearing Nos. 20, 21 and 32 were originally owned by Saidan Shah, father of the appellant, who had inducted the respondent as a tenant therein and later on gifted the said shops to the appellant. The said gift was confirmed by a decree passed by Senior Civil Judge, Peshawar, on 25- 5-1982 and it was vide notice Exh. AW-1/5 that appellant informed the respondent about the factum of transfer of the property by her father in her favour and demanded rent @ Rs, 500 per month per shop from him i,e, the rate which was prevalent at the time of transfer in her favour.
Since respondent had denied her entitlement to the said rent as well as to the arrears, she was constrained to file and eviction petition for eviction of the respondent on 7-1-1984 before the Controller of Rents, Peshawar Cantt."
' Respondent vide his application, dated 9-1-1984 registered as Case No, 3 (Misc.) of 1984 requested the said Court for premission to deposit the rent @ Rs, 500 per month for all the three shops w. e. f.
November, 1983. In this application both the appellant and her father Saidan Shah were impleaded as respondents and it was stated therein that the rent for all the three shops is paid Rs, 500 per month and has been so paid upto October, 1983. The learned Rent Controller without issuing a notice to the respondents and holding an enquiry vide order, dated 30-1-1984 alloWed the application but it was clearly stated therein that the said permission is without prejudice to the rights of the landlord/landlady.
' In the ejectment petition filed on 7-1-1984 which was registered as Case No, 5 of 1984 when the respondent appeared he filed his written statement and stated therein that rent for all the three shops was Rs, 500 per month and has been so paid upto October, 1983 to Saidan Shah. Replication to this written statement was also filed and thereafter, the learned Controller of Rents passed an order on 26-3-1984 under section 17 (8) of the Act. Since the rate of rent and arrears of rent were in dispute, therefore, the rate of rent was tentatively fixed as 1,000 per month and respondent was directed to deposit the arrears before 27-4-1984 and also continue depositing at the aforsaid rate of Rs, 1,000 per month till the final decision of the case. Respondent did not comply with the said order instated nstated moved an application on 28-4-1984 for consideration of the order for deposit of rent. In the said application he referred to his application for deposit of rent (Case.. No 3 (Misc.) of 1984) as a pending one and requested that the said application should be disposed of first or both should be consolidated. The Controller of Rents vide his order, dated 14-5-1984 dismissed the application moved on 28-4-1984 and held that since the respondent has failed to comply with the direction of the Court and not deposited the full amount of arrears of rent, his defence was, therefore, struck-off and orders for his ejectment were passed under section 17 (9) of the Act.
' Feeling aggrieved respondent preferred an appeal against the orders, dated 14-5-1984 before the then appellate forum (District Judge) which was accepted vide order, dated 18-9-1984 with the following concluding para:- "Accordingly, I am constrained to accept this appeal, set aside the impugned order of ejectment passed under section 17 (9) of the Act and remit the case back to the Controller for re-decision of the question of default after holding an enquiry as to whether it was wilful. The record of the case shall be forthwith sent back. No order as to costs. Parties are directed to appear before Controller of Rents on 1-10-1984."
' On the said date when the case came up before the Trial Court both respondent and his counsel absented themselves and thus.Ejectment order were again passed against him on 1-10-1984.
' Once again the respondent assailed the said order before the District Judge, Peshawar, who vide his order, dated 24-11-1984 accepted the appeal and again sent the case back to the trial Court for re-decision in the light of his judgment dated 18.9-1984.
' This time when the case came up before the Trial Court a detailed enquiry was held in the case by recording the statements of the parties and their witnesses Since the Court was required to see as to whether the non-compliance with the orders, dated 26-3-1984 was wilful or not, it was, therefore, decided that respondent would produce his evidence first and he thus examined himself as A. W.-1 and also produced two other witnesses as A. W.-2 and A W.-3 and then was examined R.W.-1 Saidan Shah father and special attorney of the appellant and who was the ex-owner of the property. It was, thereafter, that vide the impugned order, dated 6-1-1986 the Trial Court held that rate for all the shops was Rs, 500 per month and that there were no outstanding arrears against the respondent, the ejectment petition was, therefore, dismissed.
3. I have heard Mr. Abdul Aziz Kundi, Advocate for the appellant and Mian Hisamud-Din Advocate.
Counsel for the respondent at length and have gone through the record with their assistance.
4. It was contended by the counsel for the appellant that the Trial Court had acceded the remand order, dated 18-9-1984 and thus acted illegaly and without jurisdiction. To support his contention it was argued that the trial Court could not review the order of his predecessor passed on 26-3-1984 and had only to see as to whether non-compliance of the said order by the respondent was wilful or not; that the permission granted to the respondent as per Case No, 3(Misc.) of 1984 was one sided and without prejudice to the rights of the appellant; that respondent has admitted in his statement that he had the necessary means to comply with the order, dated 26-3-1984 but deliberately did not do so; that rate of rent for each of the shop is Rs, 500 per month and not less than that; respondent's own witness Hafiz-ur-Rehman Kiyani has admitted that Amjad Parvez and Naved Parvez, two other tenants in the same building, are paying Rs, 400 per month for their respective shops and that the said tenants were inducted month earlier than the respondent which fact also stands admitted by the respondent himself; that the trial Court has failed to appreciate the evidence on record where in respondent has admitted that he has not paid any rent to the appellant since the date of girt in her favour and had volunteered by giving a wrong statement that for the said period he was depositing rent in the Court. The learned counsel contended further that this statement of the respondent is wrong because the judicial record would clarify the position to the effect that rent at much lesser rate was being deposited by the respondent w. e. f. 1-11-1983 and not 25-5-1982, the date of Court decree. That respondent has in his own statement admitted that after the order, dated 30-1-1984 his application tearing No, 3 (Misc.) of 1984 did not remain pending and was decided. To contend further it was stated that the learned trial Court has based its finding on meterial which is not available on the record of the case and in this respect reference was specially made to page 4 of the impugned judgment where the trial Court has referred to certain cases. That the years of commencement of the tenancy in these cases was not determined by the Trial Court and that in any case without there having been any thing on the record in respect of those cases the Trial Court could not legally refer to and rely on the said cases and in this respect appellant was kept totally ignorant. It was also contended that in case the order dated 26-3-1984 was an appropriate determination of rent and respondent could not justify himself by non-complying with the said order on the pretext which are unwarranted under the law. Reliance in this respect was placed on the following case-law besides section 17 (8) and (9, of the Act:-
(1) Sheikh Aziz v. Sardar Muhammad Roshan 1982 CLC 2598 order directing tenant to deposit arrears of rent and further rent -can neither be reviewed nor recalled by Rent Controller-Fresh order passed by Rent Controller with modification in his earlier order unwarranted.
(2) Ziaullah Shah v. Syed Riaz Ahmad 1981 SCMR 538.
(3) M. Nazir v. S. Shaukat Ali 1982 SCMR 985.
(4) Mst. Akhtar Jehan Begum v. Muhammad Azam Khan PLD 1983 SC 1.
(5) Muhammad Hassan Khan and others v. Mirza Abdul Hamid 1981 SCM R 799.
(6) Mushtaq Hussain v. Muhammad Shafi 1979 SCMR 496.
' A perusal of the above-quoted judgment would show that the Honourable Supreme Court of Pakistan has repeatedly held that order for deposit of rent cannot be disobeyed on the ground of there being no due determination of rent due or rate of rent and that a person disobeying such an order renders his defence to be struck-off which is followed by his ejectment.
5. The learned counsel for the respondent on the other hand supported the impugned order by asguing that the question of non-compliance of the order dated 26-3-1984 stands finally decided by the judgment of the appellate Court passed on 18-9-1984 and that Trial Court was thereafter, required to determine the question of default alleged in the main ejectment petition. It was further contended by the learned counsel that the Trial Court has rightly held the rate of rent to be Rs, 500 per month for all the three shops and also that no arrears were outstanding against his client. He submitted that the assessm ent of the disputed shops by the Cantt. Board is much less than the one claimed. He also made an attempt to rely on the cases referred to in page 4 of the order but when he was asked to support his submission from the case, he was unable to do so.
6. After giving my anxious consideration to the submissions made by the learned counsel for the parties and after going through the record and the case-law produced at the Bar I have come to the conclusion that the submissions made by the counsel for the appellant have got force. While on the other hand the contention of the learned counsel for the respondent are ill-found and result of misconstruing the relevant provision of the law and so is the impugned order of the Trial Court.
7. Notwithstanding the fact that it has been owned on the record that A rent of 3 disputed shops Rs, 1,500 per month and not Rs, 500 per month, respondent was required to comply with the order approximately determining the rate of rent as Rs, 1,000 per month and not to violate the same. He has deliberately violated the said order as is apparent from his own statement. Since there was no impediment in his way nor it is his case that he was prevented by unavoidable circumstances to comply with the said order, it is, therefore, held that he was a wilful defaulter and thus his defence was liable to be struck off. Furthermore, the Rent Controller was not empowered to review the order of his predecessor determining the B rate of rent approximately as Rs, 1,000 p. m.
8. The Trial Court was required strictly to act in accordance with the remand orders, dated 18-9- 1984 and 24-11-1984 and not to bypass the same. Similarly, Courts are required to act judicially and confine themselves to the material brought on record during the course of evidence C and also the relevant law. Material which is not part of the record and relied upon during the course of evidence should not be taken into consideration to the benefit of either party because reliance on such material renders the order as one based on surmises and conjectures.
9. Accordingly, I accept the appeal, set aside the impugned order, dated 6-1-1986 and while striking-off defence of the respondent pass order for his eviction from disputed Shops Nos. 20, 21 and 32 situate in Saida Shah building outside Dabgari Gate, Peshawar Cantt. Respondent has agreed to vacate the suit shops and hand over the peaceful possession to the appellate and requested for a grace period of 3 months for the said purpose. He is allowed the said period of 3 months from today with the direction that he should regularly deposit/pay the rent of the suit propert till then. Parties are left to bear their own costs.