FAZAL ILAHI KHAN, J.--Through this writ petition, Habibullah the writ petitioner has challenged the judgment and order of Additional District Judge, Peshawar (respondent No.5) dated 9-10-1985, whereby his appeal was dismissed and the judgment and order of Rent Controller, Peshawar dated 25-5--1985 dismissing his application for ejectment of respondents 1 and 2 was upheld.
2. Brief facts of the case, giving rise to this writ petition, are that Habibullah, the .Landlord, made an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 against respondents 1 and 2 for their ejectment from Shop No.660 situated in Bazar Resham Garan, Peshawar City on the grounds that respondent No-1. Who was the tenant in the suit shop under the petitioner failed to pay the monthly rent of Rs.60 since August, 1980 till the filing of the application and that respondent No.l sublet the shop in favour of respondent No.2 without the consent of the petitioner-landlord. Damage tothe shop impairing its value and utility was also made a ground for ejectment. Respondents 1 and 2 in their joint written statement resisted the application on several legal and factual pleas. The v admitted the existence of relationship of landlord and tenant between the parties but denied having made default in payment of rent. The rent upto October, 1980 was stated to have been paid after obtaining proper receipt from the landlord while no receipt was issued to them of the rent paid from November, 1980 upto August, 1981-in spite of the landlord having promised to issue the same. They further showed their willingness to pay the rent provided the landlord made statement on oath that he has not been paid the rent. In denying the subletting it was stated that respondent No.2 was working in the shop on behalf of respondent No.l and that he had not sublet it to him. They denied having damaged the suit shop or having impaired its value and utility.
3. 'The following issues were framed arising out of the pleadings of the parties:-- (1)Whether the petitioner has got a cause of action?
(2) Whether the petition is incompetent and liable to dismissal?
(3) Whether the petition, is bad for non-joinder of the necessary parties?
(4) Whether any notice to the respondents in respect of transfer of suit property was served?
(5) Whether the petitioner is estopped to sue due to*his conduct?
(6) Whether the petitioner is the landlord and respondent is a tenant?
(7) Whether the respondents are defaulters?
(8) Whether the respondent No.2 is sub-tenant?
(9) Whether the petitioner is entitled to the decree as prayed for?
(10) Relief.
Habibullah petitioner appeared as his own witness and closed his evidence. From the other side Habibur Rehman, special attorney of respondents 1 and 2 appeared in the witness-box. They also produced Muhammad Azim Inspector Pd'st Office, to prove that the rent due was sent through money order on 25-11-1982. The learned Rent Controller while giving his finding on the issues did not accept the petitioner/landlord's allegation of subletting and damage to the shop. Though the respondent was held defaulter in payment of rent, as claimed in the petition, but prayer for ejectment was refused basing reliance on the amendment made in section 13 of the Act by Ordinance XII of 1972. Dis--satisfied with the judgment and order of the Rent Controller, the landlord went in appeal in the Court of Additional District Judge, Peshawar and with the appeal he made an application for recording additional evidence in support of his contention that respondent No.l had sublet the property to respondent No.2. Arguments on the application as well as the appeal were heard together and thereafter he dismissed the appeal on 9-10-1985 without considering the application on merits, and affirmed the finding of the learned Rent Controller on all the issues. It was observed that the landlord has been paid rent for June and 1uly, 1980 through receipt Exh.A.W_1 /3 and thereafter he tried to furnish the rent through money order but the same was refused. It was also observed that the landlord failed to serve notice on the respondent for payment of arrears of rent and respondent No.l having offered to pay the arrears of rent in case the landlord takes oath that the rent was outstanding, the case was covered by the protection provided for a defaulter within the meaning of proviso to subsection (2) of section 13 of Ordinance.
4.The judgments and orders are assailed 4on the grounds firstly; that the learned appellate Court did not dispose of his application for additional evidence on merits and in accordance with law, second IV that both the Courts below misread .The evidence, misinterpreted the law and misapplied the proviso to subsection (2) of Section 13 of Ordinance. That the tenant did not admit his liability for payment of the arrears of rent due on the first date of hearing which for seeking benefit of the aforementioned proviso was a must. The tenant having been found defaulter by both the forums, their failure to pass an order of ejectment, to which the petitioner was entitled, makes their orders illegal and without lawful authority.
5. The learned counsel for the respondents on the other hand, raised an objection to the maintainability of the writ petition on the ground that the question of default and subletting, both are pure questions of fact determined by both the forums on appraisal of the parties' evidence are unexceptional in constitutional jurisdiction. In support of his arguments, reliance was placed on Mahmood Ahmad Kahloon v: Fateh Muhammad and another PLD 1981 Lahore page 459 and Muhammad Qasim v. Additional District Judge, Lahore and 3 others PLD 1982 Lahore page 14. It was further argued that failure of the learned Additional District Judge to dispose of the petitioner's application for additional evidence is not a ground for interference in writ jurisdiction when the entire matter otherwise has been disposed of on merits. Reliance is placed on Messrs Baithak-e- Kataban and others v. Muhammad Yaqub and others reported in 1986 M LD 2036.
6. After hearing the learned counsel for the parties and perusal of the record, admittedly the tenant was found defaulter in payment of rent but the petitioner was non-suited after extending the benefit of the proviso to sub- section (2) of section 13, referred to above to the tenant. In order to appreciate their contentions we would like to reproduce the relevant provision which is as follows:- "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 provisions occasion, direct the tenant to deposit all the rents due from him on or before a date to be fixed for the purpose, arid upon such deposit being, made he shall make an order rejecting the application."
7. From the plain reading of the above provision, it is clear that for claiming protection under it, the tenant has to admit his liability to pay the rent due on the first hearing of the case. If an admission is conditional, as is in the present case, then it will not fulfill the legal requirements. Any other interpretation of the proviso would be against the spirit of the law as in such a case the application cannot be disposed of on such admission and the opposite party will have to be asked to lead evidence in support of the claim for arrears of rent. As earlier pointed out, the respondents did not admit their liability to pay A the arrears of rent on the first hearing of the case, rather in their statements it has been clearly mentioned that they have paid the entire rent up to October, 1980 and have been issued receipts by the landlord. They also claimed to have paid the rent from November, 1980 to August, 1981 but alleged that for this period they were not issued any receipt.
After making these assertions they admitted their liability subject to the landlord's making statement on oath in support of the arrears of rent claimed, There is, therefore, great force in the contention of the learned counsel that both the forums failed to consider this aspect of the case. It may also be observed that an application for additional evidence if entertained by an Authority/Tribunal of exclusive jurisdiction and the parties are allowed to address argument on it, justice and equity demand that such application shall be disposed of one way or the other unless it is shown that the same was either not pressed or was abandoned at the time of hearing of the main case, irrespective of the fact whether its failure by itself can be made a ground for invoking constitutional jurisdiction or not. In this view of the matter; we hold that the impugned orders after based on misreading of evidence .En the record and in disregard of the question of law involved m the case which rendered both the orders without lawful authority. We, would, therefore, accept this writ petition, set aside the judgments and orders of both the Courts below and remand the case to the learned Rent Controller who is to record fresh evidence, if produced, and thereafter to dispose of the case on merits and in accordance with law.