1. ' MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought by a tenant of a commercial property in a Cantonment Area situate in the Province of N.-W.F.P. Against the dismissal by the High Court, of petitioners' first appeal from an order of ejectment passed by a learned Cantonment Rent Controller; on grounds of default in payment of rent, personal requirement and failure to comply with the order passed under subsection (8) of section 17 of the Cantonments Rent Restriction Act, for deposit of the rent, during the pendency of the case. The petitioners' first appeal having thus been dismissed, leave to appeal has now been sought.
2. ' Learned counsel stated and contended that the High Court not having given any finding with regard to ordinary default in the payment of rent for the months of August and September, 1981, also wrongly decided the question of failure to comply with the order of deposit of rent under section 17(8). He also contended that the issue of personal requirement has not been correctly decided by the High Court; because, the property in dispute was on rent with the petitioners for running a restaurant. That being so third proviso to subsection (4) of section 17 would bar an application for eviction on the ground of personal requirement; unless the personal requirement is also for the same purpose, namely, running a restaurant and further that the application is made after serving the tenant with two years notice in that behalf.
3. ' There is some factual dispute and controversy with regard to exact meaning or import of the order of the learned Rent Controller which was passed under section 17(8). It can lead to two interpretations. One, that in reality it did not contain a direction for deposit of rent, and second, that it contained a direction for deposit of rent as also a choice to the tenant not to make the deposit; but, to make payment of the rent to the landlords through their attorney. However, it is not necessary to examine this aspect any further; because, after hearing the learned counsel at considerable length on the question of personal requirement of the landlords we are of the view that the petitioners are liable to be evicted on that ground. The proviso relied upon by the learned counsel reads as follows:-- "Provided also that this subsection shall not apply to serais, hotels, dakbungalows, lodging-houses, boarding-houses, residential clubs, restaurants, eating-houses, cafes, refreshment rooms and places of public recreation or resort or premises dealing in sales or production of materials of books of educational and cultural value except where the landlord requires any such building to carry on any such business of his own, in which case he may make an application under this subsection after having served two years' notice on the tenant; but no building which is not, on the commencement of this Act, being used for any of the aforesaid purposes, or has not after such commencement been let out expressly for any such purpose shall be converted to any such purpose except with the consent in writing of the landlord."
4. ' In this case, prima facie, it is correct that the petitioners are running the business of a restaurant and normally the case might have fallen within the ambit of the proviso relied upon; but, on further scrutiny and after going through the relevant evidence it has been found that the premises in dispute which consisted of three shops, were not initially given to the petitioners on rent for purpose of running a restaurant. This factual aspect is admitted by the learned counsel for the petitioners; but, he has vehemently argued that the petitioners' case shall fall under the expression "except with the consent in writing of the landlord" used in the end of the proviso. According to him the various documents prepared and submitted for converting the three shops into another type of building by the petitioners with a view to run the business of restaurant in that building (some of which documents were seen and/or signed by the landlords together with their conduct) would constitute their "consent in writing".
5. We do not agree with the learned counsel. The requirement of consent in writing in the proviso in question is a very stringent condition. The use of the words "in writing" following the word "consent" signifies the intention of the lawmakers that the consent expressed in any other manner howsoever strong and reliable it may be, the same shall not be taken into account unless it is in writing.
6. ' The use of the said language and its placing in the proviso is such that no other interpretation would be possible. Admittedly, there is no such writing from the side of the landlords before the conversion of the premises to a restaurant which could signify that they consciously agreed and consented to such a conversion. That being so, the argument of the learned counsel fails.
7. ' In the light of the foregoing discussion this petition is dismissed and leave to appeal is refused.
8. ' On the concession of the learned counsel for the respondents that the petitioners may vacate the premises within four months on proper undertaking by them, the learned counsel for the petitioners has undertaken that they shall hand over the vacant possession of the premises in dispute to the landlords through respondent No,1, who is the mother of the remaining respondents--this arrangement has been accepted by the learned counsel for the respondents. If for any reason beyond control of parties this arrangement fails, the vacant possession shall be handed over by the petitioners to the respondents or their duly constituted representatives within four months. It is further directed that the vacant possession shall be handed over by the petitioners without any further notice or execution proceedings. They shall also continue to pay the agreed rent for the remaining period.