' Mst. Hashmat Aziz, landlady/respondent herein (hereinafter to be called as the landlady) submitted application u/s 17 of the Cantonments Rent Restriction Act, 1963 against Sher Ali, tenant/appellant herein (hereinafter to be called as the tenant) for his eviction from the suit house No, 1325/3, situated in Aziz Building, Tipu Sultan Road, Peshawar Cantt. On the grounds of default in the payment of rent for the month of May, 1989 and bona fide personal need. The tenant contested the application and denied the allegations of the landlady in toto. The learned Additional Rent Controller, Peshawar Cantt. Vide his order dated 7-9-1989, in compliance to the provisions of section 17 subsection (8) of the `Act ibid, directed the tenant to deposit R$.2,000, the outstanding amount of rent at the rate of Rs,400. Per month for the months of May, 1989 to September, 1989 before 5th of October, 1989 and also to deposit future rent at the same rate before the 5th of each succeeding month. On 7-10-1989, the date fixed for further proceedings in the case, it came to light that the tenant had failed to comply with the aforesaid order and when the Rent Controller asked him about the reason for the non-compliance with the order, the tenant replied that he had no funds. Consequently the learned Rent Controller struck off the defence of the tenant under subsection (9) of Section 17 of the Cantonments Rent Restriction Act, 1963 and directed him to hand over vacant possession of the property in dispute to the landlady forthwith. Hence the instant appeal against the said order by the tenant Sher Ali.
2. I have heard learned counsel for the parties and have perused the record of the case with their assistance.
3. The learned counsel for the tenant argued with vehemence that the tenant could pay or tender the rent for the month within sixty days of the month for which the rent was due and, therefore, he had still time to pay the rent for the month of May, 1989 upto 31st of July, 1989 and that in this view of the matter he was not a defaulter of rent. I am afraid this reasoning is not available to the tenant in the instant appeal which is directed against the order for noncompliance of the order of the learned Rent Controller requiring the tenant to deposit the tentative rent due from him for the months May, 1989 to September, 1989. The provisions of subsection (9) of section 17 of the Act ibid are mandatory in nature and the learned Rent Controller was bound to give affect to it unless the tenant could satisfy him that the default was not willful but was due to causes beyond his control or unavoidable circumstances. There was no dispute between the parties regarding the rate of rent. The tenant, no doubt, had alleged tender of rent for the month of May, 1989 but it was never asserted by him that in fact the landlady had in fact received the same. Apparently the amount of rent amounting to Rs,2000 for the months of May, 1989 to September,1989 was outstanding against the tenant and there could be no legal justification for the tenant not to deposit the same under the order of the Court before the stipulated time. Additionally he failed to submit any application to the Rent Controller showing substantial cause for the non-deposit of the arrears of rent referred to above, with the result that the learned Rent Controller had to strike off the defence of the tenant and passed the impugned order.
4. Resultantly there is no merit in the instant appeal, the same is hereby dismissed.