' Amanullah Khan and others respondents herein are landlords of the shops in dispute and Haji Fazal Karim appellant herein is a tenant of the same. The landlords had sought ejectment of the tenant from the shops in dispute on the grounds of non-payment of rent since January, 1986 till the filing of the ejectment application on 31-3-1988, subletting and causing damage to the shops in dispute and personal need of the landlords. The application was contested by the tenant. From the pleadings of the parties the learned Rent Controller, Nowshera Cantonment framed the following issues:--
(1) Whether the petitioner has got a cause of action? (OPP)
(2) Whether the relationship of landlord and tenant between petitioners Nos. 2 to 4 and the respondent exists ? (OPP).
(3) Whether the application is mala fide? (OPD).
(4) Whether the petitioners want to enhance the rent of the property? (OPD).
(5) Whether the respondent has committed wilful default in payment of rent? (OPP).
(6) Whether the petitioners require the suit property for the personal use and occupation by the petitioners Nos.1 to 3 ? (OPP).
(7) Whether the respondent has damaged the property by opening a tandoor and a new door at the back of the shop and thereby damaged the utility and outlook of the property ? (OPP).
(8) Whether the petitioners require the suit property in good faith ? (OPP)
(9) Relief.
' After recording evidence as produced by the parties the learned Rent Controller decided issues Nos. 5 and 6 against the tenant and by order dated 12-2-1990 directed him to vacate the disputed property and hand over its peaceful possession to the landlords within 30 days. The tenant feeling aggrieved has come up to this Court with the appeal in hand.
2. Although the landlords have sought ejectment of the tenant on the ground of default in payment of rent for the period before the institution of the ejectment application, for subletting and causing damage to property and for personal need about which issues Nos. 5, 6, 7 and 8 were framed, however, the learned Rent Controller did not answer issue No,7 in favour of the landlords. Also with regard to issue No,5 the learned Rent Controller did not discuss the allegation of default in payment of rent for the period before the institution of the ejectment application but held that the tenant had deposited the rent for the month of July, 1989 on 24th August, 1989 and had thus committed a default and so he decided the issue in the affirmative. The learned Rent Controller has not decided issue No,5 appropriately. This issue pertains to default in payment of rent allegedly committed by the tenant for the period prior to the institution of the suit. The learned Rent Controller has not discussed the issue in that perspective. On the contrary he has taken up the default in deposit of rent committed by the tenant during the proceedings. He had ordered the tenant on 21-94988 to deposit the monthly rent in the Court before 5th of each month. On 2340- 1989 counsel for the landlords filed an application stating that the tenant had failed to deposit the rent for the month of July, 1989 before 5th of the next month and so prayed that the defence of the respondent be struck off. The tenant had submitted reply on 15-8-1989, wherein he had stated that he was ailing from 2-8-1989 to 14-8-1989 and on account of that reason he could not deposit the rent and that the default was not wilful. However, the learned Rent Controller did not give the tenant an opportunity to explain the default and decided the issue against him.
3. There is one more aspect of this matter i.e, that if the learned Rent Controller wanted to proceed against the tenant for committing default in deposit of the rent as ordered by him, then he should have proceeded in accordance with provisions of subsection (9) of section 17 of the Cantonments Rent Restriction Act, 1963 (hereinafter referred to as the Act) and should have struck off the defence of the tenant and should have directed him to put the landlords in possession of the shops in dispute without any further proceedings. But it transpires that the learned Rent Controller did not make any such order and waited for the case to be ripe and then gave his decision on all the issues including issue No,5. It shall be seen that default in payment of rent and default in deposit of rent on the direction of the Court are two different matters. The first is a default made by the tenant in payment of rent to the landlords, whereas the second is a disobedience of the order of the Rent Controller made for the deposit of monthly rent in the Court before the 5th of the next month. When it is brought to the notice of the Rent Controller that the tenant has not deposited rent in the Court as directed, then the Rent Controller is required to make an inquiry whether the default was wilful or not and if he arrives at the conclusion that no cogent reason has been advanced for non-deposit of rent before the due date, the Rent Controller is required to strike off the defence of the tenant and order that the landlord be put into possession of the building without any further proceedings.
When the application was presented by the landlords complaining that the tenant had not deposited rent in accordance with the direction, then the learned Reht Controller should have stopped further proceedings and should have first decided that application. Instead the learned Rent Controller continued with the proceedings and made decision after recording evidence of the parties but strangely enough he did not give the tenant an opportunity to show that the failure on his part was not wilful as was alleged by him that he had fallen sick. It can also be seen that the learned Rent Controller did not give findings with' regard to the allegation of default in payment of rent as alleged by the landlords. As such, the learned Rent Controller neither gave any appropriate finding on the circumstance of default in deposit of rent nor with regard to the allegation of failure to pay rent.
4. In so far as the personal requirement of the landlords is concerned, although the learned Rent Controller came to the conclusion that they wanted the shops in dispute for their own business in good faith but the shops in dispute are being used as a hotel and the ejectment of the tenant was to be governed by the provisions of the third proviso to subsection (4) of section 17 of the Act. For the sake of better understanding the aforesaid third proviso is reproduced as under:-- "Provided also that this subsection shall not apply to serais, hotels, dak bungalows, lodging-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 values except where 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 not be converted to any such purpose except with the consent in writing of the landlord."
5. It shall thus be seen that if ejectment of a tenant is sought from the property which is being used as a hotel, then firstly, a notice of two years has to be served upon the tenant; and secondly, the landlord is also bound to carry on the same business in the vacated property which was being carried on by the tenant. Although the tenant did not take up the objections of the third proviso in his written statement, yet the law being very clear, the learned Rent Controller was required to take into consideration the provisions of the said proviso when finally disposing of the ejectment application. The requirement of two years' notice may not be very much material as sufficient time was spent in the ejectment proceedings to conclude but the other limitation of the law that the landlords had to carry on the same business of hotel in the shops when they were vacated by the appellant could not be overlooked.
6. For the aforesaid reasons I find that the learned Rent Controller has not properly disposed of the ejectment application. I am left with no alternative but to remand the matter back to him. I will accept the appeal, set aside the impugned order of the learned Rent Controller and remand the case to him with the direction that he shall decide the question of default in deposit of rent for the month of July, 1989 after giving the tenant an opportunity of producing defence.
' But if he comes to the conclusion that there was no wilful default on the part of the tenant in depositing the rent for the month of July, 1989, then he shall decide issue No,5 in accordance with the allegations made in the ejectment application and the evidence produced by the parties with regard thereto. In that event he shall also decide issues Nos.6 and 8 taking into consideration the provisions of the third proviso to subsection (4) of section 17 of the Act. No order as to costs.