' Sher Hassan, petitioner/respondent herein (hereinafter to be referred as the landlord) filed an application for eviction of Hayat Khan, respondent/appellant herein (hereinafter to be referred as the tenant) from the suit Shop No,1319 Kali Bari, Tipu Sultan Road, Peshawar Cantonment under section 17 of the Cantonments Rent Restriction Act, 1963 on the ground of default in payment of rent since November, 1984 till the institution of the instant application at the rate of Rs, 350 per month and also for bona fide personal need. The tenant contested the application and in his written reply admitted the tenancy on behalf of the landlord and the other co-heirs of Mir Muhammad jointly but at the rate of Rs,160 per month instead of Rs,350 per month as alleged in the application for eviction. He denied to have defaulted in the payment of rent but made a counter-claim of Rs,1,306 against the landlord. The bona fide personal) need of the landlord was termed as mala fide with intent to dispossess the tenant from the suit shop. Necessary issues in the case were framed, evidence led pr and contra recorded and the learned Rent Controller vide his order date 20-6-1990 accepted the application and ordered the eviction of the tenant fro the suit shop allowing him 90 days for surrendering peaceful possession to the landlord else he was to be evicted through the process of law. Hence the instant first appehl.
2. I have heard learned counsel for the parties and have perused the record of the case with their assistance.
3. The tenant did not specifically mention in his written reply the manner in which he had paid the monthly rent viz. Either in lump sum or month-wise and whether directly to the landlord or through some body else. He also did not disclose in his written reply that the landlord owed him Rs,2,066 for the sanitary work done by him in the house of the landlord nor produced the bills alongwith the wrriten reply. However, he developed his case in his evidence by producing the bills Ex.RW/1 to Ex.RW1/4 dated 5-11-1986 and photostat copies marked `A.B.C.D' dated 1-8-1984 and produced Abdullah Jan (RW2) and Ibrahim (RW3) to state that they respectively paid Rs,1,000 and Rs,2,000 only to the landlord which had been paid to them by the tenant for payment to the landlord. The said documents and the evidence of the witnesses were properly appraised by the learned Rent Controller and were rightly held to be of no help to the tenant. Both the witnesses stated in unequivocal words that the payments were made by them 5/6 years ago and obviously even if the version is accepted even then the said payment can only relate to the rent for a period prior to 1984 and not for the period for which the default is alleged. The photostat copies of the bills marked `A B C D.' bear the date 1-8-1984 which prima facie pertained to the work done prior to the said date and the bills Ex.RW1/1 to Ex.RW1/4 as held by the Rent Controller are the true replica of the photostat bills so far as the material mentioned in the two bills are concerned and since neither of them bear the signature or thumb impression of the landlord nor are supported by any other direct disinterested or circumstantial evidence, were rightly ignored by the learned Rent Controller from consideration. The tenant did not produce any evidence in the case to prove payment of rent for the disputed period. His assertion that he was not supplied any receipt for monthly payment of rent is negated by his own conduct whereby he produced a receipt for the month of A June, 1981 to the Rent Controller on 29-7-1989 showing the amount of rent as Rs,160 per month while he was considering the question of deposit of tentative rent. In the absence of any proof regarding the payment of rent for the disputed period the learned Rent Controller was perfectly justified in holding him as defaulter in the payment of rent and the said finding is accordingly maintained.
4. As regard the bona fide personal need, suffice it to say that the landlord has stated on oath that he needs the suit shop for bona fide personal need. The tenant, on the other hand, produced evidence to show that the landlord is running certain business in partnership with others. Be that as it may, even if this plea of the tenant is accepted, though the learned Rent Controller has properly disbelieved the said evidence, even then business in partnership with others in the premises, not owned by the landlord, will not legally debar him from starting his own business in his own property. Sufficient safeguards are available in the Statute for protecting the rights of the tenant and if the landlord fails to occupy the suit shop personally, on vacation by the tenant or re-lets it to someone else, the tenant can avail of the remedy provided under subsection (6) of section 17 of the Cantonments Rent Restriction Act, 1963 and apply for restoration of possession to him.
5.The learned counsel for the tenant raised a technical objection regarding the maintainability of the application and submitted that the landlord being not the sole owner/landlord, could not eject the tenant without impleading the other co-owners/landlords or proof of their consent. I am afraid this objection of the learned counsel is without any substance.v Neither Rent Controller is a Court stricto sensu nor the Civil Procedure Code applies to the proceedings before the Rent Controller.
The landlord, as defined in Section 2 (g) of the Cantonments Rent Restriction Act, 1963, means any person for the time being entitled to receive rent in respect of any building whether on his own account or on behalf or for the benefit of any other person, or as a trustee, guardian or receiver and includes a tenant who, being authorised under the terms of his lease so to do, sublets the building and every other person for the time being deriving title from the landlord. It is the case of the tenant himself that he has paid rent to respondent No,1 as landlord as per receipt produced by him and referred to above. His other evidence is also directed towards the payment of rent to the respondent No,1 as landlord through Abdullah Jan (RW2) and Ibrahim (RW3). Otherwise too there is no legal bar in the way of one of the landlords to get the premises owned by him alongwith others, vacated on the grounds enumerated under section 17 of the Act ibid unless the other landlords object to the same on any ground legally available to them. In the case in hand the co-landlords have not disputed the right of the respondent No,1 to vacate the premises in suit for his personal use and if the tenant was of the view that, the other co-landlords desire his continuance as tenant in the suit shop he should produce them as his witnesses. Consequently the objection of the learned counsel regarding the maintainability of the application for eviction is not entertainable.
6.Before parting with this order it is pointed out that the learned Gontroller of Rents while deciding the case should have given a positive finding on the rate of rent which was admittedly disputed between the parties because his earlier order dated 29-7-1989 was tentative in nature. The tenant has admitted Rs,160 per month as monthly rent since prior to 1981. The learned Controller of Rents after hearing the arguments of the learned counsel for the parties, ordered him to deposit Rs,200 per month as tentative rent on 29-7-1989, keeping in view the statutory provisions that the landlord can demand enhancement of 25% increase in rent after every three years. This order is not seriously disputed by the tenant-appellant. I accordingly confirm it as a reasonable and equitable rent per month for the premises in question and order that the landlord shall be entitled to the arrears of rent at the same rate and shall be entitled to the payment of the deposited amount and can sue for the balance if the same is found to be less than the amount due to him by the tenant from October, 1984 till his physical eviction from the suit shop.
7. In view of what has been stated above the instant first appeal is dismissed, with no order as to costs. However, keeping in view the dictum of the Supreme Court reported as (1987 SCMR 1174), the tenant-appellant is allowed four months time for shifting his business to any other place during which period he should hand over vacant possession of the suit shop to the landlord (respondent No,1 herein) failing which he shall be evicted through the process of law.