1. ' MUHAMMAD AFZAL ZULLAH, C.J.--- This appeal through leave of the Court is directed against the dismissal by the Peshawar High Court of the appellant's Constitutional (Writ) petition in a Rent Restriction matter. He has been ordered to be evicted from a shop on ground of default in payment of rent.
2. ' The application for eviction was filed on two grounds; namely, personal need and default but the eviction order is based on the default only. The appeal before the District Court having failed and the findings of fact regarding default having been affirmed the appellant's writ petition filed before the High Court also met the same fate. Leave to appeal was granted to examine the following grounds:-- "(1) Whether the petitioner was not entitled to the benefit of the proviso added to West Pakistan Urban Rent Restriction (N.-W.F.P.) Ordinance, 1972 in section 13(2) by Ordinance No,XII of 1972 (by virtue whereof a tenant cannot be ejected if he, in a case of first default in payment of rent, admits his liability and pays the rent); simply because, another plea for ejectment (here personal need) was taken in the application but was not allowed?
(2) What are the conditions for grant of benefit under the said proviso, in particular whether it is essential that the Rent Controller should pass an order of deposit of the rent?
(3) Whether in substance (keeping in view the pleadings and the depositions of both the parties) the petitioner had complied with all the conditions; and lastly?
(4) Whether the High Court should have declined to exercise its discretionary writ jurisdiction in favour of the petitioner?"
3. ' An amendment made in the Urban Rent Restriction Ordinance, 1959 by N.-W.F.P. Ordinance No,XII of 1972 added a proviso after clause (vi) of subsection (2) of section 13 of the parent Ordinance. It reads 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 previous occasion, direct the tenant to deposit all the rents due from him on or before a date to be fixed for the purpose, and upon such deposit being made he shall make an order rejecting the application."
4. ' Taking advantage of this amendment an argument has been advanced in this appeal that the liability to pay the rent for the default period was not denied by the appellant. His only plea was that the respondent/landlord having declined to receive the rent in an ordinary mode, the appellant/tenant was compelled to remit the amount through a money order but the landlord had refused again to receive the amount. Therefore, as argued by the learned counsel, the condition laid in the afore quoted proviso to avoid eviction on the ground of default had been satisfied.
5. ' We do not agree with him. It was a disputed question whether or not the landlord had refused to receive the rent in the first instance, accordingly, the appellant had disputed his liability to be evicted on the ground of default. In case like the present the condition in the Proviso would have been satisfied if the tenant would have, at proper time, accepted, amongst other conditions his liability to pay the rent. There was also liability to be evicted if the rent is not offered and paid as laid down in Proviso. In this case none of the conditions is satisfied. For example the appellant did not accept his liability to pay the rent. As to the facts, when he had filed the written statement, the rent, according to his own admission in para. 5 of his written statement was still due.
6. ' Notwithstanding the aforementioned averment in the written statement about rent he did not offer to pay the rent straightaway without raising any contest as is the intention underlying the Proviso. Accordingly, he cannot get any advantage on account of the newly-added proviso.
7. ' In this behalf it needs to be remarked that it is the duty of the counsel appearing in such cases to advise the client properly so that he may be saved of the unnecessary contest, litigation and loss, monetary and otherwise to both the parties.
8. ' Regarding the second ground on which leave to appeal was granted; suffice it to observe that the first part thereof stands already answered above. Regarding the second part; namely, whether a Rent Controller is required to pass an order of deposit of rent under the afore discussed newly- added proviso, it is the requirement of law that a direction for the deposit shall be made by the Controller on satisfaction that the tenant had not committed any such default previously. This of course would be after the offer made by the tenant. However even if no such specific order is passed by the Rent Controller and in reality there is no such previous default and the tenant on making offer to pay the rent, either pays the same forthwith in presence of the Rent Controller or deposits it immediately, that conduct depending upon the circumstances of each case might also inure for the benefit of the tenant and he may accordingly after such direct payment/deposit also request the Controller to pass the consequential order `rejecting the application' for his eviction.
9. ' The third question posed in the leave grant order already stands answered. Regarding the last one, it might have been a case of exercise of discretion by the Rent Controller if the circumstances otherwise justify such an exercise in favour of the appellant/tenant. And if the answer to this subsidiary question regarding the merits of exercise of discretion by the Rent Controller would have gone in favour of the appellant we might have further examined: whether, he could not be given any advantage in that behalf in the writ jurisdiction of the High Court. But after hearing the learned counsel regarding the actual default and the conduct of the appellant we are satisfied that the Rent Controller and the appellate forum were right in not exercising discretion in favour of the appellant.
10. ' In the light of the foregoing discussion there is no force in this appeal and the same is dismissed with no order as to costs.
11. ' On the request of the learned counsel for the appellant with the undertaking that if 2 month's time is allowed to vacate the premises, the appellant will hand over vacant possession on or before the expiry of 2 months period to the respondent/landlord; without waiting for any notice or execution proceedings and further that it would be subject to payment of rent. He has also undertaken that in case this undertaking is flouted, the Rent Controller shall issue writ of possession without further notice to the appellant. The respondent/landlord has agreed to this arrangement. Order accordingly.