1. ' WALI MUHAMMAD KHAN, J.---Muhammad Siddique Haidar Qureshi, appellant herein, through leave of the Court, 'has called in question the judgment dated 4-4-1990 passed by the Peshawar High Court, whereby the writ petition bearing No,288/89 filed by Aziz Mazhar Khan, respondent No,3, was accepted and the order of the learned District Judge, Peshawar dated 12-4-1989 ejecting the defendant/respondent from the suit premises, was set aside. The leave granting order is as follows:-- "Leave to appeal is granted to examine the following questions of law:--
(i) What is the full/exact connotation of first date of hearing in proviso of section 13(2) of West Pakistan Urban Rent Restriction Ordinance, 1959 as introduced by N.-W.F.P. Amendment Ordinance, 1972?
(ii) Whether there was abundant documentary record available to satisfy the Controller that the tenant had been committing defaults in the past and making unauthorized deductions in paying the rent due?
(iii) Whether the High Court could in Constitutional jurisdiction interfere with such a finding of the appellate authority having jurisdiction in the matter?"
2. ' The facts of the case, briefly stated, are that the appellant/landlord filed an application for eviction of Aziz Mazhar Khan tenant/respondent from .No,6 situated in Qureshi Manzil No,85, Zaryab Colony, Faqirabad, Peshawar City, on the ground of default in payment of monthly rent from october, 1984. The tenant/respondent in compliance of the summons issued to him put in appearance on 26-1-1985 and was directed to file written statement, which he did on 25-3-1985, however, he remitted the outstanding amount as per the claim of the landlord to him through Money Order on 29-1-1985. He filed written statement on 25-3-1985 in which he acknowledged his liability for the outstanding amount of rent and explained that the landlord had agreed to adjust the rent in the repairs to be carried out by the tenant but since he refused to permit him in writing for the repairs, he did not make any repairs. The tenant deposited the rent due under the routine orders of the Court under section 13(6) on 24-6-1985. Issues were framed in the case and on 23-7- 1985 the tenant/respondent applied to the Court for the dismissal of the petition for eviction under proviso (ii) to section 13(2) of the West Pakistan Urban Rent Restriction Ordinance, 1959 as amended by the N.-W.F.P. Government. It appears that no decision was given on this application and the Rent Controller proceeded with the eviction petition, recorded evidence pro and contra the issues framed and on the appraisal thereof, vide his order. Dated 27-3-1988, dismissed the petition of the landlord/appellant. The learned District Judge, however, vide his order dated 12-4-1989, accepted the appeal filed by the landlord/appellant, set aside the order of the Rent Controller and ordered the eviction of the tenant/respondent within 90 days of the order. Left with no other legal and efficacious remedy, the tenant/respondent invoked the Constitutional jurisdiction of the High Court, which was accepted through the impugned order and by holding the order of the District Judge as without lawful authority, restored that of the Rent Controller. Hence the instant appeal through leave of the Court.
3. ' We have heard Mr. Jehanzeb Rahim, Advocate, for the appellant; Qazi Muhammad Anwar, Senior Advocate, for the respondent; and have perused the record of the case.
4. ' The learned counsel for the appellant emphatically argued that the proviso added by the N.-W.F.P.
5. Government can be availed of only if the tenant on the first date of hearing acknowledges his liability to pay the rent due from him and shows his willingness to pay the same. According to him, the tenant/respondent put in appearance on 26-1-1985 and being aware of the ground mentioned in the petition regarding default in the payment of rent, he was required to admit his liability on the same date and to pay the defaulted amount of rent there and then but instead he requested for time to file written statement. The arguments prima facie look attractive but on deeper consideration of the conduct of the tenant/respondent it is clear that he not only admitted his liability regarding the arrears of rent but exhibited his willingness to pay the amount through remitting the same to the landlord of 29-1-1985 without loss of much time. In the circumstances, on the receipt of written statement in which this plea had definitely been raised, the learned Rent Controller was bound to give a decision as to whether the case of the tenant/respondent was covered under the proviso (ii) to section 13(2) or no and his deferring the issue till the finalisation of the eviction petition could not deprive the tenant/respondent from the benefit of the aforequoted mandatory provision of law. The order of the Rent Controller was therefore, perfectly justified and the appellate Court had legally erred in upsetting the same. The impugned order of the High Court, therefore, does not suffer from any legal infirmity to call for interference by this Court.
6. ' Resultantly, the instant appeal is dismissed.