' Noor Elahi and two others have filed the instant first appeal under section 24 of the Cantonments Rent Restriction Act, 1963 against the order of the Controller of Rents, Peshawar Cantonment, whereby they were directed to hand over vacant possession of the disputed property to the landlord within one month from the date of announcement of the ejectment order, i,e, 20-9-1993, failing which the said order should be executed in accordance with law.
2. Muhammad Sharif Khan Shinwari, respondent No, 1 herein (land lord petitioner) filed an ejectment petition against Noor Elahi and others, appellants herein (tenant-respondents) for their eviction from property bearing No,1192 (420/3) known as Glaxie Hotel and Chandni Restaurant, Shoba, Bazar, Peshawar Cantonment on the ground that the suit property was required by the landlord for his own personal use in good faith; and that in violation of the agreements as well as the law on the subject, the tenant-respondents 1 to 3 have sub-let the suit property to respondents 4 to 20. The respondents contested the said petition by filling their joint written statement and the learned Controller of Rents on the pleadings of the parties framed as many as eight issues, including the relief. Thereafter, the parties led their evidence pro and contra, and after taking into consideration the said evidence, the trial Court passed the order of ejectment in favour of the landlord and against the tenants, who have filed the instant appeal.
3. Vide C.M. No, 46 of 1994, Muhammad Tariq and three others, the legal heirs of Manzoor Elahi, deceased co-tenant under the landlord, applied for their impleadment as appellants in the instant appeal, on the ground that on the death of their predecessor-in-interest, they became tenants in the disputed property and are necessary party to the proceedings. This application was contested by the respondents herein, so arguments were heard first on it and vide order dated 30-3-1994 the application was allowed subject to all just and valid objections by the other side at the appropriate time. The appellants were accordingly directed to amend the memorandum of appeal by impleading the legal heirs of Manzoor Elahi deceased as appellants. The order was complied with where after arguments were heard in the main appeal.
4. Mr. Samiullah Jan, Advocate, in support of his application filed on behalf of the legal representatives of late Manzoor Elahi, submitted that the landlord has admitted in his petition for ejectment that Manzoor Elahi was one of the tenants. He referred to clause (j) of section 2 of the Cantonments Rent Restriction Act, 1963 (hereinafter called the Act) wherein definition of 'tenant' has been given and according to its sub-clause (ii), includes in the event of death of the tenant, his heirs and successors and after the termination of the tenancy, his heirs and successors who continue to be in possession or occupation of the building. The learned counsel further referred to section 17 of the Act ibid which implies that no tenant shall be ejected from the premises unless he has been given reasonable opportunity of showing cause against the application. Since the legal representatives of Manzoor Elahi. Deceased-tenant were not arrayed as respondents, therefore, according to him, their ejectment would amount to condemning them without affording any opportunity of hearing.
5. Qazi Muhammad Anwar, advocate, appearing on behalf of the appellants, submitted that the very application for ejectment was not maintainable as the required notice of two years provided in third proviso of clause (b), sub section (4) of section 17 of the Act has not been served the tenants, therefore, no application for the eviction of the tenants from hotel etc. Could be made on the ground of personal need of the landlord. Since this mandatory provision was not complied with, therefore, this application being premature had to be dismissed. He also questioned the bona fides of the landlord urging that he has no personal need and requirement of the suit premises. It has been admitted by the landlord, he argued that his father wants eviction of the tenants from the suit premises. As such, the being no bona fide personal need, the appellants could not be asked to vacate the premises. He further urged that the ground of subletting has not been proved by the landlord, therefore, eviction order could not be based on this score too.
6. Opposing the aforesaid contentions, the learned counsel for the landlord Mr. K. M. A. Samdani, Advocate, argued that as for application (C.M. No,46 of 1994) of Muhammad Tariq etc., legal heirs of Manzoor Elahi, is concerned, it is designed to gain time by prolonging the litigation and is based on malice and mischief. He submitted that Manzoor Elahi died in the year 1991 leaving behind a widow, 3 sons. And 2 daughters. Application for ejectment was filed on 20-10-1992 and written statement thereto was filed by the respondents on 9-1-1993 but no, objection therein was taken regarding mis-joinder or non-joinder of necessary parties. On 17-3-1993, the landlord's evidence was concluded and thereafter 9 witnesses of the tenant-respondents were examined, when on 9- 9-1993 an application on behalf of the widow and two daughters of late Manzoor Elahi was filed to the effect that they may be impleaded as respondents, which, after contest, was dismissed on 14- 9-1993, where against no appeal was filed and as such it has attained finality. He contended that even after the passing of the final order of ejectment against the tenants, no appeal was filed by them, therefore, at belated stage they, with the addition of Muhammad Tariq son of Manzoor Elahi, cannot by such a device, be permitted to delay the proceedings. It was argued that none of the legal heir of late Manzoor Elahi was/is in possession or occupation of the building in dispute, therefore, they are not tenants within the meaning of sub-clause (ii) of clause (j) of section 2 of the Act, and have no locus stanch as appellants.
7. Responding to the arguments in the appeal, the learned counsel for the landlord, submitted that the tenants in their written statements have not denied the grounds of subletting and personal need of the landlord and at this belated stage they cannot be allowed to raise fresh. Pleas. He vehemently supported the ejectment order and urged that the same is reasonable and based on good appreciation of the evidence on record. He referred to the statements of the landlord (P.W.1) and his father (P.W.2) who was also general attorney of the landlord. P.W.1 has stated that his father P.W.2 being his general attorney, used to deal with the tenants, which was confirmed by P.W.2 himself in his deposition before the Court. P.W.2 also produced the photo stat copy of the general power of attorney which is placed on the record as P.W.2/1 whereby he has been authorised by his sons and wives to look after, manage and administer the property on their behalf. He submitted that their statements on the material points are consistent and they have substantially established that the property was in good faith required for the landlord. With regard to the notice of two years as required in the third proviso as aforesaid, he submitted that after the expiry of the contractual period of tenancy the landlord extended the period for two years vide agreements Exh.P.W.1/1 wherein it was specifically scribed that the tenants respondents would vacate the premises within the aforesaid period and no further extension would be allowed, so the notice of two years was inbuilt in the agreement and no further notice was required. He submitted that after the expiry of the said periods the tenants had no right to hold on the premises against their commitment. He also urged that in view of the evidence on the record, the subletting has also been proved, therefore, the tenants are liable to eviction on this ground as well.
8. After hearing the learned counsel for the parties and going through the record of the case I find that so far as the application (C.M. No,46 of 1994) of the legal heirs of Manzoor Elahi, is concerned, there is no merit in the same. The ejectment petition was filed on 20-10-1992, written statement on behalf of the respondents was filed on 9-1-1993 whereafter issues were framed and evidence by the parties was led. On 9-9-1993, Mst. Zeenat Begum widow, Mst. Aneela Manzoor and Mst. Nabeela Najeeb, daughters of late Manzoor Elahi, filed an application that they should be impleaded as tenant respondents in the ejectment proceedings, which was resisted by the landlords and was ultimately dismissed by the Controller of Rents on 14-9-1993, where against no appeal was filed.
They, even after the passing of the final ejectment order on 20:9-1993, did not challenge the same in appeal but preferred a fresh application on 28-31994 with the addition of the name of Muhammad Tariq, for impleading them as appellants. It appears that the widow and two daughters of late Manzoor Elahi, who filed the earlier application, were neither aggrieved of the order of rejection of their application nor were they dissatisfied of the final ejectment order, as they never bothered to challenge the same in appeal. As for Muhammad Tariq, son of late Manzoor Elahi is concerned, It has been admitted in the application itself, that he was abroad along with his brothers and it was about a couple of months ago, that he has returned and came to know of the proceedings. It has neither been asserted nor proved that legal heirs of late Manzoor Elahi, have ever remained in possession of the disputed property, or they have ever shared the tenancy with the original appellants, therefore, they were/are not tenants within the meaning of section 2(j)(ii) of the Act and consequently were not necessary parties to the ejectment proceedings and thus have no locus standi as appellants. Moreover, the order of the Controller of Rents dated 14-9-1993 which is based on valid reasons, attained finality and the same cannot be allowed to be re-agitated and re-opened for determination of the determined question, at this late stage.
9. Admittedly, the premises in question was rented out to the tenant- appellants in the year 1982 on the payment of Rs,8,000 in pursuance to rent deed Exh.R.W.9, for a period of three years. On 31-1-1987 another deed' Exh.P.W.1/1 was scribed whereby the tenancy was extended for two years commencing from Ist January, 1987 to 31st December, 1988 on payment of Rs,12,000 p.m. It transpires from the evidence on record that on the expiry of the period of tenancy, some extensions were verbally given for certain reasons to the tenant-appellants but thereafter when they were asked to vacate the property, the same was not acceded to, therefore, the landlord who happens to be a Shinwari by tribe, proceeded to recover the possession of the property according to tribal `Itiwar the provision whereof had been incorporated in Exh.P.W.1/1, which led to the registration of criminal cases and parties entered into multi nature litigation but the perusal of deed Ex.P.W.1/1, would show that the tenant-appellants had agreed to vacate the premises on the expiry of two years period as prescribed therein and had undertaken that they would hand over the possession of the property to the landlord without any resistance. It was reiterated in the conclusion of the deed that no further extension in the period will be given and that they would abide by the terms and conditions of the deed and in case of violation the landlord would have a right to seek legal remedy against them. This repetition of the period of 2 years that they would vacate the premises within the said period amounts to an inbuilt notice as required under third proviso of subsection (4) of section 17 of :he Act. The provision reads as under: "17. Eviction of tenant,- (1)
(2)
(3)
(4) Provided also that this subsection shall not apply to Serais, hotels, dakbungalows, lodging- houses, residential clubs, restaurants, eating-houses, cafes, refreshment rooms and places of public recreation or resort premises dealing in sales or production of materials of books of educational and cultural value except where the 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 to 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 be converted to any such purpose except with the consent in writing o1 the landlord."
The bare reading of the proviso would show that when the landlord requires any such building to carry on his own business therein, in that eventuality he has to serve a notice of two years before instituting the application for ejectment of his tenant, but if ejectment is sought on any other ground, then such a notice is not required. This proviso does not specifically provide the mode and the manner in which the notice has to be served. This implies that the object underlying the third proviso is to make the tenant conscious of the fact that an application for ejectment is being brought against him and that he should in the said period make an alternate arrangement and be prepared for eviction. Since the term 'notice' has not been defined in the Act itself therefore, I would refer to its ordinary and literary meanings. In this regard reference may be made to the definition of the above term given in the following Dictionaries: ' Chambers 20th Century Dictionary, New Edition, 1983, at page 864.
"Notice": means intimation, announcement, information, warning , a writing, placard, board etc., conveying an intimation or warning, time allowed for preparation, cognizance, observation, heed, mention, a short book, dramatic or artistic review, civility or respectful treatment, a notion.
' Black's Law Dictionary, Revised Fourth Edition, page 1210.
"Notice" means information the result of observation, whether by the senses or the mind, knowledge of the existence of a fact or state of affairs, the means of knowledge.
' The Oxford English Dictionary, Volume VII, N-Poy, at page 231: "Notice" means to notify, intimate, to make mention of, remark upon, to refer to, speak of (something observed), to take notice of, to observe, perceive, to treat (a person) with some degree of attention, favour, or politeness, to recognise or acknowledge.
' From the aforesaid dictionary meanings, notice is an intimation and information to apprise a person of some facts. In view of the abovementioned meanings and definitions of 'notice' it has to be seen whether Exh. P.W.1/1 contains such a notice. It would be appropriate to reproduce the relevant provisions there of: {{URDU TEXT}} ' The concluding part of the covenant Ex.P.W.1/1 is very significant as it was reiterated that no further extension in the period of tenancy would be made. P.W.1 has stated that after the expiry of the period of tenancy, the tenants were given a notice to vacate the premises but they on one or the other pretext delayed the same. In cross-examination he stated that since notice for vacation had been given to the tenants, therefore, after 1988 tenancy agreement was not renewed. P.W.2 also stated that on the expiry of tenancy period, the tenants were asked to vacate the property for the personal occupation of his son, but delaying tactics were used. As he was not cross-examined on this aspect, therefore, his statement would be deemed to have been accepted. It is pertinent to point out here that the learned (P.W.1 ) and his attorney (P.W.2) were examined much before filing of the application whereby objection for non-service of notice as required under third proviso to subsection (4) of section 17 of the Act, was taken. In view of the aforesaid fact, it is abundantly clear that the tenants were in full knowledge that after the expiry of the period of Exh.P.W.1/1, no further extension would be given to them, but they somehow or the other, prolonged their occupation on one or the other excuse, which ultimately led them to multinature litigations. The period of tenancy expired on 31-12-1988 whereas the application for ejectment was filed on 21-10-1992, therefore, in view of the clause that the period would not be extended, no further notice was required.
10. In the application for ejectment the landlord has taken the ground that he requires the property in good faith Tor his personal use. The landlord himself and his father who was his general attorney as well, completely endorsed and supported the assertion, and none of them could be countered in cross-examination. The learned counsel for the appellants could not point out any omission or misreading of the evidence in the impugned order. More so, in view of the safeguard provided in section 17 (6) of the Act, the assertion on oath by the landlord that he requires the property in good faith for his personal use shall be sufficient to accept his bona fides if such assertions are consistent and in conformity with the averments of the application. I find the averments of the application in line and in total harmony with the statement of the landlord made on oath duly supported by the statement of his father, his general attorney, therefore, it stands proved that the landlord requires the property in good faith for his personal requirement.
11. As for the ground of subletting is concerned, it has not been denied in the written statement by the tenant-appellants that. It has not been sublet. It has been alleged that the sub tenants are occupying the premises with the permission and consent of the landlord which they miserably failed to establish. The sub tenants have admitted in their depositions that they were rented out the respective shops by the tenant appellants, who receive the rent from them. The Controller of Rents have exhaustively dealt with this issue and rightly held that the landlord has positively proved the ground of subletting, as such, his finding on this issue is unexceptionable.
12. The finding regarding enforceability of the contract is based upon the usual interpretation of the relevant law but after the insertion of Article 2A in the Constitution of the Islamic Republic of Pakistan, the Courts should be mindful of its provisions and resolve the dispute in such a manner so as to advance justice in accordance with the Islamic norms. The tenants-appellants had unequivocally admitted the execution of the tenancy agreement with the landlord, so keeping in view the Injunctions of Islam with regard to performance of "Ehd", the Controller of Rents have rightly decided the case. The tenant appellants cannot wriggle out from their commitments which they have admittedly made vide Exh.P.W.1/1. In a case of Commissioner of Income-tax, Peshawar Zone, Peshawar v. Messrs Siemen A.G. Reported in PLD 1991 Supreme Court of Pakistan 368, their Lordships have ruled that so long as the existing statutes were not brought in conformity with Injunctions of Islam, their interpretation, application and enforcement, wherein discretionary judicial elements were involved, only that course would be adopted which was in accord with the Islamic philosophy, its common law and jurisprudence. The most important relevant Injunctions of the Qur'an are contained amongst other in Chapter Maida, Verse (1) and Chapter Alisra'a, Verse (34).... To the effect that the contracting parties are bound to fulfil their contracts. And they would remain liable for any contraventions.... Obviously both here and hereafter. There are very strong commands and have enforced in various fields". In view of the aforesaid commands of the Holy Qur'an, the tenant-appellants are bound to accomplish and fulfil their "Ehd".
13. The result of the above discussion is that the impugned order of the Controller of Rents does not suffer from any legal infirmity, which is hereby maintained. This appeal, therefore, fails and is hereby dismissed with the direction that the landlord be put in vacant possession of the suit property within a month from today. No order as to costs.