1. ' MUKHTAR AHMED JUNEJO, J.---Leave to appeal is sought . Against an order dated 12-6-1994 passed by a learned Judge of the Peshawar High Court in FAO No, 67 of 1993.
2. ' The petitioners are legal heirs of late Manzoor Elahi who was said to be co-tenant of respondent No,1 with respondents Nos.2, 3 and 4 in the property in litigation bearing No, 1192(420/3) known as Galaxie Hotel and Chandni Restaurant at Peshawar Cantonment. Respondent No, 1 landlord moved an application in the Court of Controller of Rents, Peshawar Cantonment under section 17 of the Cantonments Rent Restriction Act, 1963 (hereinafter mentioned as the Act) for eviction of his tenants from the property in litigation on the grounds of personal requirement and subletting.
3. Present petitioners were not impleaded as party in the said Rent Application, which was contested by respondents Nos. 2, 3 and 4. Under an order dated 20-9-1993, the Controller of Rents accepted the ejectment application and ordered eviction of the respondents 2 to 21 from the property in litigation. Respondents Nos.2 to 4 challenged the order of the Controller of Rents dated 20-9-1993 in the Peshawar High Court, which maintained the same. Hence this petition.
4. ' The main thrust of Mr. Samiullah Jan, learned counsel for the petitioners was that the petitioners being legal heirs of late Manzoor Elahi who was partner with respondents 2 to 4 in running the hotel in name and style of Galaxie Hotel and Chandni Restaurant in the property in litigation, should .
5. Have been joined as party in the Rent Application, where their application for being impleaded as party was resisted by the respondent No,1 and was dismissed. Learned counsel for the petitioners supported contention of learned counsel for the respondents Nos.2 to 4 that before filing ejectment application under the Act, respondent No,1 landlord had not complied with third proviso below subsection(4) of section 17 of the Act. Mr. K.MA. Samdani, learned counsel for respondent No,1, replying to the point raised by learned counsel for respondents 2 to 4, argued that there were in all three rent agreements between the parties and in the last agreement dated 31-1-1987 covering the period 1-1-1987 to 31-12-1988, it was specifically mentioned that at conclusion of the period of lease the possession of the premises in litigation would be handed over to the landlord and in case of default the landlord would be competent to throw away the tenants and their luggage from the demised premises, without hearing any objection. Such provision in the rent deed dated 31-1-1987, amounted to notice of two years envisaged by third proviso below subsection (4) of section 17 of the Act, as argued by the learned counsel for respondent No,1.
6. The third proviso below subsection (4) of section 17 of the Act, enjoins upon a landlord seeking of ground of personal use eviction of his tenant from the, rented premises used inter alia as a hotel or restaurant to give notice of two years to such tenant (sought to be evicted) before moving an application for his ejectment under section 17 of the Act. Admittedly, no notice in writing was given by respondent No,1 to his tenants two years before the filing of the rent case. It is, however, mentioned in the written agreement between the parties dated 31-1-1987 that they would be bound by the terms of the written rent deed and that there would be no further extension of the lease period and that the landlord will be at liberty to initiate legal proceedings A against his tenants at expiry of the period of tenancy.
7. ' The question whether such terms incorporated in the rent deed would amount to notice envisaged by third proviso below subsection (4) of section 17 of the Act, requires consideration. So also the question whether the petitioners not being party to the Rent Application are bound by the order passed on the same.
8. ' Consequently leave to appeal is granted to determine the said questions. Status quo to continue.
9. Appeal to be heard within 3 months.