1. ' SAIDUZZAMAN SIDDIQUI, J.--- This judgment will govern the disposal of Civil Appeal No,930 of 1994 and the connected Civil Appeal No,931 of 1994.
2. ' Respondent No,1 (Muhammad Sharif Khan Shinwari) instituted ejectment case in the Court of Rent Controller, Peshawar Cantt., under section 17 of the Cantonments Rent Restriction Act, 1963 (hereinafter to be called as "the Act" only) seeking eviction of appellants and respondents Nos.2 to 18 in Civil Appeal No,930 of 1994 from the building known as Glaxie Hotel and Chandni Restaurant (hereinafter to be referred as "the hotel" only) bearing Property No,1192 (420/3) situated in Shoba Bazar, Peshawar Cantt., on the ground of personal requirement and subletting. The Rent Controller granted ejectment on both the grounds and on appeal, a learned Judge in Chambers of the Peshawar High Court, concurred with the findings of Rent Controller and upheld the eviction order.
3. Leave was granted against judgment of Peshawar High Court to consider whether a stipulation in the rent agreement between the parties that at the conclusion of 2 years' lease period, the possession of the rented premises would be handed over to landlord and in case of default the landlord would be competent to throw away the tenant and their luggage from the demised premises and secure possession of the same and that there would be no further extension of the lease, amounted to the notice required to be served on the tenant under section 17(4) of the Act, before institution of the ejectment case.
4. ' The admitted position in the case is that the hotel was let out to the appellants, in Civil Appeal No,930 of 1994 and one Manzoor Elahi in the year 1982 under a written agreement on tenancy which expired in 1986. The case of the appellants was that on expiry of the said agreement, the appellants approached respondent No,1 and requested for extension of lease for a period of 2 years to enable them to vacate the hotel. Respondent No,1 agreed to the proposal and accordingly, agreement Exh.P.W.1/1 was executed between the parties extending the period of lease from 1-1-1987 to 31-12- 1988. However, after expiry of the period of lease on 31-12-1988, the appellants failed to vacate the hotel which led to the filing of ejectment case by respondent No,1 before the Rent Controller on 20th of October, 1992. The Rent Controller after recording evidence of the parties granted ejectment of the appellants from the hotel, on the grounds of personal and bbna fide requirement of respondent No,1 as well as unauthorized subletting of the hotel. The appeal filed by the appellants against the order of Rent Controller was dismissed by the High Court on 12-6-1994 giving rise to the present appeal.
5. ' The learned counsel for the appellants, firstly contended that the application filed by respondent No,1 on the ground of personal and bona fide requirement was not maintainable as statutory notice required under the 3rd proviso to subsection (4) of section 17 under the Act was not served on the appellants before institution of the rent case. It is next contended by the learned counsel that in so far the allegation of subletting was concerned the evidence on record did not establish the same. According to the learned counsel for the appellants, the circumstances and evidence in the case established that the subletting of different shops and portions of the hotel was done prior to the induction of appellants as the tenant of the hotel, and the subletting of some portions of the hotel by the appellants after the commencement of lease was within the knowledge of respondent No,1 but he never objected to it. It is also contended by the learned counsel for the appellants that it is a common practice in respect of tenancy of a hotel that the lessee is deemed to have authority for the lessor to sublet the portions of hotel to other persons, for the purpose of carrying on the hotel business effectively. The learned counsel for respondent No,1, on the other hand, supported judgment of the High Court and raised the objection that in so far subletting of the hotel is concerned the appellants are not entitled to challenge the findings on this issue as no leave was granted by this Court on this score.
6. We would first of all deal with the objection of the learned counsel for respondent No,1 that the appellants are not entitled to raise any objection to the ejectment order in so far it related to their eviction on the ground of subletting as this Court while granting leave to appeal against the judgment of the High Court did not grant permission to raise such an objection. It is true that in the leave granting order there is no mention about grant of leave to appellants to question the validity of the order of ejectment passed on the ground of subletting of the hotel, but this does not mean that this Court is precluded from considering this ground even if it finds that it is in the interest of justice and for a final and proper decision of the case to hear and decide this point as well. No doubt when leave is granted to an appellant in a case on a particular point, the Court generally would not permit him to raise other points. However, where leave has not been specifically refused by the Court on a particular point raised by the appellant and at the hearing of the case it appears to the Court that in order to do complete justice between the parties, any other contention raised by the appellant, but not specifically refused, should also be considered, the Court can always grant permission to appellant to raise such contention in support of the appeal. After going through the leave granting order, we are of the view that although leave was not specifically granted by this Court to consider the contention of the appellants that the ejectment order on the ground of subletting was not valid, but in the circumstances of the case, it will not be just and fair to deny them the opportunity to contest the validity of the order on the ground as they had raised this ground in their petition for leave to appeal and although leave was granted specifically to consider the effect of section 17(4) of the Act, leave was not refused specifically to consider the other contentions of the appellants raised in their petition for leave to appeal. We, accordingly, overrule the objection of the counsel for respondent Not that the appellants are not entitled to urge the ground in support of their contention that the ejectment order on the ground of subletting of the hotel was not a valid order. The main contention of the learned counsel for the appellants in the appeal before us is that the ejectment application filed by respondent No,1 against the appellants and respondents Nos.2 to 18 in Civil Appeal No,930 of 1994 on the ground of personal and bona fide requirement was incompetent as prior to the institution of the ejectment case, respondent No,1 failed to serve statutory notice required to be served on the tenant in accordance with 3rd proviso to subsection (4) of section 17 of the Act, which reads as follows:-- "(4) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession,--
(a) in the case of a residential building, if--
(i) he requires it in good faith for his own occupation or for the occupation of any member of his family; and
(ii) he or the member of his family, as the case may be, is not occupying any other residential building suitable for his needs at the time, in the Cantonment area concerned or in any local area in the vicinity thereof; and
(iii) he or the said member has not vacated such a building in the said iiiarea or vicinity without sufficient cause after the commencement of this Act; and
(b) in the case of a commercial building, if--
(i) he requires it in good faith for his own use; and
(ii) he is not occupying in the Cantonment area concerned or in any local area in the vicinity thereof in which such building is situate for the purposes of his business any other such building suitable for his needs at the time; and
(iii) he has not vacated such a building in the said area or vicinity without sufficient cause after the commencement of this Act: ' Provided also that this subsection shall not apply to Serais, hotels, Dak-bungalows, lodging- houses, boarding houses, residential dubs, restaurants, eating-houses, cafes, refreshment rooms and places of public recreation or resort or premises dealing in sales or production of materials of books of educational and cultural values 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 of 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 of the landlord."
7. ' The learned counsel for respondent No,1 on the other hand contended that although no written notice was given by respondent No,1 to the appellants before filing the ejectment case but they had served an oral notice on the appellants immediately on the expiry of rent deed. It is alternatively contended by the learned counsel for respondent No,1 that the agreement Exh.P.W.1/1 which was executed between the parties on the expiry of the original lease, clearly provided that on the expiry of two years extended period of lease no further extension in the lease period will be granted and that on the expiry of the said period of 2 years respondent No,1 will be entitled to dispossess the appellants from the hotel. This stipulation in the agreement of tenancy, according to the learned counsel for respondent No,1, amounted to written notice of the intention of respondent No,1 to dispossess the appellants on the ground of personal and bona fide requirement which substantially complied with the requirement of 3rd proviso to subsection (4) of section 17 of the Act. It is also contended by the learned counsel for respondent No,1 that even if it is presumed that notice as required under 3rd proviso to subsection (4) of section 17 of the Act was not served on the appellants before institution of the rent case, the summons issued in the rent case to the appellants may be treated as notice under 3rd proviso to section 17(4) ibid and as period of more than 2 years has passed since the institution of rent case and passing of ejectment order, the technical objection raised by the appellants be overruled.
8. ' The learned counsel for the appellants in support of his contention that the application on the ground of personal and bona fide requirement filed by respondent No,1 against the appellants before the Rent Controller was not maintainable has relied on Syed Hasan Askari Rizvi v.
9. Muhammad Aziz PLD 1989 SC 1, Iqbal Yousuf v. Kishwar Jehan 1991 SCMR 864, Abdullah Bhai v.
10. Ahmad Din PLD 1964 SC 106, Abdur Rashid v. Jamal Din PLD 1967 Pesh. 256, M. Wahaduddin & Sons v.
11. Controller of Rents PLD 1971 Pesh. 236, Barkatullah Khan v. Muhammad Hassan PLD 1986 Kar.
309. In Barkatullah Khan's case, supra, decided by a Full Bench of High Court of Sindh, Karachi provisions of section 14 of Sindh Rented Premises Ordinance, 1979 came up for consideration before that Court and it was held in the majority opinion that if an application for eviction was brought under section 14 of the Sindh Rented Premises Ordinance, 1979 before the expiry of 2 months' period of statutory notice which was required to be served on the tenant before the institution of ejectment case, the only effect on such proceedings will be that the ejectment cannot be granted unless 2 months' period has expired. The proceedings according to majority judgment in Barkatullah Khan's case, supra, could not be invalidated on the ground that before expiry of 2 months' period, ejectment case was instituted. In Abdur Rashid's case, supra, the provisions of section 30(3)(i) of the Displaced Persons (Compensation and Rehabilitation) Act were under consideration. A learned Judge in Chambers of Peshawar High Court came to the conclusion that an application instituted before expiry of 3 months' period of notice required to be served under section 30(3)(i) ibid, was an invalid application in the eyes of law. In M. Wahaduddin & Son's case, supra, a Division Bench of Peshawar High Court considered the provisions of section 30(1)(b) of the Displaced Persons (Compensation and Rehabilitation) Act in the context of the application filed under section 17 of the Act on the ground of personal and bona fide requirement and came to the conclusion that the ejectment application filed within the protected period of six years could not be dismissed merely on the technicality that the application was filed before the expiry of the period of 6 years. It was held in that case that developments taking place in the case meanwhile which entitled the petitioner to the grant of relief could be taken into consideration by the Court for grant of relief to him notwithstanding the fact that the application was brought before the expiry of the period of six years. In Syed Hasan Askari Rizvi's case, supra, this. Court considered the provisions of section 14(1) of the Sindh Rented Premises Ordinance, 1979 and made the following observations:- "We have heard learned counsel for both the parties. The appellant was in the Railway Police as Head Constable. He was due to retire and to attain the age of sixty years on 3rd December, 1985. He served notice on the respondent under section 14(1) of the Ordinance on 30th May, 1985 which was stated to have been received by the respondent on 1st June, 1985. Thus, it is evident from these dates that it was sent four days before the date when it should have in fact been sent.
12. Consequently if section 14(1) of the Ordinance is to be strictly interpreted because this is a special provision introduced in the Sindh Rented Premises Ordinance by way of an amendment to benefit the categories of landlords mentioned therein, then the notice in the instant case sent by the appellant to the respondent under the aforesaid section was premature as the same was given four days more than six months before the date on which the appellant was due to retire or attain the age of sixty years. Thus, strictly speaking it was not in strict compliance with the provisions of section 14(1) of the Ordinance and as such was correctly held to be invalid. The record also indicates that although it was not stated by the respondent in his reply to the notice that it was not specifically in accordance with the provisions of section 14(1) of the Ordinance and was therefore, invalid, objection to that effect in a general manner had been raised on behalf of the respondent in his written statement, and it was on the basis of the said objection that an issue was framed to determine as to whether the case of the appellant was governed by section 14 of the Ordinance.
13. Therefore, learned counsel for the appellant is not correct to state that no objection to that effect was raised by the respondent and no issue to that effect had been framed. Since this is the position 1983 SCMR 191 would not be of any help to the appellant in the circumstances of the present case. The only point which requires determination in the instant case is as to whether section 14(1) of the Ordinance is to be interpreted strictly or liberally. In our view since the provisions thereunder are special for the benefit of some landlords who fall in certain categories given in section 14(1) of the Ordinance, it should be strictly interpreted because the general provisions under which an application can be made for ejectment of a tenant before a Rent Controller are given in section 15 of the Ordinance. We note that while the ejectment suit was pending before the Rent Controller (decided on 18th March, 1986) the appellant had not only been retired but also attained the age of sixty years. Be that as it may, since in our view the notice in the instant case under section 14(1) of the Ordinance was invalid, the learned Single Judge of the High Court was correct in arriving at the conclusion that the proceedings before the Rent Controller based on the same were not maintainable under the law. The result is that the judgment of the learned Single Judge is maintained and this appeal is dismissed with no order as to costs."
14. ' In Iqbal Yousuf,s case, supra, another Bench of 3 learned Judges of this Court after considering the entire case-law came to the following conclusion:-- "Reverting to the appeal under consideration, we hold that, as stated above, service of notice as contemplated under section 14 of the said Ordinance, is statutory requirement, which is mandatory and is to be fulfilled. After issue of notice, as prescribed, if application for eviction is filed prematurely before expiry of two months, then such defect being procedural in nature, would not vitiate the proceeding if in the meantime cause of action had accrued and matured provided eviction is granted after expiry of two months from date of service of notice. Second question in the leave granting order is, whether filing of case previously under section 15 of the Ordinance would constitute sufficient notice under section 14(1) of the Ordinance. Our reply to this question is negative for the reason that issue of notice under section 14(1) of the Ordinance is very essential requirement, having full force of mandatory requirement which has deep roots in the jurisdiction of Rent Controller in subsection (3) thereof to provide ,summary eviction as is contemplated under section 14. As stated above, in this case admittedly no notice under subsection (1) of section 14 was issued at all. Previous proceedings filed by the landlord, of which tenant was aware, were filed under section 15 and not under section 14. Remedy under section 14 is special remedy, which is available to particular classes of landlords, who are to be entitled to such remedy in special circumstances. Not only that but the landlord is to issue notice after he is qualified to avail that remedy and that notice must specify time of not less than two months. Perusal of subsection (3) of section 14 further shows that Rent Controller would be able to exercise jurisdiction only when tenant has failed to deliver possession as provided in subsection (1). Jurisdiction of Controller under subsection (3) is dependent upon compliance of statutory requirements mentioned in subsection
(1) of section 14. In these circumstances and for the reasons stated above, we are of the view that failure of landlord to issue notice under subsection (1) of section 14 of the said Ordinance has caused jurisdictional defect in the proceedings which cannot be cured by saying that tenant was aware of previous proceedings under section 15. In this case reliance put by learned Judge in the High Court on the case of Mir Mustafa Ali Khan v. Mst. Safia Maqsood, reported in 1983 CLC 349, was not apt for two reasons. Firstly, that in the reported case notice was issued under section 14(1) but service of notice was disputed while in the case under consideration, no notice was issued at all.
15. Secondly, we do not agree and approve dictum in the judgment of the High Court in the case of Mir Mustafa Ali Khan, mentioned above, that landlord cannot be non-suited on technical ground as he can bring another application after service of notice, for which there can be no defence for the reason that allowing this would tantamount to rendering statutory requirements of subsection (1) of section 14 to almost redundancy. We are of the view that notice must be issued as contemplated under subsection (1) of section 14 and statutory requirements which are mandatory in nature must be fulfilled, after that if action is filed prematurely, then that defect being procedural in nature would stand cured if action had matured in the meantime during the pendency of the proceedings provided order of eviction is passed after expiry of two months' notice time."
16. In the light of above-stated legal position when we examine the provisions of 3rd proviso to subsection (4) of section 17 of the Act, there is no escape from the conclusion that the service of notice under 3rd proviso to section 17(4) of the Act is mandatory for seeking eviction of a tenant who is occupying the premises where business of Serais, hotels, Dak-bungalows, lodging-houses, boarding-houses, residential clubs, restaurants, eating-houses, cafes, refreshment rooms and places of public recreation or resort or premises dealing in sales or production of material of books of educational cultural values is being carried on. It is well-settled law that where grant of relief is dependent on performance of some statutory conditions, those conditions must be fulfilled and complied with before relief could be granted. The language of the 3rd proviso of section 17(4) of the Act makes it obligatory on the landlord seeking eviction of a tenant from the premises of the kind mentioned in this proviso, to serve the statutory notice before institution of the ejectment case. The service of notice as required by the 3rd proviso to section 17(4) ibid, therefore, is a sine qua non for institution of an ejectment case by the landlord. We are, therefore, of the view that an ejectment application filed before the Controller without complying with the requirement of 3rd proviso to section 17(4) ibid would be incompetent. However, where such notice has been served and the application has been filed before expiry of the statutory period of 2 years mentioned in the 3rd proviso to section 17(4) ibid, the ejectment cannot be granted unless 2 years' period from the date of service of notice has expired.
17. ' The contention of the learned counsel for respondent No,1, however, is that the agreement executed between the parties on 31-1-1987 was a notice as required under the 3rd proviso to section 17(4) of the Act. We have carefully gone through the agreement Exh.PW.1/1 and find that it was for all intent and purposes a fresh agreement between the parties which provided for a period of lease to commence from 1-1-1987 and to expire on 31-12-1988. The learned counsel for the appellants very vehemently contended that the provision in the agreement Exh.PW.1/1, that on expiry of the period of 2 years mentioned in the agreement, no further extension will be allowed in the lease period and that on the expiry of 2 years, the landlord will be entitled to dispossess the tenant by force, made the intention of the parties clear that this is to be treated as a notice in terms of 3rd proviso to section 17(4) of the Act. When we enquired from the learned counsel for the appellants whether a similar condition was incorporated in the earlier agreement between the parties executed in the year 1982, the learned counsel replied in the affirmative. Apart from the fact that the provision of this kind in a lease agreement could not absolve the landlord from serving the statutory notice referred under 3rd proviso to section 17(4) of the Act, before instituting the ejectment case, we are unable to agree with the contention of respondent No,1, that the agreement dated 31-1-1987 entered into between the parties amounted to a notice contemplated under the 3rd proviso to section 17(4) of the Act. The notice contemplated under the 3rd proviso to section 17
(4) of the Act is independent of the provision of a lease agreement which principally lays down the terms and conditions on which the premises is held by the tenant. The notice contemplated under the 3rd proviso to section 17(4) of the Act governs the right of the landlord to seek eviction of a tenant from the premises on the ground of personal and bona fide requirement. It is lastly contended by the learned counsel for respondent No,1 that respondent No,1 after expiry of lease period had served an oral notice on the appellants to vacate the hotel and therefore, the requirement of the 3rd proviso to section 17(4) of the Act shall be deemed to have been complied with substantially. The service of any oral notice by respondent No,1 before the filing of ejectment case was denied by the appellants. Even otherwise the use of expression in the 3rd proviso to section 17(4) ibid, "after having served 2 years' notice on the tenant" in our view does not mean an oral notice. The above expression used in the 3rd proviso to section 17(4) of the Act in our view contemplates service of a formal notice on the tenant before institution of a rent case on the ground of personal and bona fide requirement while seeking ejectment of the tenant who is carrying on business of the nature mentioned in this proviso. We, therefore, hold that in so far the application of respondent No,1 seeking ejectment of the appellants on the ground of personal and bona fide requirement before the Rent Controller was concerned, it was not maintainable as no notice as required under 3rd proviso to section 17(4) of the Act was served prior to the institution of the case.
18. ' The second contention of the learned counsel for the appellants is that the allegation of subletting was not established in the case and in the alternative it is contended that even if the subletting was established it was done with the consent and knowledge of the landlord who had condoned the act of subletting and therefore, ejectment application could not be granted on the ground of subletting, against the appellants.
19. ' It is not disputed that the tenancy in the case is under a written agreement which prohibits subletting of the whole or any part of the hotel let out to the appellants. The learned counsel for the appellants, however,contended that although in the agreement there is prohibition on the right of the appellants to let out or sublet the hotel but as a matter of practice even at the time when the hotel was leased out to the appellants certain premises was let out by the previous tenant and they continued to be the tenants under the appellants. Be that as it may, both the Courts below have held that the appellants were guilty of subletting parts of the hotel after the same was leased out in their favour. The appellants on their own evidence contended that they had let out the portions of hotel with the consent of respondent No,1 but failed to produce any such consent on the part of respondent No,l. The act of subletting having been admitted and there being specific prohibition in the agreement against subletting, it was for the appellants to have proved written consent of the landlord as required under the law. The finding of the two Courts below on the issue of subletting does not suffer from any infirmity and we, accordingly, uphold the order of eviction passed on the ground of subletting of the hotel.
20. ' Although the appeal has partly succeeded as the ejectment order passed against the appellants on the ground of personal and bona fide requirement of respondent No,1 was not valid, the order of ejectment is upheld on the ground of subletting of the hotel. The appeal, accordingly, fails and is dismissed. However, as the appellants have partly succeeded, we will make no order as to costs.
21. Since the appellants are occupying hotel premises, we are inclined to grant them time to vacate the premises, 31-12-1995, failing which they will be evicted from the premises without any notice and if necessary with police aid. The learned counsel for the appellants in the connected Appeal No,931 of 1994 states that he does not press this appeal in view of the judgment in Civil Appeal No,930 of 1994, which also stands disposed of in terms of above judgment, with no order as to costs.