' MUHAMMAD BASHIR KHAN JEHANGIRI, J.---The petitioner along with respondents Nos.8 to 11, is the landlord-owner of a Shop No, 2336 situate in Bazar Mochi Lara, Peshawar City, Muhammad Amin, predecessor ininterest of respondents Nos.3 to 7 was inducted in the shop as a tenant in the year, 1955 on payment of Rs,15 per mensem as a rent. The former applied to the Rent Controller on 29-6- 1992 for the ejectment of respondents Nos. 3 to 7, inter alia, on the grounds of default in payment of rent and subletting by Muhammad Amin predecessor-in-interest of respondents Nos.3 to 7 to Muhammad Muallam without their written consent of the petitioner.
2. The petition was resisted by respondents Nos. 3 to 7 wherein both the grounds were controverted.
3. The Rent Controller decided the case in favor of the petitioner holding respondents Nos. 3 to 7 to be defaulters in payment of rent and predecessor in interest of respondents Nos.3 to 7 to be guilty of subletting the shop to respondent No,12 without the written consent of the landlord. But in appeal, a learned Additional District Judge, Peshawar, reversed the findings on both the grounds.
On the first ground he reached the conclusion that the predecessor in interest of respondents Nos.
3 to 7 having admitted his liability to pay the rent due from him was not guilty of default and invoked the proviso added to clause (vi) of subsection (2) of section 13 of the West Pakistan Rent Restriction Ordinance (VI of 1959) (hereinafter called as the Ordinance) by virtue of N.W.F.P.
Ordinance (IX of 1979). On the second ground of subletting the learned Additional District Judge was of the view that the predecessor-in-interest of respondents Nos.3 to 7 having entered into a partnership business with respondent No,12 could not possibly be held to have sublet the shop to the latter. Resultantly, while accepting 'the appeal of the tenants-respondents, he dismissed the application for ejectment. This order was also maintained by the learned Division Bench of the High Court in its Constitutional jurisdiction.
4. The petitioner-landlord now seeks special leave to appeal.
5. Mr. Muhammad Sardar Khan, learned counsel for the petitioner, contended that the Appellate Court and the High Court in exercising the Constitutional jurisdiction have misinterpreted the proviso to subsection (1) of section 13 of the Ordinance. It would be appropriate at this stage to reproduce the proviso added by N.-W.F.P. Ordinance (XII of 1972) which is as under:-- "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 rent 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."
' The learned counsel for the petitioner urged that the Appellate Court and the learned Judges of the High Court have not at all adverted to the words "the tenant on the first date of hearing admits his liability to pay the rent due from him" occurring in the proviso and pointed out that the tenants had appeared firstly on 25-10-1989 and thereafter on 13-11-1989, 25-11-1989, 10-1-1990, 12-2-1990, 26-2-1990, 11-3-1990 and 24-3-1990 but had not admitted their liability and that it was only on 4-11- 1990 that they had made the Admission of their liability which could not possibly be the first date of hearing within the contemplation of the proviso.
' Mr. Muhammad Sardar Khan then submitted that predecessor in interest of respondents Nos.3 to 7 by entering into a partnership business with respondent No,12 was guilty of subletting the shop within the meaning of the newly-added second proviso to section 13 (2)(vi) of the Ordinance. In support of this proposition reliance is placed on: (i) Manek J. Mobed and another v. Shah Behram and others (PLD 1974 SC 351) and (ii) Ghulam Muhammad and 2 others v. Zia Anwar and 3 others (PLD 1978 Lah. 1054).
6. . In the circumstances, leave to appeal is granted to consider: (i) whether the learned High Court has correctly extended that benefit of the second proviso to clause (vi) of subsection (2) of section 13 of the Ordinance to the answering respondents and; (ii) whether the predecessor-in-interest of the answering-respondents by entering into business of partnership on the strength of the Deed Exh.P.W.2/1 dated 27-2-1989 was guilty of subletting of the disputed shop within the meaning of section 13 (2)(ii) (a) of the Ordinance. .