1. Muhammad Saddique and Mrs. Zaib-un-Nisa Anees appellants are aggrieved from the order dated 6-11-1996 passed by Civil Judge-II/Rent Controller whereby they have been directed to hand over vacant possession of the premises building/property known as Grand Little Folks High School situated on Muhammad Khan Road.
2. History of this case tells us that respondent Dr. Edgar Nathenial son of late J.W. Nathenial alongwith 5 others is owner landlord of demised property; whereas appellants are running School known by the name and style of Grand Little Folks High School in the said building. It is stated by appellants' counsel that mother of respondent Mr. Edgar Nathenial was owner of the building. On her demise it has devolved upon them. The landlords submitted a joint Application being No.5 of 1996 seeking ejectment of appellants on the grounds of personal bona fide use and occupation as well as for committing default by them in payment of rent from 14-10-1992 to 11-2-1996 at the rate of Rs.50,000. The application was contested by the appellants. Rent Controller passed order for depositing of future rent at the rate of Rs.25,000. During pendency of said application respondent Dr. Edgar Nathenial filed Second Eviction Application No.39 of 1996 solely on the ground of default in payment of rent with effect from 12-2-1996 to 30-4-1996. The eviction application was registered on 8-7-1996. On the next date notice was served on Muhammad Saddique who appeared on 25-7- 1996, copy of the application was handed over to him. He sought adjournment to file reply.
3. Thereafter, on the next date, i.e, 8-8-1993 Mr. Muhammad Arshad Chaudhary, Advocate filed Wakalatnama on behalf of both the appellants and sought adjournment. On the next date written statement was filed wherein certain objections were raised but ultimately he expressed desire to deposit rent of the premises with effect from the death of Mrs. J.W. Nathenial etc. It would be appropriate to reproduce hereinbelow specific stand of the appellants in this behalf: "However, the replying respondents are ready to deposit rent of the premises with effect from the date of death of Mrs. J.W. Nathenial i.e., 11-2-1996 and they also state that the rent of the premises in dispute as already directed by this Hon'ble Court in the other Eviction Application No.5 of 1996, they would continue to deposit, the due rent within time according to law. According to the recent amendment in section 13 of Ordinance VI of 1959 the present eviction application on the ground of alleged default being first default is, therefore, not legally maintainable and proceed able further and the same is liable to be dismissed."
4. Learned Controller passed order on the next date allowing to appellants to deposit rent with effect from 12th February, March and April, 1996 considering that they have committed first default. Order being relevant for subsequent discussion is also reproduced below: "Whether it is a case of first default and the respondents are entitled to the benefit of second proviso to section 13(2) of the Rent Restriction Ordinance?"
5. Parties were directed to address arguments on 9-10-1996 whether case should proceed or otherwise on the basis of abovementioned issue. Ultimately on hearing the arguments learned Controller disposed of the issue vide impugned order dated 6-11-1996 concluding that appellants are not entitled for the benefit of second proviso to section 13(2) of the Rent Restriction Ordinance, 1959. Consequently their ejectment was directed. As such instant appeal has been filed.
6. Arshad Chaudhary learned Advocate contended as under:- (i)That the Rent Controller had no jurisdiction to review its order dated 19-8-1996; (ii)Appellants admitted their default in payment of rent without offering any explanation, therefore, benefit of second proviso to section 13 Subsection (2) was rightly extended to them on 19-8-1996, thereafter, Controller, had no jurisdiction to recall the order to direct their ejectment; Raja M. Afsar learned counsel for respondent stated:- (i)It is not a case in which the Controller had reviewed ifs previous order dated 19-8-1996 because that order was not an order under section 13 subsection (2), but it was an order under section 13(6) of the Ordinance of 1959, therefore, on. Framing the issue the Controller rightly concluded that appellants are not entitled to claim the benefit of second proviso to section 13 (2) because they had not admitted liability on the first date of hearing rather they submitted written statement raising therein a good number of objections. He relied on PLD 1991 SC 138.
7. I have heard parties' counsel and also perused pleadings as well as impugned order carefully.
8. Undoubtedly appellants after service effected upon Muhammad Saddique on 25-7-1996 and Mst.
9. Zaib-un-Nisa before 8-8-1996 on their appearance either in person or through Advocate did not offer payment of outstanding rent to landlord. Inasmuch as when the written statement was filed by them even then unconditional offer was not made to deposit the rent. In this behalf perusal of written statement indicates that firstly there is preliminary objection that Eviction Application No.5 of 1996 is already pending between the same parties including other brothers and sisters of the respondent in the same Court, therefore, second application is not competent under the law.
10. Similarly in Objection-B it was stated that alleged period of default as mentioned in the present eviction application is also involved in the earlier eviction application which is already pending in the Court, therefore, in respect of one cause of action two legal proceedings are not competent.
11. On merits they gave history of the case commencing from 14-10-1992 when agreement was executed by them with mother of the respondent objecting the legal status of the lady to enter into such agreement with them because as Grand Little Folks High School belongs to a Society under the name of Grand Little Folks Society which consists of 7 members, constituting of its Governing Body and the same is registered under the Societies' Registration Act etc. Similarly other parts of the eviction application were vehemently contested. But ultimately the liability was accepted to pay the rent with effect from death of Mrs. J.W. Nathenial, i.e., 11-2-1996 with undertaking that in terms of the order earlier passed in first eviction application they would continue making payment of the future rent. It appears that the Controller itself was not satisfied that the appellants deserve benefit of second proviso to section 13(2) of Ordinance VI of 1959 that is why instead of disposing of the matter on 19-8-1996 order was passed under section 13(6) directing to appellants for making payment of rent from February 12, March, and April, 1996.
12. At this juncture it may be noted that in the earlier Eviction Application No.5 of 1996 Controller had not passed order for the deposit of the past rent as stated at bar by both the learned counsels that in those proceedings appellants were directed to deposit future rent from May, 1996 to onwards, therefore, for the past rent in respect of the period mentioned in the instant second application the appellants prima facie were defaulters.
13. Had they not committed default there was no occasion for them to make offer for the deposit of the rent when they submitted written statement in this application. Inasmuch as in the earlier eviction proceedings which are still pending according to the statement of Raja M. Afsar they never attempted to hand over the rent of this very period or requested to Court for permission to deposit the same in the Bank.
14. With this background when the Controller itself had not passed order under second proviso to section 13(2) of the Ordinance, 1959 thereby finally determining the proceedings it was decided on merits to ascertain whether they are entitled to the said proviso or not, therefore, I am not in, agreement with learned counsel Mr. Muhammad Arshad Chaudhary that the Controller had its earlier order.
15. Now turning towards the real issue which is the bone of contention between both the parties namely, whether appellants accepted first default without any objection and they were entitled for the benefit of second proviso to section 13(2) of Ordinance, 1959 or otherwise. Since the liability to pay the rent was admitted, therefore, there is no doubt to conclude that default was committed by the appellants.
16. As far as the question of condonation of default is concerned that depends on the admission by the tenant on first day of hearing of the eviction application as it has been discussed by honourable Supreme Court in the case of Hazrat Umar v. Zafar Majeed and 13 others, (PLD 1991 SC 138). Relevant portion therefrom reads as under:- "We do not agree with him. It was a disputed question whether or not the landlord had refused to receive the rent in the first instance, accordingly the appellant had disputed his liability to be evicted on the ground of default. In case like the present the condition in the Proviso would have been satisfied it' the tenant would have, at proper time, accepted, amongst ;As his liability to nay the rent. There was also liability to be evicted if the rent is not offered and paid as laid down in Proviso. In this case none of the conditions is satisfied. For example the appellant did not accept his liability to pay the rent. As to the facts, when he had filed the written statement, the rent according to his own admission in Para. 5 of his written statement was still due.
17. Notwithstanding the aforementioned averment in the-written statement about rent he did not offer to pay the rent straightaway without raising any contest as is the intention underlying the Proviso.
18. Accordingly, he cannot get any advantage on account of the newly --added proviso.
19. Mr. Muhammad Arshad Chaudhary also referred to 'Muhammad Siddique Qureshi v. District Judge Peshawar and others' (PLD 1993 SC 192); wherein, on facts it was held that because tenant without loss of time submitted written statement and straightaway accepted liability regarding arrears of the rent and also expressed willingness to pay the amount, through remitting the same to the landlord, but the learned Controller did not give decision on the eviction application and deferred it till finalisation of the eviction application, therefore, it was held that on account of the delay by the Controller to dispose of the issue regarding first default and offer by tenant to make his payment.
20. Straightaway would not deprive him from the benefit of proviso to section f3(2) of the Rent Restriction Ordinance.
21. He also relied on Habibullah v. Rent Controller Peshawar 1996 SCM R 362. In this judgment Honourbale Supreme Court has granted leave to consider whether High Court correctly extended benefit of Second proviso of section 13(VI) of the Ordinance, to tenants and whether predecessor- in-interest of the tenants by entering business of partnership on the strength of specific deed was guilty of subletting of shop in question within the meaning of section 13(2)(A) of the Ordinance.
22. With utmost respect I may observe that so far this matter has not been finally disposed of by the apex Court, therefore, in the absence of any principle of law enunciated in this judgment learned counsel cannot take its benefit.
23. Raja M. Afsar had submitted an application being Civil Miscellaneous No. 379 of 1997 pointing out that appellants had managed to run school in a different building which they have acquired in front of Kansi Killa, therefore, for these reasons as well morally appellants are not entitled to continue in possession of the demised property.
24. Thus, for the foregoing reasons I see no force in the appeal which is dismissed and order of Controller dated 6-11-1996 directing ejectment of appellants is maintained.
25. Parties shall bear their own costs.