This appeal is directed against the order of the Rent Controller, Nowshera Cantt. dated 16-4-1997 whereby on acceptance of the ejectment petition of the landlord-respondent No,1 herein, directed the tenants-appellants and respondent No,2 to vacate the suit shop within sixty days and hand over the vacant possession to the landlord-respondent No,1.
2. Mian Yahya Shah landlord instituted an ejectment petition against Jaffar Shah, Gul Muhammad, appellants and Muhammad Ibrahim respondent No,2 from suit Shop No,380 situated in Super Market, Aziz Bhatti Road, Nowshera Cantt: on the ground that the tenant-appellant No,1 was a rent defaulter from July, 1994 till December, 1994; and that he has sublet the shop in dispute to appellant No,2 and respondent No,2. The tenant-appellants resisted the petition and the pleadings of the parties gave rise to the following issues:-- (1)Whether respondent No,1 is rent defaulter?
(2)Whether respondent No,1 has sublet the property to respondents Nos.2 and 3, if so, its effect?
(3)Whether the petition is mala fide?
(4)Whether the respondent is liable to ejectment?
(5)Relief.
3. Evidence pro and contra was recorded and after hearing the learned counsel for the parties, the learned Rent Controller, Nowshera Cantt. vide his order, dated 16-4-1997 accepted the ejectment petition and directed the tenants to vacate the shop in question within sixty days and hand over the vacant possession to the landlord. Hence the instant appeal.
4. I have heard the learned counsel for the parties and have perused the record of the case with their assistance.
5. Landlord has sought ejectment of the tenants on two grounds i,e,, default in payment of rent and subletting the suit shop to appellant No,2 and respondent No,2. So far the default in payment of rent is concerned, it is manifest from the record that the tenant did not pay the rent from July, 1994 upto January, 1995. He has admitted in his cross-examination that the last rent was paid on 12-7- 1995 to the landlord upto June, 1994 and thereafter, deposited the rent in the Cantt: Board. The perusal of the receipts would show that the tenant was not paying the rent regularly on monthly basis and he had been tendering the same after intervals of three to 10 months. The rent for July, 1994 to January, 1995 was deposited with the Rent Controller, Nowshera by the tenant on 2-2-1995 vide receipt Exhs.R.W.1/1 to 8 after he had been served in the ejectment application. It is obligatory on the tenant in terms of section 17(2)(i) of the Cantonment Rent Restriction Act, 1963 to tender the due rent regularly to the landlord failing which he renders himself to the consequence of default.
The acceptance of the accumulated or lump sum rent by the landlord does not absolve the tenant of his statutory duty to pay the rent according to law. The tenant under section 17(2)(i) of the Act
(ibid) was obliged to pay the rent within sixty days when the same became due, as he failed to tender the same, therefore, he committed default within the meaning of the aforesaid section of law. The fact that the landlord or his attorney used to accept the delayed payment of rent in the past cannot be deemed to become a permanent practice for the tenant to pay the rent irregularly to the landlord in derogation of section 17(2) of the Act (ibid). In case of ' Mrs. Alima Ahmad. v. Amir Ali' reported in PLD 1984 Supreme Court 32, the apex Court of the country while dealing with similar question ruled as under:--- "The alleged practice of the attorney of the landlady of collecting accumulated rents is of no avail in explaining these delays and defaults as held by this Court in Tirmizi's case. Even this explanation cannot be advanced for the default for the period October to December, 1970, after receipt of the notice (Exh.P.10). The Rent Controller was clearly in error in holding that there was no 'persistent' or 'wilful' default and in ignoring the law laid down by this Court in Tirmizi's case. It was not the exercise of discretion by the Rent Controller but a finding of fact which is demonstrably incorrect that the ejectment of the respondent was disallowed by him. The first appellate authority reversed the finding on default and discovering no mitigating circumstances directed the ejectment of the tenant. The learned Judge was, with utmost respect, under a misapprehension that it was a case of exercise of discretion by Controller which was proper one and the First Appellate Court interfered in the exercise of that discretion and that such interference was unjustified, and hence merited interference in second appeal. Further from the supposed hardship of the law, the learned Judge should not have superimposed a procedure of two notices, extraneous to the statute whose provisions were to be interpreted and applied. The Ordinance protects the tenants against eviction and enhancement of rent, thereby curtailing the plenary power of the landlord to deal with his property and tenant thereof. If promptness in payment of rent, with option to the tenant to deposit it with the Rent Controller, is a condition precedent for enjoying such protections it cannot be relaxed or diluted on grounds of economic well-being, fairness or in the name of justice."
6. Jaffar Shah respondent No,1 has admitted in his statement that he is employed in Pakistan Tobacco Company Akora Khattak whereas respondent No,2 is an employee of Cantt. Board, Nowshera and alleged to be his partner in business in the suit shop but could not produce any partnership deed or any other record to that effect. In the joint written statement of the respondents, they have stated that respondent No,2 is 'Karigar' of respondent No,1 while respondent No,3 is the apprentice of respondent No,2 whereas the respondents set up quite a different case in the evidence which is not in line with the pleadings. The Supreme Court of Pakistan in case 'Muhammad Aslam and others v. Muhammad Ashraf and another' reported in 1986 SCM R 586, observed as under:--- "The examination of the argument of partnership so-called, reveals that Muhammad Aslam did not keep the tenancy to himself but made Muhammad Rafiq a partner in the tenancy also without associating the landlord or obtaining his consent. Muhammad Aslam admittedly had gone abroad: and, the rent was being remitted by Muhammad Rafique. These facts constituted sufficient material to come to a finding that it was a clear case of subletting by Muhammad Aslam to Muhammad Rafique."
In the instant case admittedly first two respondents are in service and third one is running the shop whom the shop was not let out by the landlord, nor any written consent of the landlord for subletting the shop to him was obtained.
The learned Rent Controller has properly read and appreciated the evidence on the record and deduced a correct conclusion which needs no interference.
Consequently, this appeal is dismissed with no order as to costs.