' MUHAMMAD BASHIR JEHANGIRI, J.-This petition for leave to appeal by the tenants arises out of ejectment proceedings initiated by the respondent/landlord under the Cantonments Rent Restriction Act (No,XI of 1963) (hereinafter referred to as the Act).
2. Respondent No,1 filed an application under section 17 of the Act for the eviction of the petitioners and respondent No,2 from the demised shop on the grounds of default in payment of rent and subletting thereof by petitioner No,1 to petitioner No,2 and respondent No,2 without the tacit or implied consent of respondent No,
1. After recording the evidence, the learned Rent Controller, Nowshera Cantonment, sustaining both the grounds on 16-4-1997, accepted the application and ordered the tenants to "vacate the impugned shop within 60 days and handover its vacant possession to respondent No,2".
3. The petitioners filed an appeal under section 24 of the Act against the impugned order of the learned Rent Controller. The learned Single Judge in the High Court on the two crucial points, namely, the default committed and subletting of the premises by petitioner No,1 to petitioner No,2 and respondent No,2, held on the first point that petitioner No,1 was not paying the rent regularly on monthly basis but had been tendering the same after intervals of three to ten months". In this context, reference was made to the "rent for the months from July, 1994 to January, 1996, which was deposited with the Rent Controller by the tenant on 22-2-1995 after he had been served in the ejectment application". On the second point it was observed that petitioner No,1 had admitted before the Rent Controller that he was employed in Pakistan Tobacco Company, Akora Khattak, whereas petitioner No,2 was an employee of the Cantonment Board, Nowshera Cantonment, and the latter was alleged to be his partner in the suit shop but could not produce any partnership deed or any other record to that effect". In this respect, the different stances taken by the petitioners in the written statement was highlighted to indicate the flimsiness of the petitioners' plea. In this view of the record of the case, the appeal filed by the petitioners was dismissed.
4. Qazi Ihsanullah Qureshi, learned Advocate Supreme Court, appearing on behalf of the petitioners, contended that non-appearance of the respondent-landlord as a witness in support of his pleas of default in payment of monthly rent and subletting and stand the test of cross- examination, was a fatal blow to his case. In support of this proposition implicit reliance has been placed on: (i) Ghulam Mohy-ud-Din v. Muhammad Ishaq and 3 others (1980 CLC 241) and (ii)
Muhammad Abdul Karim v. Muhammad Saleem (PLD 1996 SC 252).
5. The landlord-respondent No,1 did not appear in the witness-box and instead his attorney represented him. But this omission, to our mind, is not at all fatal to the pleas of the landlord based on default in payment of rent on monthly basis and subletting the raison d'etre being that the onus to prove both the pleas that the petitioner-tenant had not been guilty of default in making the monthly payment and that of induction of his two co-occupants not as tenants entirely rests on the tenant after it is urged in the petition and asserted in the witness-box even by the respondent No,1 's attorney. In the nature of these assertions the burden entirely shifts on the tenant. The two precedents of Ghulam Mohy-ud-Din and Muhammad Abdul Karim are clearly distinguishable inasmuch as the plea therein raised by the landlord related to his bona fide personal need of the landlord, the onus whereof rests on the landlord and, therefore, his omission to appear personally may, notwithstanding the tenant's demand, lead to adverse inference. Nonetheless even in the aforementioned plea, in our considered view, the rule is not of universal application as has been held in the case of Muhammad Abdul Karim (supra) that "landlord was better judge of his requirements and ordinarily he ought to appear to give evidence to convince the Court of merits of his requirement". Such an exception, amongst many others, may be of a landlord's physical or any other disability. We are, therefore, convinced that personal appearance of a landlord in the witness-box in support of the plea of default in payment of rent and that of the subletting would not be a sine qua non for maintaining the petition of eviction of the tenants.
6. The learned counsel for the petitioners then contended that the respondent/landlord had been himself adopting practice of receiving arrears of rent in lump sum and, therefore, when such a practice was in vogue, the conduct of the landlord himself was such which furnished sufficient justification to the Courts to exercise their discretion against the landlord and dismissed his eviction petition. In support of this proposition, the learned counsel has placed reliance on : (1)
Muhammad Yousuf v. Abdullah (PLD 1980 SC 298), (2) Muhammad Aslam and others v.
Muhammad Ashraf and another (1986 SCM R 586) and (3) Inayat Ullah v. Zahoor-ud-Din and another (1987 SCM R 1313).
7. The facts of the first case of Muhammad Yousuf (supra) are clearly distinguishable in that under the agreement of lease thereunder the lessor was liable to return security deposit to the lessee on expiry of period of lease but he was not returning it nor the lessee was demanding it. It was pleaded before this Court in that case that it was for the lessee to find the creditor and the lessee should have informed lessor to adjust arrears of rent against his deposit. It was, therefore, held that the default being very technical and reducing law to a farce if lessee could be evicted for being in debt to a lessor when in fact lessor stood indebted to the lessee and, therefore, it was no more approved case for exercise of Court's discretion in tenant's favour. It would thus be seen that the ratio propounded in the case of Muhammad Yousuf is not at all to the case in hand. In the case of Inayat Ullah (supra) it appears from the report that the landlord deliberately created difficulties in the way of tenant by not accepting the rent in the hope that some omission or slip on the part of the tenant may enable him to carve out a ground for his eviction. The conduct of the tenant indicated to this Court that there was no element of negligence on their part. It was, therefore, found that on refusal to receive the rent, tenants reasonably adopted the alternate prescribed mode of tendering rent by way of depositing the same with the Rent Controller consistently. In this background the tenants were held not wilful defaulters in the circumstances. It would be noticed that this authority also proceeds on absolutely different factual background than that which has been raised before us and, therefore, this authority is of no help to the petitioners.
8. It was then contended by the learned counsel for the petitioners that the attorney of the landlords used to collect accumulated rent from the petitioners and, therefore, the payment in lump sum of rent for months as has been alleged was not a wilful default under the law. This contention, we are afraid, runs counter to what has been held by a Full Bench of five learned Judges of this Court in the case of Mrs. Alima Ahmad v. Amir Ali (PLD 1984 SC 32). We can do no better than to reproduce hereunder the law enunciated by the Full Bench in the case of Mrs. Alima Ahmad (supra):-- "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 off justice."
9. We are, therefore, of the considered view that the learned Rent Controller as also the learned Single Judge in the High Court who was seized of the appeal have rightly held that the practice of payment of accumulated rents by the tenants and acceptance thereof by the attorney of the landlords was of no avail to the tenants for condonation of element of default in payment of rent.
10. Qazi Ihasanullah Qureshi, learned Advocate Supreme Court also contended that there was no subletting by the petitioners either in favour of petitioner No,2 or for that matter even in favour or respondent No,2 as petitioner No,2 was a partner with petitioner No,1 while respondent No,2 was an apprentice in the demised shop where a workshop had been established for carrying out repairs of T.V. Radio etc. Without any objection from the landlord/respondent No, I . In support of this proposition reference was made to Rais Illahi Bux and another v. Inamullah (NLR 1981 AC 315) from Karachi jurisdiction. This authority', we are afraid, is not attracted to the facts of this case nor does it lay down a correct law on the subject. In this precedent, it was noticed that subletting, if any, had taken place in the beginning of 1971 and the respondents had accepted the rent sometimes from appellant No,2 and, therefore, the respondent had acquiesced in the alleged subletting and by failing to object to the same for about four years and having taken no step in these four years to file ejectment proceedings against the appellants and on that account would be deemed to have waived his rights in respect of subletting. In the instant case, the stand of the tenants-petitioners at different stages had been variant. In the written statement filed by the two petitioners, the tenants- petitioners have taken the stand that petitioner No,2 was while respondent No,2 was termed to be an apprentice. In the examination-in-chief in the Court of Rent Controller, petitioner No,1 has accorded the status of to petitioner No,2 while respondent No,2 was termed as. In the cross- examination, the petitioners turned around and petitioner No,1 admitted that he himself was employed in the Pakistan Tobacco Company while petitioner No,2 was an employee of Cantonment Board, Nowshera and further that petitioner No, I was not paying any salary to petitioner No,2 as he was a partner in the business. All the three inconsistent pleas are mutually destructive and are not of worthy of reliance. Be that as it may, this Court has settled the law in the case of Muhammad Aslam and others v. Muhammad Ashraf and another (supra) and had held that the examination of the argument of partner so-called, reveals that Muhammad Aslam petitioner therein did not keep the tenancy to himself but made Muhammad Rafique petitioner No,2 a partner in the tenancy also without associating the landlord or obtaining his consent. We find no material on the record to show that petitioner No,2 and had been inducted in the premises by petitioned No,1 as partner or even as and respondent No,2 as or employee with consent of the landlord and, therefore, their induction was rightly adjudged to be subletting warranting passing of order of eviction against them.
11. In view of what has been discussed above, we are of the considered view that on both the questions of default in payment of rent and subletting by petitioner No,1 to petitioner No,2 and respondent No,2 the impugned order is unexceptionable. No justification has been made out for our interference.
12. The petition fails and the same is dismissed.