SAYED NAJAM-UL-HASSAN KAZMI, J.- This order will decide, FAO No. 274/97, FAO No. 275/97 and FAO No. 276/97, as the same arise out of one ejectment petition and raise common questions of law and facts.
2. Salamat Ali, respondent, filed a petition u/S. 17 of the Cantonment Rent Restriction Act, 1963. For seeking eviction of Muhammad Azam, Muhammad Yousaf and Muhammad Younas, appellants, in three appeals respectively, from Shop No. 1482/8 Day Building Lahore Cantt., on the ground of default in payment of rent subletting and personal use. The respondent claimed, that Muhammad Azam, appellant in FAO No. 274/97, was a tenant in the shop on a monthly rent of Rs. 200/-, who had sublet the same, to Muhammad Yousaf and Muhammad Younas, appellants in FAO No. 275/97 and FAO No. 276/97 respectively. The property was purchased by the respondent, from one Muhammad Tufail son of Fazal Din, vide sale-deed, dated 21.2.1989. Who claimed defaulting payment of rent, w.e.f. 21.2.1989. The tenant was arrayed as respondent No. 1 while the subtenants were arrayed as respondents Nos. 2 and 3 in the ejectment petition.
3. The appellants resisted the ejectment petition, by filing a joint written statement, wherein they claimed, that the ejectment petition was malafide. It was also pleaded, that Ghulam Rasul father of Muhammad Azam (real tenant) was a tenant in the main shop on a monthly rent of Rs. 1000/-.
Muhammad Yousaf and Muhammad Younas (arrayed as respondents Nos. 2 and 3) in the ejectment petition) were in occupation of a portion of the said shops as tenants and they were not subtenants. It was further pleaded, that respondents Nos, 2 and 3, in the ejectment petition, were in occupation as a tenant and had been paying rent to the original tenant, namely, Ghulam Rasul (father of Muhammad Azam). Other averments in the petition were also controverted.
4. The learned Additional Rent Controller, passed an order for deposit of arrears of rent as well as future monthly rent, on 8.2.1990, whereby, the rate of rent was tentatively determined as Rs. 150/- and direction was issued, that the rent should be deposited, by Muhammad Azam, tenant in the shop, at the rates of Rs. 150/- from March, 1989 to January, 1990 (amounting to Rs. 1650/-), who shall also deposit the future rent, before 5th of each calendar month, since February, 1990.
5. The learned Additional Rent Controller, after evidence, accepted the ejectment, vide order dated 20.1.1991. This order was challenged in three appeals (FAO 59/91, FAO 60/91 and FAO 61/91), which appeals were accepted, on 8.7.1997, by this Court, and resultantly, the case was remanded, to the learned Additional Rent Controller, for fresh decision of the same after arguments of the parties.
The remand order was passed, for the reasons, that the learned Additional Rent Controller, had not considered the evidence on record.
6. After remand the learned Additional Rent Controller, heard the two sides, and accepted the ejectment petition, by his order, dated 30.9.1997, which has now been challenged in the three appeals. FAO. 274/97, has been filed by the tenant (Muhammad Azam) while FAOs No. 275/97 and 276/97 have been filed by Muhammad Yousaf and Muhammad Younas, respectively, who were arrayed in the ejectment, as sub-tenants.
7. Learned counsel for the appellant, argued, that the learned Additional Rent Controller, proceeded beyond scope of the remand order, while closing the defence of the appellant, on the grounds, that he had failed to comply with the order for the deposits of the rent. He further submitted, that the question of default was not decided on merits, and instead, the defence was struck off. As regard the plea of sub-tenancy, it was argued, that the documentary evidence, showing tenancy from Cantonment Board were not taken into consideration, while determining the question of sub- tenancy, which prejudiced the case of appellants. As regard personal use, it was argued, that the respondent/landlord was in service and, therefore, without resigning from service or relieving from his duties, he could not maintain ejectment petition, on the plea of personal use, which petition, had to be dismissed as premature.
8. Conversely, learned counsel for the respondent, supported the order of learned Addl. Rent Controller and by making reference to the written statement maintained, that the appellants had themselves admitted them to be sub-tenant of the original tenant of the respondent and.
Therefore, the plea of tenancy with the landlord, attempted to raise in the evidence, according to the learned counsel, could not be entertained. Regarding the plea of default, it was argued, that the appellant despite order of deposit of the rent, made deposit in the name of previous owner, and thus rendered himself as defaulter. On the plea of personal use, it was argued that there was no requirement of law, that the landlord should remain idle during the ejectment proceedings.
9. With the assistance of learned counsel for the parties, the entire evidence has been reviewed. On giving due consideration, to the submissions made, it is observed, that for the reasons hereafter, the appeals are without substance.
10. The plea, that the learned Additional Rent Controller, travelling beyond the scope of remand order, is without substance, inasmu ch as, the remand order was not passed for any limited purpose, and the order is indicative of the fact, that the remand become indispensable as the learned Additional Rent Controller had not attended the evidence and the Court felt the necessity of reconsideration of the evidence and for re-decision of the case. On the remand of the case the entire was re-opened and the respondent was legally entitled, to raise the plea of default in compliance of the order of deposit of rent. The respondent had proved, transfer of ownership, by Exh. P-1, which was registered sale-deed, dated 12.2.1989. In view of the admitted relationship of landlord and tenant, between the respondent and Muhammad Azam, the learned Addl. Rent Controller passed an order u/S. 17(8) of the Cantonment Rent Restriction Act, 1963, on 8.2.1990, direction the tenant, to |Vol, XVIH deposit arrears of rent, from March, 1989 to January. 1990 before 5.3.1990 and also to deposit future rent in the Court before 5th of each calendar month, at the rate of Rs. 150/- p.m. Record reveals, that the appellant deposited, rent through Exhs. R-8, 9, 10, 11,12, 13, 14 and 15. In favour of Muhammad Zakir the previous owner, which was not a valid tenuer in view of the rule laid in "Kh. Ghulam Mustafa v. Mian Waqar. Ahmad" (PLD 1980 SC 9) and Ghulam Sutndani v. Abdul Hamid" (1992 SCM R 1170) and PLD 1997 (c) Lhr. 99) the other receipts, produced by the appellants also indicate, that the order was not complied with, even in the matter of deposit of future rent from February, 1990 as deposit was not made in favour of the landlord. This being so, the learned Addl. Rent Controller, was justified, in closing the defence of the appellant, on account of non-compliance of order. Of deposit of rent. The argument, that this question could not be examined, in the post remand proceedings, is devoid of any merit, as hearing the case, in pursuance to a general remand order, the learned Addl. Rent Controller, could attend to all the issues afresh,, including the issue relating to the closing of defence, due to non-compliance of the order for deposit of rent. Even at the time of hearing of this appeal, learned counsel for the appellant, could not give any valid reason, for, not depositing the rent, in favour of respondent. It was, therefore, a case of wilful default. Regarding the default on merits, it is observed, (hat the plea of the landlord was, that the rent was not paid from 21.2.1989. The appellant did not produce any receipt for payment of rent, to respondent or deposit in his favour, for the disputed period, i.e. From 21.2.1989, till October, 1989. On the contrary, the money order coupon and the receipts produced by him, relate to the tender to or deposit in favour of Muhammad Zakir, which could not considered to be a valid tender. The appellant was, therefore, a defaulter on merits as well as part from having been failed to comply with the order of the deposit of the rent.
11. Insofar as the question of sub-tenancy is concerned, there is a force, in the submission of learned counsel for the respondent, that the appellants had admitted sub-tenancy, that the appellants had admitted sub-tenancy, in the written statement. A joint written statement was filed by all the appellants who were respondents in the ejectment petition. In para 1 of the reply, on merits, it was pleaded that respondents Nos. 2 and 3 (who are appellants; in FAO 275/97 and FAO 276/97) were tenants, who had been paying rent to the original tenant in the shop, namely, Ghulam Rasul. Ghulam Rasul is father of Muhammad Azam. Initially Ghulam Rasul was a tenant on whose demise Muhammad Azam became a tenant in the shop. The other two appellants, therefore, pleaded in the written statement, tenancy with Ghulam Rasul, predecessor of Muhammad Azam and obviously their status will be as of sub-tenant as the Ghulam Rasul was not the owner but a tenant in the shop. In view of the plea, taken in the written statement, no evidence could be led, to raise the plea, that they were tenants under the previous owner of the property, as it will be self- contradictory plea. Even otherwise, no evidence could be led, to establish a fact, for which no foundation had been laid in the written statement. The evidence, and the pleading were, therefore, self-contradictory. This being so, the learned Additional Rent Controller, was not under any obligatieeon, to attach any importance to the alleged license, from the Cantonment Board as the same were irrelevant to defend issue. The findings of learned Additional Rent Controller, on the question of sub-tenancy is, therefore, unexceptional. As regard, the plea of personal use, there is evidence on record to the effect, that the respondent need the shop in good faith and bona fide manner. The respondent, appeared in the witness-box, and made a statement, that the shop in question was required in good faith by him for his bona fide needs and that he was not in occupation of any other shop suitable to his requirement. He has explained, in cross-examination, that he is in the employment but will leave his job and will run the business on the vacation of the shop. Even RW-1, has admitted, that respondent No. 1. Sells tea after returning from his job and that he did not on any other shop except the shop in issue. The respondent has thus satisfactorily established, that the shop was required in good faith for his personal use. It was not the requirement of the law, that the landlord should sit idle, during the time, the ejectment petition is prosecuted on the ground of personal use. All that is required is that once the shop is vacated the landlord shall occupy the same within statutory period for his personal use. It is not difficult to tender resignation from the job, if the shop is vacated. Obviously, if after vacation of the shop, the respondent does not occupy the same, The appellant can apply for restoration of possession and, therefore, they are fully protected in law. Reference can be made to PLD 1982 SC 218, where it if ruled., that the Landlord need not to sit idle during the pendency of the ejectment petition filed on the ground of personal use. The learned Addl. Rent Controller, too, note of, the evidence and concluded, that the plea of personal use was established beyond doubt. On re-appraisal of the evidence, it is observed, that the findings so recorded do not suffer from any misreading or non- reading of the evidence and, therefore, no exception can be taken therefrom.
12. In view of the above, these appeals are without substance which are accordingly dismissed. The appellants are however, allowed two months time to deliver vacant possession of the shop to the respondent.