Ishaq Khan Vs Rubina Asif

PESHA WAR HIGH COUR T ABBOTTABAD

dtP BENCH

JUDICIAL DEPARTMENT

JUDGMENT SHEET

RFA No.42-A/2022

Date of hearing l5'02,2023

Appellant/s (Ishaq Khan) by Mrl Sehrish H ab i b Dilazok, Advocate.

Respontlent/s (Rubina Asifl by Muhammad Ayub Awan, Advocate.

FAZAL S HAN . By way of this single judgment, this and the following three Regular First Appeals filed under Section 24 of the Cantonment Rent Restriction Act, 1963 shall be a decided jointly, as all arises from the judgments and decrees dated 16.02.2022 passed by Rent Controller in Ejectment Petitions'

(1)RFA No.43-A/2022 Khalid Juved Vs Rubina Asd

(2)RFA No. 44-A/2022 Sheraz Khan Vs Rubina Asd

(3)RFA No.45-A/2022 Muhammad Bilal Vs Rubina Asif

2 Relevant facts of the case are that respondent Rubina Asif widow of Asif Jaa filed ejectment petitions before leamed Rent Controller Cantonment, Abbottabad to the effect she that after the demise of her husband, has become landlady of the suit premises rented out by her husband to the petitioners vide agreement dated 06.05.2006 on the monthly rent @ Rs.

25001-. That she was living abroad and was unable to handle the affairs of shops personally and petitioners never deposited the rent with l0%o annual increase according to agreement. In the year, 2012 she issued legal notice to the a petitioners demanding increased rent of Rs. 60001-, however, petitioners instead of submitting revised rent filed a suit in Civil Court for deposit of rent and started to submit rent, whereafter she filed ejectment petition against them.

J That after filing the ejectment petition the petitioners filed written replies and leamed Rent Controller passed an order for deposit of

rent with l0% enhanced rate and vide impugned order, the Rent Controller accepted the petition ofrespondent and passed ejectment order against the petitioners.

4 Aggrieved from the said judgement/s of the leamed Rent Controller, present petitioners preferred these appeals.

5 Arguments of learned counsel for petitioners and learned counsel for respondents heard and record perused.

6 Record transpires that the respondent Mst. Robina Asif widow of Asif Jaa filed ejectment petition against the present petitioners under Section 17 of the of the Cantonments Rent a Restrictions Act, 1963, from shop No. 4, 8, 9 and shop consisting of service station, on the ground of default and subletting. After filing these petitions the leamed Rent Controller, on 16.09.2022, passed an order of deposit of interim rent under Section 17 (9) of the ibid Act as following;

"Application for depositing of rent by the pelilioner is hereby

allowed, respondent is directed to deposit arrears of rent with the effect from 01.06.2007 to 30.09.2020 with 10% annual increase as per agreement within 30 days of lhis order. He is further direcled to keep depositing monthly renl @ Rs. 11,690 with this court by 5th of each monlh in advancett.

1 The said provision reveals that the Rent Controller issued specific order directing not only to deposit arears of rent w.e.f' Ol .06.2007 to 30.09.2020 but also directed for deposit of the rent with 10% annual increase as per agreement within 30 days from the passing a of the said order. The petitioners were further directed to regularly deposit Rs. 11,690 with the couft/Rent Controller by 5th day of each month in advance.

8 The order passed by the learned Rent Controller was in line with Section 17(8) of the Act of 1963, which is reproduced below for the sake of convenience.

'(17(8) On the Jirst hearing of proceeding under this section or as soon thereafter as may be put before the issues are framed, the Controller shall direct the tenant to deposil in his office before a speciJied date all the rent due from him, and also so deposit regularly till the Jinal decision of the case, before the Sth day of each month, lhe monthly rent which subsequenily becomes due, and if there be any dispute as to the amount of rent due, the Controller shall determine such amount approximately,

9.Section 17(9) of the ibid Act contains penal provision for disobedience of order passed under subsection 8, which read as following.

a "(17(9) If the tenant fails to deposit lhe amount of rent before the specified date or, as the case may be, before the Sth day of the month, his application if he is a petitioneh shall be dismissed, or his defence, d he is a rcsPondenl, shall be struck off, antl the landlords shall be Put in possession of the building without

any further proceedings".

10.The said two provisions, in view of the word "shall" used therein are mandatory 1n nature and the tenant was required to comply the said order in letter and spirit for the reason that it caries a penalty of striking of the defence of the respondent/tenant in case of non-compliance. In all the petitions before the leamed Rent Controller the petitioners failed to deposit the specific l0%o, over and above, the rent already fixed. The learned counsel for petitioners during arguments submitted that Rent Controller has not conducted any calculations to determine the a default, whereas the appellants were regularly depositing the rent before the civil court. This arguments of the leamed counsel for petitioners is not tenable for the reason that the Rent Controller vide its order dated 16.09.2020 has issued direction for deposit of arrears of rent as well as with 10% annual increase, as per rent agreements, in the said court/Rent Controller, by 5th of each month, in advance. The appellants

have been unable to show that in addition to the rent they have also paid/deposited 100% annual increase amount and due to non-compliance of the specific order of 10% deposited the Rent Controller right to the conclusion that the order dated 16.09.2020 was not complied and they have committed a willful default in respect of the l0oZ annual increase. The said 1002 increased amount was to be deposited with the Rent Controller but no proofto this effect was brought on record and, therefore, the learned Controller was .iustified under the law referred to above to strike down the defence of the appellants and ordered for their eviction. In the case of "M,H.

a Mussadaq Vs, Muhammad Zafar lqbal and anolher" reported in 2004 SCMR 1453, the August Supreme Court of Pakistan has held that:-

uon lhis aspect of the matter, the legal position is very clear.

According to subsection (9) of section 17 ofthe Acl, dthe lenant

fails to deposit the amounl ofrent before speciJied date, o4 as the

case may be, before 5th of the month, his defence shall be stuck off. On its bare perusal, it is manifest that he above provisions are mandatory in natare and even one day's delay in making the deposit would be defoult within) its meaning and Rent Conlroller has no power to extend time and condoned the same. To further fortify, reference can be made to the case of Misbahullah Khan v. Mst. Memoona Taskinuddin 1995 SCMR 287 in which this Court while interpreting the scoPe of section 17 of the Act, has held that lentative rent order can be passed by the Rent Controller even d ground of default is not ? alleged for seeking eviction. 'It is also observed that non- compliance with the tentative tent order is directly punishable and in consequence the defence of lenanl can be stuck off and eviction cdn be granted", 11. In another case titled "Dr. Muhammad Safdar Vs Mst. Shaista Amjad" reported in 2015 ldLD 1342, it was held that:-

"seeking guidonce tnd deriving wisdom from the above referred judgments one can reach to an irresistible conclusion that once a defoult is established, the Rent Controller has no other oPtion bul to pass an orderfor striking of the tlefence and Put the landlord inlo possession of the suit premises. The leorned Rent Controller while deciding the rent petition has not adverted to the legal aspects of the case, thus, has committed serious illegalitY' resulting into miscarriage of justice.

t2. No illegality or irregularity in the amount have been pointed out, hence, this appeals being bereft of any merits stands dismissed.

Announced

Date of writing Judgment t'7 .02.2023

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JUDGE