2007 PLP 556 (CLC)

IJAZ-UL-HASSAN KHAN, J.

Appellant Muhammad Zahir has filed instant appeal under section 24 of the Cantonments Rent Restriction Act, 1963 (hereinafter referred to as the Act), to call in question the order dated 3-5-2005, passed by the Rent Controller, Nowshera Cantt., whereby defence of the appellant was struck off and he was directed to put the respondent in possession of the suit shop.

2. Shortly narrated the facts are, that Mst. Hussan Zari, respondent, moved an application under section 7 of the Act, before the Rent Controller, Cantonment Board Nowshera Cantt. for determination of fair rent in respect of tenement bearing Shop No.7 situated in Riaz Shopping Plaza, Nowshera Cantt. The appellant resisted the application on all grounds, legal as well factual, by filing application. On 14-9-2004, Rent Controller passed an order directing the appellant to deposit monthly rent at the rate of Rs.1,150 by the 5th of each month.

3. It appears from the record that appellant failed to deposit the rent for the month of March, 2005 on the 5th of April, 2005, and on 7-4-2005 he moved an application seeking permission for deposit of the rent of March, 2005, which application was resisted by respondent and ultimately vide impugned order, dated 3-5-2005, Rent Controller, Nowshera struck off the defence of the appellant and directed him to put respondent in possession of the shop in question within fifteen days.

4. Before me, Mr. Abdul Qadir Khattak, Advocate for the appellant attempted to argue that failure on the part of the appellant to deposit monthly rent within the stipulated period is not based on any mala fide but due to the sudden demised of a relative in Lahore, which prevented him to deposit monthly rent in time. The learned counsel contended that while passing the impugned order, Rent Controller has acted in haste in utter disregard to the provisions of the Act, which has resulted in manifest injustice. The learned counsel maintained that in view of facts and circumstances of the ease, delay of two or three days in deposit of the rent should have been condoned. In this regard, reliance was placed on Late S.M. Younas Rizvi through Legal Heirs v. Afzal Qureshi 1996 CLC 368.

5. As against that, Mr. Muhammad Alam, Advocate for the respondent fully supported the impugned order and prayed for its sustenance.

6. It has been established on record that the appellant has not complied with the tentative rent order in letter and spirit. As per tentative rent order, he was directed to deposit the rent on the 5th date of each month, but he made default of three days by not complying the Court order. The appellant has not been able to bring on record to show that the default was unavoidable, unintentional and beyond his control. On this aspect of the matter, the legal position is very clear. According to subsection (9) of section 17 of the Act, if the tenant fails to deposit the amount of rent before specified date, or, as the case may he, before 5th of the month, his defence shall be struck off. On its bare perusal, it is manifest that the above provisions are mandatory in nature and even one day's delay in making the deposit would be default within its meaning and Rent Controller has no power to extend time and condone the same. In Misbahullah Khan v. Mst. Mamoona Taskeenuddin 1995 SCMR 287, it was held by the august Supreme Court of Pakistan while interpreting the scope of section 17 of the Act, that tentative rent order can be passed by the Rent Controller even if ground of default is not alleged for seeking conviction. It was also observed that non-compliance with the tentative rent order is directly punishable and in consequence the defence of tenant can be struck off and eviction can be granted.

7. In the result and for the foregoing reasons, finding no substance in this appeal, I dismiss the same, with no order as to costs. The appellant shall vacate the suit shop within one month from today. H.B.T./11/P Appeal dismissed.