NOOR ELAHI and 2 others vs MUHAMMAD SHARIF KHAN SHINWARI and 23
This matter concerns a petition for leave to appeal against an order of the Peshawar High Court, which upheld an eviction order passed by the Controller of Rents. The petitioners, tenants of a hotel and restaurant, faced eviction proceedings initiated by the landlord on grounds of personal requirement and subletting under the Cantonments Rent Restriction Act, 1963. The core legal question before the Supreme Court is whether a clause in a written rent agreement, stipulating that the lease would not be extended and the landlord could initiate legal proceedings upon expiry, satisfies the statutory requirement of a two-year notice period mandated by the third proviso to section 17(4) of the Cantonments Rent Restriction Act, 1963. The Court observed that the landlord failed to serve a formal written notice two years prior to filing the ejectment application. Recognizing that the interpretation of whether contractual terms can substitute for statutory notice requirements is a significant legal issue requiring authoritative determination, the Supreme Court granted leave to appeal to resolve this specific question of law, while maintaining the status quo.
- Does a clause in a rent agreement stating that a lease will not be extended and that the landlord may initiate legal proceedings upon expiry satisfy the two-year notice requirement under the third proviso to section 17(4) of the Cantonments Rent Restriction Act, 1963?
- Is a formal written notice mandatory under the third proviso to section 17(4) of the Cantonments Rent Restriction Act, 1963, before a landlord can seek eviction on the ground of personal requirement for premises used as a hotel or restaurant?
- Section 17, Cantonments Rent Restriction Act, 1963
- Section 17(4), Cantonments Rent Restriction Act, 1963
ORDER
1. ' MUKHTAR AHMED JUNEJO, J.---Leave to appeal is sought against an order dated 12-6-1994 passed by a learned Judge of the Peshawar High Court in F.A.O. No,67 of 1993.
2. ' Admittedly the petitioners were tenants of respondent No,1 in the property in litigation bearing No,1192 (420/3) known a Galaxie Hotel and Chandni Restaurant at Peshawar Cantonment.
3. Respondent No,1/landlord moved an application in the Court of Controller of Rents, Peshawar Cantonment under section 17 of the Cantonments Rent Restriction Act, 1963 (hereinafter mentioned as 'the Act') for eviction of the petitioners and others from the premises in litigation on the grounds of personal requirement and subletting. Under an order dated 20-9-1993, the Controller of Rents accepted the ejectment application and ordered eviction of the petitioners and respondents 2 to
18. The petitioners challenged the order of eviction in the High Court, which maintained order of the Rent Controller dated 20-9-1993. Hence this petition.
4. ' The main thrust of Mr. M. Sardar Khan, learned counsel for the petitioners, was that before filing ejectment application under the Act, respondent No,1/landlord had not complied with third proviso below subsection (4) of section 17 of the Act. It was also contended that the evidence on record was not sufficient to establish the ground of personal requirement. Mr. K.M.A. Samdani, learned counsel for respondent No,1, argued that there were in all three rent agreements between the parties including the last one dated 31-1-1987 covering the period 1-1-1987 to 31-12-1988. That in the last rent agreement dated 31-1-1987 it was specifically mentioned that at conclusion of the period of lease, possession of the rented premises would be handed over to the landlord and in case of default the landlord would be competent to throw away the tenants and their luggage from the demised premises and secure possession of the same and that there would be no further extension of the lease. Such provision in the rent deed dated 31-1-1987 amounted to notice of two years envisaged by third proviso below subsection (4) of section 17 of the Act, as argued by the learned counsel for respondent No, 1.
5. The third proviso below subsection (4) of section 17 of the Act, enjoins upon a landlord seeking eviction of his tenant on the ground of bona fide personal use from the rented premises used inter alia as hotel or restaurant, to give notice of two years to such tenant sought to be evicted, before moving an application for ejectment under section 17 of the Act. Admittedly no such notice in writing was served on the petitioners by respondent. No,1 two years before filing of the rent case. It is, however, mentioned in the written agreement dated 31-1-1987 between the parties, that they would be bound by the terms of the written deed. That there would be no further extension in the period of lease and that the landlord would be at liberty to initiate legal proceedings against the petitioners after expiry of the lease period. The question, whether such terms incorporated in the written rent deed, would amount to notice envisaged by third proviso below subsection (4) of section 17 of the Act, requires consideration.
6. ' Consequently leave to appeal is granted to determine the said question. Status quo to continue.
7. Appeal to be heard within 3 months.