' Precisely stated the facts leading to the filing of the present second appeal are that Muhammad Sadiq, respondent No,1, filed the ejectment petition seeking eviction of the respondent No,2 from the shop in question, on the grounds of default, personal need, damaging the property and inter alia pleading that the original tenant namely Muhammad Shafique, in the year 1998, by violating the terms and conditions of the rent agreement, has sublet the shop in question to the appellant, before the learned Rent Controller. The appellant and respondent No,2. Resisted the ejectment petition by filing separate written replies. The appellant pleaded that, initially, he and respondent No,2 were doing partnership business, however, in the year 1998, the respondent No,2 left the premises and since then the appellant is paying the monthly rent to the respondent No,1, who is issuing receipts solely in the name of the appellant. The respondent No,2, in fact, filed the consenting written reply, thereby submitting that he is prepared to (sic) the premises, in case the ejectment petitioner pays him the expenses incurred by him. It was prayed by him that, subject to preliminary objection No,1, the respondent No,2 has no objection for the vacation of the shop in question. The learned Rent Controller, in exercise of powers under section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959, after finding that the appellant had been depositing the rent @ Rs,3,600, as half of the total rent and half has been deducted from the advance of Rs,5,00,000, only directed Muhammad Shafique, respondent No,2, to deposit the future monthly rent @ Rs,3,600 per month before 15th of each calendar month, vide order, dated 13-6-2002. The appellant filed an application, under section 151, C.P.C. Thereby praying that the order, dated 13-6-2002 be modified and instead of respondent No,2, he be directed to deposit the future monthly rent. However, that application was not, decided during the pendency of the ejectment petition and the same was disposed of along with the main case. The respondent No,2 did not comply with the terms of rent deposit order, dated 13-6-2002 and the learned Rent Controller dismissed the aforenoted application under section 151, C.P.C. Filed by the appellant, and after finding that the rent deposit order has not been complied with, accepted the ejectment petition, vide composite order, dated 5- 7-2003. The appellant filed the first appeal, but the same was also dismissed vide judgment, dated 30-3-2004, hence the present second appeal.
3. The learned counsel for the appellant has submitted that the appellant is in possession of the shop in question and although he had been paying -rent to the respondent No,1 who used to issue the receipts in his favour, yet the learned Rent Controller while passing the rent deposit order under section 13(6) of the Ordinance, 1959, only directed the respondent No,2 to deposit the rent. He has further submitted that the appellant's application for modification of rent deposit order was illegally rejected. He has added that as the basic order, passed under section 13(6) of the Ordinance, 1959, is defective, therefore, the subsequent orders have no legal value. Conversely, the learned counsel for the respondents, while supporting both the judgments, has submitted that the appellant is a subtenant, the respondent No,1 does not acknowledge him as a tenant and the learned Rent Controller was justified in directing the respondent No, 2 to deposit the future monthly rent. He has further submitted that appellant's application for modification of order, dated 13-6- 2002, was rightly dismissed, as the learned Rent Controller had no jurisdiction to review its order.
4. Admittedly, at the time of the institution of the ejectment petition, the appellant was in exclusive possession of the shop in question. The said fact stands acknowledged by the learned Addl. District Judge in the impugned judgment. It is also discernible from available record that the appellant had been paying rent to the respondent No,1, who issued printed receipts in his favour. Photo- copies whereof have been placed on record. Although it was pleaded by the respondent No,1 that the appellant is a sub-tenant, yet the fact about the receipt of rent from the appellant was never denied by the respondent No,l. Additionally, the appellant has produced bank challans evidencing that he had been depositing the monthly rent @ Rs,3,600 in the treasury, favouring respondent No,1 after obtaining necessary permission from the learned Rent Controller and had in fact deposited the rent uptil September, 2003. It has also been acknowledged by the learned Rent Controller, in the rent deposit order, dated 13-6-2003, that the appellant had been depositing the rent @ Rs,5,000 per month and that "receipts produced by the respondent No,2 show that he has been depositing the rent @ Rs,3,600, as half of the total rent to the petitioner". It would be appropriate to reproduce the order, dated 13-6-2002, which really clinches the matter and reads as follows:-- "Arguments heard for passing the order under section 13(6). The rate of rent on behalf of petitioner is submitted as Rs,7,200 p.m. The same rate has been conceded by respondent No,1 for whom written tenancy is on record. The respondent No,2 has submitted the rate of rent as Rs,5,000 p.m.
For which he has produced all the receipts up to the mark. It is further submitted that respondent has already given. Rs,5,00,000 as advance and half of the rent has to be deducted from it. He has produced all the receipts up to date. Though the rate of rent in the tenancy has been acceded as Rs,5000 P.M., but the same tenancy has been established in the year 1993 and as per law, it has to be enhanced at the rate of 25% after every three years. Moreover, the receipt produced by the respondent No,2 shows that he has been depositing Rs,3,600 p.m. As half of the total rent to the petitioner and half has been deducted from the advance of Rs,5,00,000. Therefore, the respondent No,1 having written tenancy in his name is ordered to deposit Rs,3,600 per month in Court before 15th of each calendar month and other half of Rs,3,600, will be deducted from the amount already advanced by the respondent. However, the respondent is entitled to deduct the amount already deposited in the shape of property tax. As far as the controversy of -joint business concerned by the respondent No,2, it will be determined after getting the evidence. Now to come up for submissions of receipts and framing of issues on 26-6-2002." (Underlining is mine).
'It flows from the above that the learned Rent, Controller, despite having admitting that the appellant had been depositing the rent; that he has produced all the receipts up-to-date and that the receipts produced by the appellant show that he had been depositing rent @ Rs,3,600 p.m. As half of the total rent, in complete oblivion of the facts of the case, only directed respondent No,2, Muhammad Shafique to deposit the future monthly rent @ Rs,3,600 p.m. Completely ignoring that the said respondent, in his written reply, has prayed that he has no objection for the vacation of the property. Under the aforesaid circumstances, the learned Rent Controller should have either directed the appellant only or the appellant and respondent No,2, jointly, to deposit the future monthly rent but strangely enough, the learned Rent Controller only directed the respondent No,2 to deposit the future monthly rent. Obviously, the person, who is out of possession and has already filed the consenting written reply, would not comply with the terms of the rent deposit order, so as to facilitate the eviction of the appellant, who is in actual possession of the shop, from the shop in question in a summary manner. This fact further supports the case of the appellant that the ejectment petition was filed with the connivance of both the respondents. To my mind the said order is inherently defective and is not sustainable in law. In the said backdrop, the application, filed by the appellant, is of great significance but for the reasons, best known to the learned Rent Controller, the said application was not decided at its appropriate stage and allowed to remain pending for considerable period, till the same was dismissed along with the main petition.
5. Now coming to the ejectment order, dated 5-7-2003, the said order is in fact based upon order, dated 13-6-2002, which order as held above, is illegal and not sustainable. The ejcetment petition was accepted only on the ground that respondent No,2 failed to deposit the future rent, as directed by the learned Rent Controller. It may be noted that the appellant was never directed at any stage to deposit the future monthly rent. As the basic order, dated 13-6-2002 is not sustainable in law, therefore, subsequent order, dated 5-7-2003 cannot be maintained.
6. Now turning to the judgment passed by the learned appellate authority, suffice it to say that the same is contradictory and suffers from grave legal errors. The learned appellate authority has erroneously held that "That he had been paying rent regularly. This fact is not evident from record".
In fact the appellant has placed on record photocopies of the receipts as well as the bank challan, which is sufficient to demonstrate that the appellant had paid up-to-date rent. The learned appellate authority without undertaking any inquiry and determining the issue of sub-tenancy, has illegally held that "that the property was sublet by the respondent No,2 to the appellant". It is not understandable that on the basis of which material, the learned appellate authority came to the conclusion that the property dwas subject by the respondent No,2 to the appellant, while no evidence was either recorded by the learned Trial Court or by the appellate authority. I further find from the record that the learned Addl. District Judge in complete oblivion of the record of the case, has incorrectly held that the appellant was bound to deposit the rent to continue his tenancy till the final disposal of the rent petition, while paying obeying order of the Court, dated 13-6-2002. The appellant did not deposit the rent". While rendering said findings, the learned appellate authority completely ignored the fact that the appellant was never directed to deposit the future monthly rent and his application in this respect was also dismissed. When, admittedly, the appellant was not directed to deposit the rent, how it can be said that he has disobeyed the rent deposit order and that he did not deposit the rent. The learned Additional District Judge has completely misread the record of the case and decided the appeal in violation of law and facts of the case, inasmuch as the legality and validity of order, dated 13-6-2002, passed under section 13(6) of the Ordinance, 1959 was not appreciated. Seeing from any angle, the impugned judgment cannot be allowed to sustain.
7. In the above perspective, I am of the considered view that the order, dated 13-6-2002, on the basis of which the ejectment order, dated 5-7-2003 was passed, was not passed against the appellant. There were no directions to the appellant to deposit the future monthly rent, therefore, in case of non-compliance of the said order by the respondent No,2, the defence of the appellant could not have been struck off as the basic order is illegal and without jurisdiction. It has been held in Yousaf Ali v. Muhammad Aslam Zia and 2 others (PLD 1958 SC 104) that:-- "And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded."
' In view of the law declared, as the basic order, dated 13-6-2002 was a void order, therefore, the ensuing judgment/ order are not sustainable in law. Surprisingly, the learned Addl. District Judge did not advert to the said material proposition of law and he mechanically dismissed the appeal without application of mind.
8. Upshot of the above discussion is that the present appeal is allowed and orders, dated 13-6- 2002 and 5-7-2003, passed by the learned Rent Controller, and the judgment, dated 6-9-2003, passed by the learned Addl. District Judge, are set aside with no order as to costs. Resultantly, respondent's ejectment petition shall be deemed to be pending before the learned Rent Controller, who shall pass a fresh order, taking into account the above findings, strictly in accordance with the provisions of section 13(6) of the Ordinance, 1959, and thereafter decide the ejectment petition of course, in accordance with law within a period of six months from today. Office is directed to immediately dtransmit the record of the learned Rent Controller, before whom the parties shall F appear on 17-5-2004.