By this second appeal under section 15 of the Urban Rent Restriction Ordinance of 1959, the appellant Mst. Khurshid w/o Sardar Khan has assailed the order dated 27th May 1975, whereby the District Judge, Quetta dismissed her two appeals and confirmed her summary ejectment from the premises.
2. The necessary facts leading to this appeal are that the house bearing No. 4-14/13 situated on Meconghely Road, Quetta, initially was rented out to Sardar Khan, the respondent No. 1, the husband of the appellant, at the rate of Rs. 60 per mensem. The landlords/respondents filed ejectment application in the Court of Rent Controller, Quetta on 22nd February 1971 under section 13 of the West Pakistan Urban Rent Restriction Ordinance against Sardar Khan and one Mohammad Rashid on grounds that the respondent No. 1 was a bad pay master and bad failed -to pay rent for about 30 months, in-spite of his repeated demands. Nonetheless he had also sublet a portion of the house without their consent and permission to the respondent No. 2. The respondents did not resist the application. In result, they both were ordered to be proceeded with ex parte. However, before the matter could finally be disposed of, Mst. Khurshid filed an application on 17th May 1971 praying that she may be allowed to be joined as an opponent in the ejectment proceedings, for the reasons that she was in exclusive possession and occupation of the house as a tenant. Her application was resisted by the landlords on the ground that Sardar Khan was their tenant but, not the appellant. However, the Court allowed her application and ordered that she be arrayed as opponent in the ejectment application. She filed written statement. The Rent Controller, without framing -any issue in :respect of relationship of landlord and tenants between the parties, directed the appellant to deposit arrears of rent as well as monthly rent regularly. The appellant challenged the order before the District Judge, Quetta. On 26 July 1973 the District Judge, set aside the order of the Rent Controller and directed the Rent Controller, Quetta to frame an issue in respect of relation--ship of landlord and tenant between the parties before passing of an order under section 13 subsection (6) of the Ordinance.
3. When the matter came back before the Rent Controller Quetta, the landlords filed amended application, asserting that respondent No. 2, wife of the respondent No. 1, who has been joined as a party on her assertions, was liable to pay the rent for the last 39 months commencing from 1st January 1970 amounting to Rs. 2,340. On strength of this amended application, the Rent Controller ordered the appellant to deposit arrears of rent and future monthly rents under section 13 subsection (6) without framing the issue of relationship of landlord and tenant between the parties in utter violation of the direction of the District Judge, Quetta. On 27th July 1974, the petitioner filed appeal against this order in the Court of District Judge, Quetta. It appears that no stay order was granted in favour of the appellant. Mean--while, on her failure to deposit the arrears of the rent, her defence was struck off. She was ordered to be ejected summarily. The appellant challenged this order before the learned District Judge, Quetta too. By his consolidated order dated 27th May 1975 the District Judge, dismissed the two appeals of the appellant.
4. This appeal is directed against the above said order.
5. Mr. Azizullah Memon, counsel for the appellant vehemently argued that it was incumbent upon the Rent Controller Quetta to have framed the issue of the relationship of landlord and tenant between the parties, before passing the order under section 13(6) of the Ordinance of 1959. On his failure of doing so, his two orders were ab initio, illegal, void and having no force of law. The learned counsel relied on case, Muhammad Ismail v. Israr Ahmed (PLD 1961 Lab. 601), where it was held :- "That the issue whether the relationship of landlord and tenant exists between the parties is one of jurisdiction and should be determined first in case the answer be in the negative, the controller loses seisin over the list and must stay his hands forthwith."
6. The next authority relied was, Mst. Karam Bibi v. Mir Muhammad Hassan and others (PLD 1962 Quetta 67), where was held :- "It is true that a mere denial of tenancy, howsoever frivolous would not oust the jurisdiction of the Controller, but when there is such a denial, the Controller must determine that controversy before he makes an order for the deposit of rent."
7. The third authority relied by him, was, Akhtar Ali Parvez v. Altafur Rehman (PLD 1963 Lab. 390), where was held :- "That deposit of arrears of rent etc., by tenant may not be ordered where tenant objects to jurisdiction of Rent Controller such objection being based on non existence of relationship of landlord and tenant. In such case, question of jurisdiction is to be decided first."
8. The fourth authority relied upon by him, was, Mehdi Hassan v. Ghulam Muhammad etc. (PLD 1964 Lab. 648), where it was held:- "The Rent Controller, therefore, can order a respondent to deposit the rent only in case when either it is admitted that he is the tenant of the petitioner or when having been disputed, it is proved and decided that the respondent was, in fact, the tenant."
9. The last authority relied upon is Abdullah Bhai and others v. Ahmed Din (PLD 1964 SC 106), where it was held :- "The reference to leased premises in the definition of tenant also shows that the existence of a lease is implied. The intention of the Karachi Rent Restriction Act appears to have been to give additional protection to those who according to the law as it stood were tenants and not to confer tenancy rights on persons who in accordance with law were never tenants. According to the ordinary law only a person who has in his favour a lease is a tenant."th
10. Mr. Munawar Ahmed Mirza, the learned counsel for the respon--dents repudiating the contentions of the appellant stated that after the amendment of the pleading by the respondents, it, was not necessary for the Rent Controller to have framed the issue of the relationship of landlord and tenant between the parties. As by the amendment, the respondents purported to accept the appellant to be their tenant. He has emphasized that there was nothing wrong with the order of the District Judge, which would necessitate interference of this Court. The learned counsel drew my attention to authority reported in Safdarall v. Muhammad All (PLD 1974 Quetta 1), where it was held :- "If the tenant raises an objection about jurisdiction which is a frivolous or same objection as in the present case the Rent Controller should decide the objection first provided his attention is drawn to it by the tenant."
11. The learned counsel also referred to Faqir Muhammad v. Dr. Muhammad Yasin and 2 others (PLD 1964 Lab. 686) where it was held :- "That the Rent Controller is a special Tribunal constituted under the West Pakistan Urban Rent Restriction Ordinance, 1959. He is not a Court stricto sensu and the proceedings before him cannot be challenged on the ground that he had failed to observe the procedure prescribed for the civil Courts. The fact that no issue was framed, by itself, will not, therefore, make the order of the Rent Controller, illegal or irregular."
12. The last authority relied upon by him was Ibrahim v. Muhammad Hussain (PLD 1975 SC 457), where it has been held :- "The interlocutory order of provisional character made under first part of section 13 subsection (6) not necessary resulting in striking of defence and order of ejectment not appealable under section 15 sub--section (1)."
13. Before analysing the stands of the two learned counsel, it is necessary to look into the scope and operation ofthe West Pakistan, Ordinance 6 of 1959, subsection (2) of section 13 reads :- "A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf.
The definition of word controller has been given in subsection (b) of section 2 means a judicial officer, who is appointed by the provincial Government to perform the functions of the Controller under this Ordinance.
The definition of word landlord is given in subsection (c) of this section as, landlord means any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf or for the benefit of any other person, or as a trustee, guardian, receiver, executor or administrator for any other person, and includes a tenant who sublets any building or rented land in the manner hearinafter authorised and every person from time to time deriving title under a landlord.
The definition of the word tenant is given in subsection (1) as, tenant means any person by whom or on whose account rent is payable for a building or rented land and includes (a) a tenant continuing in possession after the termination of the tenancy in his favour, and (b) the wife and children of a deceased tenant, but does not include a person placed in occupation of a building or rented land by its tenant, unless with the consent in writing of the landlord, or a person to whom the collection of rent or fees in a public market, cart stand, or slaughter house or of rents for shops have been framed out or leased by a Municipal, Town or Notified Area Committee or by the Corporation of the City of Lahore or by the Lahore Improvement Trust or any other Improvement Trust."
It is thus necessary that the dispute should be between landlord and tenant to give seisin over the lis to the Controller. If any one arm giving seisin to the Controller misses, the Rent Controller losses jurisdiction over the dispute. The gist of the authorities relied upon by the appellant is that in case of dispute, the Rent Controller had to frame an issue regarding relationship of landlord and tenant between the parties. Irrespective of the fact whether the objection was raised by the landlord or by tenant.
14. In strict sense, it could be said that a Rent Controller shall have jurisdiction to entertain or decide an application under the provisions of this Ordinance, only in a case, where there is relationship of a landlord and tenant between the parties. In case where there is a dispute in respect of the relationship of landlord and tenant between the parties, irrespective of the fact whether the objection is raised by a tenant or by the landlord, it is incumbent upon the Rent Controller to frame an issue as to whether there exists relationship of landlord and tenant between the parties or not.
In absence of such adjudication on the issue the Rent Controller does not have jurisdiction to proceed further into the matter. As such the both orders of the Rent Controller suffer for want of jurisdiction. Both orders could be said as void orders. In a case reported in Yousaf Ali v. Muhammad Aslam Zia and 2 others and Muhammad Aslam Zia and others v. Yousaf Ali (PLD 1958 SC (Pak.)
104), it has been held that :- "Where the Legislature clothes an order with finality, it always assumes that the order which it declares to be final is within the powers of the authority making it, and no party can plead as final an order made in excess of the powers of the authority making it, in the eye of the law such order being void and non-existent. 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."
15. Moreover, in the first appeal decided on 26-7-73 the learned District Judge, has categorically directed the Rent Controller Quetta to frame an issue in respect of the relationship of landlord and tenant between the parties and thereafter proceed further with the case. Undoubtedly the directions of the Appellate Court were not complied with by the Rent Controller, Quetta. It appears that the Rent Controller, was satisfied with mere amendment made by the landlords in their application. The Rent Controller did not care to look to the wordings of the para. Three of the application. In the amended application the landlords have not accepted the appellant to be their tenant. They have said the respondent No. 2 has been joined on her own assertions a party in the , proceedings and is in occupation of the premises in question as a tenant since Ist January, 1970 onwards." They have further added that the respondent No. 2 is as such liable to pay rent for 39 months from Ist January, 1970." By these words alone, it cannot be assumed that the respondents had accepted the appellant as their tenant. In para 1 of the application, the appellants have said that the appellants are landlords and the respondent No. 1 was their tenant. In the second para. They have a said that the respondent was a bad pay master and troublesome tenant. The minute study of these paras would clearly indicate that the respondents were reluctant to accept the appellant as their tenant. In such case, where the dispute is not between a tenant and a landlord, the provisions of the Rent Restriction Ordinance could not be evoked. Evidently, the Rent Controller shall cease to have jurisdiction to adjudicate the dispute. As it appears that from the very beginning, the respondents have claimed that Sardar Khan was their tenant. The appellant has been joined as a party on her own request.
16. After the direction of the learned District Judge, the respondents did amend the application, and stated that the appellant was liable to pay rent but they did not accept her to be their tenant in clear words.
17. In view of the circumstances, it was necessary that the issue of the relationship of landlord and tenant should have been framed by the learned Rent Controller, and had allowed the parties to lead their evidence before dealing further into the matter.
18. In view of my findings, given above, I am of clear view that the Rent Controller ought to have decided the issue of relationship of landlord and tenant between the parties. Albiet the authorities referred by the learned counsel speak about objection raised by the tenants in ejectment proceedings but, the same principle can be applied in cases where there is such objection raised by a landlord. The cumulative effect of my above observations is that the both orders dated 27th July 1974 and 23rd October, 1974 suffer from infirmity.- In result, the impugned order is set aside.
19. The matter is remanded to the Rent Controller Quetta with direction to frame the issue of relationship of landlord and tenant between the parties as directed by the learned District Judge earlier and thereafter take further proceedings. However, while remanding the case, I would make it clear that the Rent Controller should not be prejudiced by any observation made in this Judgment.
He is at liberty to decide the matter on evidence produced by the parties before him.
20. With these observations, the appeal is disposed of with no order as to costs.
21. The record and papers of the case be returned forthwith to the Rent Controller, Quetta. He is directed to dispose of the matter within two months.
22. This judgment constitutes the details of the short order announced on 5th November, 1977.