SYED HAMID ALI SHAH, J.--- This is the second appeal against order. Respondent purchased shop No. 8 situated at basement of Alam Center No. 66, Shadman Colony, Lahore and after its purchase on 16.12.1999 the respondent filed ejectment proceedings against the appellant. The appellant claimed that he is in occupation of premises, as a mortgagee for the last past 18 years and the landlord tenant relationship does not exist between the appellant and the respondent The appellant further claimed that he was not tenant of the previous owner/vendor, even.
2. The learned Rent Controller held the denial of relationship of landlord and tenant as evasive and as a result thereof ordered the payment of rent of Rs. 970/- per month from July, 1999 till 3.2.2003 while the order under Section 13(6) of the Punjab Rent Restriction Ordinance, 1959, was passed.
Learned Court framed the following issues:-- ISSUES "(1) Whether there exists any relationship of landlord and tenant between the parties OPA.
(2) Relief."
3. The appellant instead of complying with the order dated 3.2.2003 moved an application for review of the order on the ground that the relationship of landlord and tenant does not exist, therefore, an order under Section 13(6) is unwarranted. Consequently the learned Rent Controller struck off the defense of the appellant on 31.1.2004 due to non-compliance of the order passed under Section 13(6) of the West Pakistan Rent Restriction Ordinance, 1959. The appellant was ordered to hand-over the vacant possession of the property within a period of one month. The appellant assailed the said order in appeal which was heard by Mr. Shaukat Iqbal Ahmad, learned Additional District Judge, Lahore, who was pleased to dismiss the appeal. Vide order dated 23.9.2004. The appellant was directed to hand-over the vacant possession within a month. Hence this appeal.
4. Learned counsel for the appellant contends that the provisions of Section 13(6) of the West Pakistan Rent Restriction Ordinance, 1959, cannot be invoked in the proceedings where the relationship of landlord and tenant is denied. Adds that the said proceedings are attracted only in the cases in which the tenant admits the factum of tenancy. He has argued that the denial of the relationship of the C.L.R. landlord and the tenant amounts to challenge the jurisdiction of the learned Rent Controller and the order for deposit of rent under Section 13(6) of the West Pakistan Rent Restriction Ordinance, 1959, without deciding the question of jurisdiction is illegal. Adds that, the learned Rent Controller was bound to first determine whether the respondent was tenant under the applicant. Learned counsel in support of his contentions has referred to the following case-law:--
(1) Muhammad Ismaeel Vs. Muhammad Ayyub and 4 others (2004 YLR 1140).
(2) Mst. Razia Begum Vs. Senior Civil Judge, Charsadda and 2 others (PLD 1996 Pesh. 8).
(3) Ghulam Hussain Vs. Abdur Rehman and 2 others (PLD 1982 Lah. 519).
(4) M. Imamuddin Vs. Mst. Surriya Khanum (PLD 1991 SC 317).
(5) Abdul Khaliq Qureshi Vs. Saeed Hassan Shah and 5 others (1979 CLC 118).
(6) Muhammad Ismail Vs. Lsrar Ahmad (PLD 1991 Lah. 601). .
(7) Waheed-ur-Rehman Vs. Muhammad Ashraf and 2 others (PLD 2001 Pesh. 42).
(8) Tariq All Sheikh Vs. Rent Controller, Lahore and another (1998 CLC 460).
5. Learned counsel for the respondent, on the other hand has argued that denial of the relationship of landlord and tenant was evasive and was not supported by any evidence. Adds that the appellant had urged the denial of the relationship of landlord and tenant on the basis of a mortgage but no mortgage deed was produced in support of the particular claim of the appellant that he has been occupying the premises as a mortgagee for the last 18 years. The learned counsel has further argued that in the absence of any document in support of the contention, the learned Rent Controller was justified in passing the order under Section 13(6) of the West Pakistan Rent Restriction Ordinance VI, 1959. In support of his contentions he has placed reliance on "Ghulam Rasool Vs. Mian Khurshid Ahmad" (2000 SCMR 632). Learned counsel for the respondent has contended that the decision of the Hon'ble Supreme Court has settled the law that a denial without proof, thereof is, if evasive then an order under Section 13(6) can validly be passed.
6. Heard both the learned counsel for the parties and examined the record.
7. The order dated 3.2.2003 passed by the learned Rent Controller is self-contradictory. The learned Rent Controller framed the issue as to the question of existence of relationship of landlord and tenant inter se the parties, which is indicative of the fact that the question of tenancy was yet to be determined. If the issue was framed and the parties were asked to adduce the evidence in support thereto, there was no justification for passing an order under Section 13(6). The law is settled that the order as to the deposit of the Rent under Section 13(6) can only be passed when there is no ambiguity as to the relationship of landlord and tenant. If the learned Rent Controller has considered that the denial of the relationship of landlord and tenant was evasive then there was no occasion to frame the specific issue in this respect. The judgment of Hon'ble Supreme Court referred to, by the respondent do not qualify to the facts and circumstances of the case. The order dated 17.2.2003 for deposit of rent under Section 13(6) is set aside. Consequently the subsequent order dated 31.1.2004 and order dated 23.9.2004 are set aside with the result that the ejectment petition is deemed as pending. The learned Rent Controller is directed to decide the issue regarding relationship of tenant and landlord before 24.3.2005. The parties are directed to appear before the Senior Civil Judge/Rent Controller on 24.2.2005. The ejectment petition was filed in the month of December, 1999 and the controversy has not yet been resolved for one reason or the other. The learned Rent Controller shall proceed on day-to-day basis and decide the matter positively within one month.
8. For what has been discussed above, this appeal is accepted and the case is remanded. .