1. SALMAN ANSARI, J. --- This petition has been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 whereby the petitioner being aggrieved and dissatisfied with the rent order dated 28.3.2006 passed by the IInd Senior Civil Judge, Karachi-East whereby the application under Section 16(1) of the Sindh Rented Premises Ordinance, 1979 in Rent Case No 251 of-2005 was allowed.
2. The petitioner's case is that by an agreement of sale dated 6.3.2004 the ,respondent No. 1 Nafisa Siddiqui on the basis of registered General Power-of-Attorney offered the demised premises for sale and the consideration for the sale was Rs. 18,000,000/- (One crore eighty lac only) and an amount of Rs. 20,00,000/- (Rupees twenty lac only) was paid to the respondent as earnest money through pay order No. 686507, dated 6.3.2004 drawn on Bank Al-Habib Ltd. And a separate receipt thereof was issued by her. Photocopies of the documents have been attached with the petition.
3. It is the contention of the petitioner that the sale transaction was to be finalized within 90 days from the date of signing of the sale agreement and on payment of balance amount. But in spite of repeated demands the sale transaction was not finalized instead the step son and daughter of the respondent No. 1 filed a false suit for cancellation of the sale agreement and obtained a restraining order on 5.5.2004 against Mst. Nafeesa Siddiqui respondent No. 1. .Restraining her from creating any third Party interest in the said property.
4. That the respondent apprehending a suit for specific performance on the basis of a forged tenancy agreement dated 10.3.2004 in respect of a non-existing show room measuring 600 square feet facing main Khalid Bin Waleed Road and in that forged tenancy agreement the amount of Rs.
5. 20,00,000/- paid through pay order as earnest money was shown as security deposit and on the ground of wilful default in the payment of rent for the period of December, 2004 to May, 2005 at the rate of Rs. 50,000/- per month filed an ejectment application under Section 15 of the Sindh Rented Premises Ordinance, 1979 praying for ejectment of the petitioner from the show room.
6. The petitioner filed his written statement, in the written statement where he denied the execution of a tenancy agreement or being in possession of any rented premises being part of the said property and specifically stated that the amount of Rs. 2,000,000/- was paid as earnest money and not as security deposit. That thereafter petitioner/opponent filed an application under Section 19(1) of the Sindh Rented Premises Ordinance, 1979 denied the relationship of landlord and tenant between the parties, but in the order dated 28.3.2006 the petitioner/opponent was directed to deposit arrears of rent from December, 2004 till March, 2006 at the rate of Rs. 50,000/- per month within one month in the Court and was further directed to deposit future monthly rent at the rate of Rs. 50,000/- per month, in the Court on or before the 10th of every calendar month, hence this petition: Learned counsel for the petitioner argued that the impugned order was without jurisdiction as there was no relationship of landlord and tenant between the parties hence the learned Rent Controller has no jurisdiction in this matter to entertain the rent case filed by the respondent.
7. That the inspection report of the Nazir of the premises in Suit No. 1279 of 2004 filed by the petitioner against the respondent inspection of premises was conducted by the Nazir on 10.5.2000 which report shows that "there was no show room running in any portion of the suit property", the report did not show that the plaintift/petitioner was a tenant in the premises and occupying the same in any capacity whatsoever.
8. That thereafter learned Rent Controller has passed an order on the application of the petitioner/opponent under Section 19(1) read with Section 2(e)(f) of the Sindh Rented Premises Ordinance, 1979 and application under Section 20 of Sindh Rented Premises Ordinance, 1979 for site' inspection and had in his order framed the issue as to whether relationship exists between the parties as landlord and tenant, this order is dated 2.12.2006, hence this petition that as the learned Rent Controller has acted without jurisdiction in passing the impugned order under Section 16(1), Sindh Rented Premises Ordinance, 1979, this petition be allowed as prayed for Learned counsel for the respondents have vehemently opposed the petition which according to them was not maintainable. As no petition would lie from an interlocutory order as passed by the learned Rent Controller under Section 16(1) of the Sindh Rented Premise Ordinance, 1979. The learned counsel has further relied upon PLD 1991 SC 242 - Iqbal and .Others v. Mst. Rabia Bibi and others, it was held that the ejectment application could not be stayed or stalled on a plea that tenant in possession was holding agreement to sell. Pendency of a suit for specific performance of agreement would also be no ground to avoid eviction of tenant by Rent Controller PLD 1999 SC 1101 - Haji Juma Khan v. Haji Zarina Khan -- Relationship of landlord and tenant was denied by tenant on the ground of landlord having executed agreement to sell the premises to the tenant and a substantial amount has had been paid to the landlord and final transfer was to be effected it was held till the time the tenant was able to establish his claim for specific performance on the basis of alleged sale agreement the landlord would continue to enjoy the status of being owner and landlord of the premises. Learned counsel also relied upon 1989 SCM R 912 - Nazir Ahmed v. Mst.
9. Sardar Bibi and others, 1989 CLC 1441 (Karachi) - Abdul Ghaffar v. Abdul Wahab, 1995 M LD 1460 - Baboo Din v. Nasroo.
10. The learned counsel for the respondent has concluded his arguments on the note that the petition is liable to be dismissed in limine.
11. Having heard the arguments of the learned counsel for the petitioner and learned counsel for the respondent in this case after the order under Section 16(1) of the Sindh Rented Premises Ordinance, 1979, the learned Rent Controller in his order dated 2.12.2006 decided that:- "Under the law parties are directed to produce/lead the evidence orally or documentary on the following point to prove their contention."
12. "Whether the relationship has exist between the parties as landlord and tenant or not."
13. Hence the order under Section 16(1) in any opinion could not be implemented unless this Issue was decided as considering the Inspection Report of the Nazir conducted in Suit No. 1279/2004 copy of which has been produced alongwith petition shows:- "At the time of inspection (i.e. 9.5.2006) there is no Show Room running in any portion of the suit property." "Photographs also attached with this report.'
14. That in my opinion and this with all due deference to the case-law cited in this case unless and until the Issue of the relationship of landlord and tenant is established no order under Section 16(1) of the Sindh Rented Premises Ordinance, 1979 can be passed directing the petitioner/opponent to pay any, arrears of rent or future rent of the said premises. Reference is invited in NLR 1990 AC 209 Miraz Shamsul Arfin v. Mst. Abida "Stay of execution in appeal against eviction order can be granted in a case where Rent Controller assumes jurisdiction without deciding preliminary objection to his jurisdiction. Bar against stay of dxecution contemplated by S. 21 would not apply to such case."
15. "Rent Controller is under duty to decide first preliminary objection to his jurisdiction before passing order under Section 16(1). Eviction order by striking of defence under Section 16(2) for non- compliance of 'order under Section 16(1) passed without first deciding preliminary objection to jurisdiction of Rent Controller set aside as not sustainable-.'
16. "Objection to jurisdiction should be decided first before passing any order touching merits of case or affecting rights of a party raising objection to jurisdiction of Court."
17. That in view of the above citation, until and unless it is decided that the relationship between the landlord and tenant exists the petitioner in my opinion would have to bear the brunt of the order of the Rent Controller under Section 16(1), S.R.P.O., .1979 and would have to pay a huge amount as monthly rent, hence it is imperative that this Issue be decided prior to passing of the order under Section 16(1) of the Sindh Rented Premises Ordinance, 1979.
18. Hence in my opinion the order of the Rent Controller under Section 16(1) of the Sindh Rented Premises Ordinance, 1979 dated 28.3.2006 is without jurisdiction and its implementation would be unlawful till such time the Issue of landlord and tenant is resolved by the learned Rent Controller.
19. That as the order under Section 16(1) of the Sindh Rented Premises Ordinance, 1979 under the circumstances being without jurisdiction this Court can interfere under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
20. May above,findings are with all due deference to the findings of the superior Court as given in the citations relied upon by the learned counsel for the respondents the findings in my most humble opinion would be apply under the circumstances on the facts of the present case where there is every likelihood from the record produced and the documents put forth by the learned counsel for the petitioner that there is no such relationship of landlord and tenant between the parties and the proceedings before the learned Rent Controller were initiated as alleged on the basis of a forged rent agreement.
21. The above findings should not in any way prejudice the proceedings before the learned Rent Controller who is at liberty to record evidence and decide the Issue as framed by him by his order dated 2.12.2006.
22. This petition stands disposed Of accordingly alongwith the listed applications. .