' SH. AZMAT SAEED, J.---This constitutional petition is directed against the appellant order dated 10- 1-2009 whereby the appeal filed by the petitioner against the ejectment order dated 20-7-2005 was dismissed.
2. Brief facts leading to the filing of this constitutional petition are that respondent No,1 claiming to be the landlord A of premises in dispute filed an ejectment petition against the present petitioner.
The said ejectment petition was resisted and the petitioner took up the defence that no relationship of landlord and tenant existed between the parties. On the divergent pleadings of the parties, an issue was framed qua the existence or otherwise of the relationship between landlord and tenant. The only other issue framed was with respect to relief. Evidence was led, whereafter the Rent Controller accepted the A ejectment petition directing the ejectment of the petitioner and further ordered that the rent be paid from January, 2003 till the vacant possession is handed over by the petitioner to respondent No,1. Aggrieved, the petitioner filed an appeal which failed to find favour and was dismissed, vide the appellate order dated 10-1-2009, impugned through this constitutional petition.
3. The learned counsel for the parties have been heard and record perused.
4. At the very outset, the learned counsel for the petitioner has stated that respondent No,1 has taken over the possession of the premises in dispute and he is not seeking reversal of the order of ejectment. The only grievance raised is with reference to the direction to pay rent. It is contended by the learned counsel for the petitioner that no issue qua default in B payment of rent was framed, hence in the facts and circumstances of the case no order for payment of rent could be passed along with the ejectment order. In support of his contention, the learned counsel has relied upon a judgment of this Court reported as: Zafar Abbas v. The State (2001 M LD 852). The learned counsel for respondent No,1 has controverted the contentions raised on behalf of the petitioner.
5. In the instant case, admittedly no issue regarding default in payment of rent C was framed or could have been framed, as relationship of landlord and tenant was denied. The parties were not put to notice that evidence qua the rate of rent and nonpayment thereof was to be adjudicated upon c by the Rent Controller. In similar situation, this Court in the aforesaid judgment, relied upon by the learned counsel for the petitioner, has held as follows:- "A perusal of issues referred above reveals that no issue regarding default on the part of tenant/ petitioner has been framed and rightly so as the relationship of landlord and tenant was being denied by the tenant/petitioner. This being the factual position even if it is assumed for the sake of argument that tenant/petitioner had not paid the rent for the period mentioned in the order, dated 5-5-2000, no order for its recovery could be passed by the Rent Controller and the only remedy available to the landlord/respondent No,3 was to file a suit for its recovery."
6. The learned counsel for respondent No,1 has been unable to distinguish the aforesaid judgment, which appears to be applicable to the facts of this case. He has also filed to produce any judgment to the contrary.
7. In this view of the matter, this Court has no option but to accept this constitutional petition.
Consequently, this petition is accepted and the impugned D orders to the extent that these hold the petitioner liable to pay rent, are set aside. Respondent No,1 may seek his remedy, if any, under the law.