The Appellant abovenamed, being aggrieved by order dated 22nd day of September, 1977 of Summary Military Court-A, purporting to be under M. L. O. 20, by which, the appellant was directed to vacate the premises in his occupation, has preferred this appeal on the following facts and grounds;
2. The respondent No. 3 is the owner of a bungalow bearing No. 81-A, Sindhi Muslim Housing Society, Karachi, in which the appellant claims to be the tenant, in respect of ground floor of the said bungalow, at agreed rent of Rs. 700 per month since 5-10, 1974. According to the appellant, the respondent No. 3, after having inducted the appellant as the tenant of the ground floor of the said bungalow, left for United Kingdom and returned back in the first quarter of 1976. According to the appellant respondent No. 3 on her return from United Kingdom started coercing the appellant to vacate the premises in his occupation and as respondent No. 3 is influen--tial person, she ultimately approached Superintendent of Police, Central Division, Karachi, on the allegation that the appellant was not a nant but a trespasser and consequently the said Superintendent of Police, being under the influence of respondent No. 3 ordered the appellant to vacate the premises in his occupation by 13th August, 1976. The appellant appre--hending his forcible ejectment by respondent No. 3, with the help of the Police, filed suit No. 1555 of 1976, in the Court of XII Civil Judge, 11 Class, Karachi for declaration, that the appellant was tenant in respect of the ground floor of the said bungalow and in the said suit appellant prayed for injunc--tion restraining the respondent No. 3 from dispossessing the appellant from the premises in question, otherwise then in due course of law. In the said suit appellant had filed an application under Order XXXIX, rules 1 & 2, C. P. C. And had obtained an ad interim injunction vide order dated 24th August, 1976. In the said suit, respondent No. 3 filed her written statement, in which she denied that appellant was her tenant and submitted that the appellant was a caretaker and/or was a tress-passer. The said suit is still pending for final disposal.
3. According to the appellant while the above-mentioned Civil Suit filed by him was still pending for final disposal, the Martial Law Order No. 20 was promulgated and the respondent No. 3 moved an application before the Summary Military Court-A. For ejectment of the appellant and consequently the appellant received notice from respondent No. 2 for appear--ance before him on 5-9-1977. The copy of the respondent No. 3's applica--tion moved before respondent No. 2 is attached and annexed to the above appeal as Annexure D. The appellant appeared before respondent No. 2 on 5-9-1977, and he was directed by the respondent No. 2 to settle the matter with respondent No. 3 and the case was adjourned to 20th September, 1977. No compromise was reached between the parties and consequently the appellant appeared before respondent No. 2 on 20th September, 19 7 7, when he was directed to produce evidence with regard to the pendency of the afore--said Civil Suit filed by him and the case was adjourned to 22nd September, 1977. On 22nd September, 1977, the appellant appeared before respondent No. 2 and filed certified copy of the diary sheet of the said suit dated 4-9-1977, showing that the suit was adjourned to 25th ,September, 1977. The respondent No. 2 after having perused the said certified copy of the diary sheet, returned the same to the appellant and started recording state--ment of the son of the respondent No. 3, in the said proceedings before him, according to the appellant. According 'to, the appellant the son of the respondent No. 3, in his statement before respondent No. 2, stated, that appellant was a trespasser and not a tenant. According to the appellant, after recording of the evidence of the son of the respondent No. 3, respon--dent No. 2, ordered the appellant to vacate the premises in his occupation by 10-10-1977, vide his order dated 22nd September, 1977, the copy of which is annexed to the above appeal as Annexure E.
4. That the appellant filed a revision application on 25th September, 1977, before respondent No. 1 under para. 8 of the said M. L. O. 20, but the same was not fixed for hearing till filing of Const. Petition No. D-619 of 1977 by the appellant, which was later on treated as appeal and numbered as F. R. A.
114 of 1981, in view of the Military Court (Validation of Orders) Ordinance, 1980, section 2(2).
5. The appellant above named has challenged the order dated 22-9-1977, of respondent No. 2 on various grounds as mentioned in above appeal. However the only ground that has been pressed and urged before me was, that the order dated 22nd September, 1977 is neither under M. L. O. 20 nor it could be considered as order under the provisions of Sind Rented Premises Ordinance, 1979, in view of the stand taken by respondent No. 3 in her application dated 17th August, 1977, addressed to the Headquarter M. L. O. Zone `C' which is Annexure C, in which she has categorically denied relationship of a tenant and landlord between herself and the appellant. In view of this the learned Advocate for the appellant submitted, that the pro--visions of M. L. O. 20 were not at all attracted and as such the cognizance taken by respondent No. 2 on the application of respondent No. 3 and consequential order dated 22nd September, 1977 are without jurisdiction and lawful authority. The learned Advocate further urged that if his contention finds favour with this Court, then the appellant will be entitled to restoration of possession of the premises in question, as the appellant was deprived of the possession of the premises in question, in view of the said order dated 22nd September, 1977 of respondent No. 2, under the provisions of section 144, C. P. C.
6. The learned Advocate for the respondent at the very outset conceded that the order dated 22nd September, 1977 of respondent No. 2 could not be considered as an order under M. L. O. 20, as the said M. L. O. Was only applicable to disputes between the tenant and the landlord and in the instant case, respondent No. 3 right from the very beginning has denied relationship of tenant and landlord between the parties and as such he has no objection, if the said order dated 22nd September, 1977 of respondent No. 2 is declared without jurisdiction and set aside. However, the learned Advocate for the respondent submitted, that the request of the learned Advocate for the appellant for restoration of possession of the premises in question to him, under the provisions of section 144, C. P. C., cannot be allowed, as the said provisions would come into operation only, if the appellant had been ejected in pursuance of the order, which is being set aside by the Appellate Court. In the present case the learned Advocate for the respondent pointed out, that in the counter-affidavit filed by the respondent No. 3 on 30th April, 1979 in para. 3:11 respondent No. 3 had stated on oath, that the appellant on or about 8th October, 1977 secretly and without informingthe respondent No. 3 had voluntarily vacated the said premises and thereafter filed the Const. Petition before thisCourt, which has now been converted into appeal. The learned Advocate for the respondent submitted that appellant did not file any affidavit in rejoinder to this counter-affidavit dated 30th April, 1979 of the respondent No. 3 and as such the averments made by the respondent No. 3 in her said counter affidavit dated 30th April, 1979 in respect of para. No. 3.-11 remained unchallenged and as such this request of the learned Advocate for the appellant cannot be granted under section 144, C. P. C.
7. I have carefully considered the above submission made by the learned counsels of the parties and have carefully studied the provisions of M.L.O.
20. The para. 2 of M. L. O. 20 read as under :-
2. "A dispute, as .Is referred to them by Martial Law Administrator under the Sind Urban Rent Restriction Ordinance, 1959, and the Cantonments Rent Restriction Ordinance, 1965, between the tenant and landlord of a building situated in Karachi and Hyderabad -in the following cases shall be decided by the Summary Military Courts especially empowered in this behalf etc. Etc."
8. The above wording of para. 2 of M. L. O. 20 clearly shows, that in order that the provisions of M. L.
O. 20 could be availed of in respect 01n dispute, there ought to be a relationship of tenant and landlord between the parties. In view of this the contention of the learned Advocate for the appellant, that the respondent No. 2 had wrongly assuned jurisdiction on the application of respondent No. 3 which is Annexure C, produced by respondent No. 3 with a list of documents dated 30th April, 1979 has great force and the learned Advocate for the respondent has rightly conceded this legal position. Therefore, I declare, that order dated 22nd September, 1977, passed by respondent No. 2 being passed without lawful authority and as such set aside the said order being without jurisdiction.
9. The only contention which now remains to be decided in this appeal is whether the application No. 167 of 1978 under sections 144 and 151, C. P. C. Filed by the appellant for restoration of possession can be allowed in view of this judgment of mine, by which. I have declined order dated 22nd September, 1977 of respondent No. 2 as being without lawful authority. The contention of the learned Advocate for the appellant, that he was dispossessed by respondent No. 2 in his 'absence from Karachi, who in return handed over the possession of the premises in question to respondent No. 3 have been disputed by the respondent No. 3 in her counter-affidavit dated 30th April, 1979 in para. 3.-11 to which appellant filed affidavit in rejoinder on 10-2-1981, which he has disputed the said allegations made by the respondent No. 3 in para. 3:11 of the counter-affidavit. This question of fact whether appellant was dispossessed by respondent No. 2 in conse--quences of his order dated 22nd September, 1977, or that the appellant voluntarily vacated the premises in his occupation on or about 8-10-1977. As alleged in para. 3:11 of the counter-affidavit dated 30th April, 1979 of respon-- dent No. 3 cannot be disposed of without recording of evidence of the parties, in this appeal. Even the provision of section 144, C. P. C., clearly shows that application under this section is to be moved before the Court of first instance for such restitution and as such in my opinion, since this request of the appellant would require recording of evidence, the appellant will be, at liberty to move such application for restitution of possession of the premises in question before the Court of learned Rent Controller, within whose area the premises in question are located, as the Court of respondent No. 2 which was established under M. L. O. 25, according to the learned advocates of both the parties, has ceased to function after promulgation of the Military Court (Validation of Orders)
Ordinance, 1980 vide Sind Ordinance No. 1 of 1980 and in view of the provisions of this Ordinance all the orders passed under M. L. O, 20 shall be deemed to have been passed under the Sind Rented Premises Ordinance, 1979 and as such in my opinion the Court of the learned Rent Controller, having jurisdiction over the area in which the premises are situ--ated, will now be deemed to be the Court of first instance as contemplated by section 144, C. P C., as the successor to the Court of respondent No. 2, which was established under M. L. O. 25 and stood dissolved automatically on promulgation of Surd Ordinance No. 1 of 1980. The Misc. Application No. 167 of 1978 in view of my above conclusions is dismissed. However, appellant will be free to move such application before the learned Rent Controller as mentioned hereinbefore.
10. Therefore, in view of my above conclusions the above appeal is allowed and the order dated 22nd September, 1977 of respondent No. 2 is set aside as being without lawful authority and without jurisdiction. In the circumstances of this case I would pass no orders as to costs.