1. The appellant in this case has been ordered to be evicted from the premises on the ground of default by the Rent Controller after holding that relationship of landlord and tenant exists between the parties, and the decision of Rent Controller has been confirmed in appeal by the First Appellate Authority.
2. Mr. Abdullah Chandio, the learned counsel for the appellant conten--ded before me that order of ejectment passed against the appellant on the ground of default is not sustainable in law in as much as no enquiry on .The issue of default was made by the Rent Controller or by the First Appellate Authority and the order of ejectment was passed on the basis of the finding of the Rent Controller on the preliminary issue regarding existence of relationship of landlord and tenant between the parties. It is ,urged by the learned counsel that it was not one of those cases where there was complete denial of tenancy. By the appellant or there was admission by the tenant that no rent at all was paid to the landlord on the basis of denial of tenancy. It is contended that the appellant had in fact raised the alternate plea of payment of rent in the written statement and therefore it was necessary for the Rent Controller to hold enquiry on the allegation of default before ordering ejectment of appellant on that ground. Mr. Rizvi, the learned counsel for the respondent on the other band contended that the appellant on his own showing paid no rent after the alleged sale of the property by respondent to him and therefore it was not necessary for the Controller to hold any further enquiry regarding default in the case. The ejectment application was filed on the sole ground of default which was alleged in the application in paragraph 2 as follows :- "The opponent has failed to pay rent of premises since April, 1973 and has committed default."
3. "2. That the contents of the para No. 2, are false and hence are denied. It is submitted that when the Applicant without the know--ledge and notice of the opponent occupied -the portion of the premises which was given to the opponent on rent and after raising construction when the Applicant handed over the said portion to one Mr. Aziz alias Sabir Hussain the opponent raised objections whereafter threats were advanced by the Applicants to throw out the opponent's luggage out of the premises started playing tricks for harrassing the opponent by one or the other means. Firstly the Applicant started avoiding to recover the rent in time and then on 23rd December, 1972, sent a legal notice to the opponent to which a reply was sent on 11th January, 1973 by the counsel of the opponent and besides it the opponent started paying rents through Money orders some of which has been received and some have been refused. (Copies of the notices exchanged are enclosed and marked as Annexures `A' and 'B')."
4. The tenancy in this case initially started under a written agreement dated 10th September, 1968, photostat whereof was produced before the Rent Controller along with ejectment case and both the learned counsel appearing before me admit the same. In the agreement of tenancy the rent payable in respect of the premises is stated to be Rs. 170 per month. The ejectment application was filed on 15th September, 1973 and there--fore at that time the rent for the period from February to August, 1973 was due and payable. In view of the fact that the. Appellant in his written statement had alleged that the respondent had agreed to sell the property in May, 1973 and had received a sum of Rs. 2000 towards the part payment of sale consideration and therefore the relationship of landlord and tenant between them came to an end, the Rent Controller framed the preliminary issue with regard to the existence of relationship of landlord and tenant between the parties and directed the appellant to lead evidence thereon. After recording evidence of the parties the Rent Controller by his order dated 15th September, 1975 came to the conclusion that there exists relationship of landlord and tenant between the parties and he accordingly fixed the case for passing of a tentative rent order under section 13 (6) of the Ordinance on 26th September, 1975. On this date before the tenta--tive-rent order could be passed by the Rent Controller the respondent filed an application under section 151, C. P. C. Praying that in view of the findings of the Controller that the relationship of landlord and tenant exists between the parties, an order of ejectment be passed against the appellant without taking further proceeding in the case. This application was heard by the Controller on 25th November, 1975 and on the same day without holding any further enquiry in the case and without even holding that default in payment of rent is proved he passed the order of ejectment against the appellant relying on the case of Nisar Ahmed v. Nazar Mohammad (PLD 1974 Lah.'48). The appellant then filed appeal against the above order of Rent Controller which was dismissed and the decision of Rent Control--ler was confirmed by the Appellate Authority. Both the Courts below in ordering ejectment of appellant referred to Nisar Ahmad's case. In Nisar Ahmad's case relied upon by the Courts below it was found by the learned Single Judge that the appellant had admitted that he never paid a single peny towards rent to the landlord as he did not accept him as his landlord and therefore it was held that in such circum-- stances the sending back of the case to the Rent Controller for passing a tentative rent order and determination of plea of default was an exercise in futility and therefore order of ejectment passed by the lower Court against the tenant was maintained. Mr. S. H. Rizvi, the learned counsel for the respondent contended before me that in view of the averment contained in paragraph 3 of the written statement filed on behalf of the appellant it was quite unnecessary in this case also to hold any further enquiry with regard to the plea of default as the appellant himself admitted that after May, 1973 no rent was paid or tendered by him to the respon--dent in view of the alleged agreement of sale which he failed to prove. The learned counsel accordingly contended that the rule in Nisar Ahmad's case was fully attracted in this case also. To re-enforce his contention Mr. Rizvi also referred to the cases of Malik Chiragh Din v. Shaikh Rafiuddin (1 98 1 0 Law Notes SC 385), Manzoor Ahmed v. Fatima Bibi (1980 SCMR 756), Amanullah Khan v. Chottey Khan (1978 SC M .R 14) and Abdul Rashid v. Mohammad Akhtar (1980 C 1. C 1141), I will here first of all refer to Amanullah Khan's case where the Supreme Court noticed the divergence of between the learned Judges of the High Court on the point that in cases where the tenant denies existance of relatioiship of landlord and tenant between the parties which is found to exist by the Rent Controller, should straight away pass order of eviction in such cases against the tenant or hold further enquiry into the allegation of default against him. In this connection cases of Mohammad Hussain v.
5. Mohammad Bashir (PLD 1974 Lah. 447), Nisar Ahmed v. Nazar Mohammad (PLD 1974 Lah. 489), and Noorud--din v. Muirammad Qasim (PLD 1976 Kar. 921), were referred by the Supreme Court in the judgment but that case was decided on its own fact without resolving the above conflict' of opinion. In Manzoor Ahmad's case the tenant was found to be an admitted defaulter in payment of rent and therefore, it was not considered a fit case by: the Court for grant of leave to appeal against the order of eviction passed straight away*after finding the relationship of landlord and tenant between the parties existing. Similarly in. The case of Mohammad Yousuf it was found that the petitioner tenant had not made any specific and pointed denial of the default alleged against him and made basis of eviction, and accordingly order of eviction passed against him straight away for default in payment of rent after relationship of landlord and tenant found to exist between the parties, was maintained and leave to appeal was refused.
6. On a careful examination of the cases cited before me at the bar I am of the view that a Controller will be justified in passing an order for eviction against a tenant without holding any further enquiry into the case, if the application was filed against him on the ground of non-payment of rent only which the tenant had either admitted or failed to deny specifically and pointedly and had further denied the relation--ship of landlord and tenant between the parties which the Rent Controller found to exist. But where the tenant while denying the title of landlord or existence of relationship of landlord and tenant between the parties also pleaded that he bad either paid or tendered the rent to the landlord or had urged grounds justifying the default (other than the ground of non-existence of relationship of landlord and tenant between the parties) then an enquiry has to be held by the Rent Controller into the allegation of default before ordering his ejectment, even if the Rent Controller finds that the denial of relationship of landlord and tenant between the parties by him was not correct. For, in my view section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 does not contemplate passing of an eviction order against a tenant barely on the ground of denial of title of his landlord by him and therefore where the Rent Controller is induced to pass an order of eviction against a tenant on the ground of denial of title of landlord by him he has to hold him a defaulter payment of rent as well to justify the order of eviction. In so far the cases of ejectment instituted by a landlord on grounds other than non-payment of rent under section 13 of the Ordinance are concerned, in my humble view no order of eviction can be passed against the tenant on the ground of denial of title of landlord and enquiry has to be held by the Controller on the allegation made against the tenant in the ejectment application before passing an order of eviction. In the case before me in reply to paragraph 2 of the ejectment application which contained the allegations of default against the appellant, he specifically denied the default and advanced the plea that he ten--dered the rent by money order which was on some occasion accepted while on the other it was refused by the landlord. It is also admitted before me that at the commencement of tenancy which is a written one in this case the landlord had taken a sum of Rs.
7. 350, as a "deposit." It is also not disputed that the initial agreement of tenancy between the parties was for 11 months and after its expiry it was not renewed for any further period after its expiry. In the case of Muhammad Yousuf v. Abdullah (PLD 1980 SC 298) it has been held by the Supreme Court that where the tenancy was for a specific period which was not renewed after the expiry of the period, the tenancy in such cases is to be governed under the Statute after expiry of the period of lease and any "deposit" accepted by the landlord under the agreement is to be either refunded to the tenant or adjusted against the rent dues after expiry of such period. In the case before me the tenancy agreement between the parties provided in paragraph 5 that the amount of Rs. 350, received by the landlord will become refund--able to the lessee at the time of expiry and handing over of the quite and peaceful possession of the premises to the landlord who shall be entitled to adjust the dues from the said amount and. Refund the balance to the Lessee. In these circumstances, the present case was not such where the default was either admitted by the tenant or moved against him which could entitle the Rent Controller to pass an order of eviction against the tenant straightaway, after holding that the relationship of landlord and tenant existed between the parties.
8. I accordingly accept this appeal, set aside the orders of the Courts below and remand the case back to the Rent Controller for passing a tentative rent order in the case and for taking further proceeding in accordance with the law. Since the ejectment application was instituted as far back as in 1973 on the sole allegation of default in payment of rent I direct that the Rent Controller shall after passing the tentative rent order in the case make efforts to dispose of the case within 6 months thereafter. In the circumstances of the case there will be no order as to costs.