The appellant above named, being aggrieved by order dated 9 March, 1981 of the learned Xth Senior Civil Judge and Rent Controller, Karachi, passed in rent application No. 2270/77, has preferred this appeal, on the following facts and grounds :-
2. That on 24th July, 1977, the Respondent filed ejectment case against the Appellant, on the ground of default in payment of rent in respect of open space and a small shed situated on plot No. B-4 Commercial Area, Liaquatabad, Karachi and claimed the rent at Rs. 600 p.m. From September, 1974. The Respondent in his eviction application stated, that the appellant unauthorisedly occupied the shed and open space in rainy season, and on respondent's objection, the appellant agreed to pay rent from 1st September, 1974 at Rs. 600 p.m. Which he failed to pay.
3. That the appellant in his written statement denied the relationship of landlord and tenant and submitted, that he is tenant of shop premises at Rs. 125 p.m. And paid the rent upto September, 1977, and deposited out to date rent in Court the appellant submitted, that Syed Muhammad Hassan Qadri alias Mujabid Hussain is the tenant of above premises and Mujtahid Hussain paid the rent upto 31st August, 1977, for which the respondent did not issue rent receipts. The electric meter is also in the name of Mujtahid Hussain. This Mujtahid Hussain filed application for deposit of rent, vide Rent Case No. 3052/77. The Controller allowed the application and Mujtahid Hussain deposited rent on 25th September, 1977, 14th November 1977 and 10th January, 1978. But on objection by the Respondent, the Controller dismissed the application by order dated 31st January, 1978. Mujtahid Hussain filed appeal No.98/76 against that order, but it was dismissed by the VIIth Additional District Judge, Karachi, on 13th October, 1980, but the learned Judge observed, that Mujtahid Hussain may become party in Rent Case No. 2270/77.th
4. That Mujtahid Hussain on 7th January, 1981, filed an application under section 1, rule 10. C. P. C. For being impleaded as opponent in the above Rent Case, but the learned Rent Controller and 10th Senior Civil Judge, Karachi, by order dated 4th February, 1981, dismissed said application.
5. That on 13th October, 1977, the Controller without framing preliminary issue, about relationship of landlord and tenant between appellant and respondent and without recording any evidence, determined the relationship and held appellant to be tenant, on the basis of P. T. I. On 16th October, 1977, the appellant filed application for review of order dated 13th October, 1977, as in P. T.
1. Name of appellant appears as tenant of one shop and it has nothing to do with the tenancy of open space and shed, of which Mujtahid Hussain is tenant.
6. That on 21st October, 1977, the 11 Rent Controller, Karachi (Mr. Shah Nawaz Awan) passed the rent order directing the appellant to deposit rent for the month of October, 1977, before 15th of November, at Rs. 125 pm. And continue to deposit the rent before the 15th of each month.
7. That in 1979 the respondent filed an application for review of order dated 21st October, 1977 and the Controller by order dated 19th May, 1979, set aside the rent o; de: dated 214t October, 1977, on the ground that 21st October, 1977, was holiday (Friday),
8. That on 25th July, 1979, the Controller passed another tentative rent order and ordered the appellant to deposit arrears of rent Rs. 44,800 from September, 1974 to June, 1979, at Rs. 600 p.m.
And continue to deposit cent. Before the 15th of each month. Later on the amount of Rs. :14,0'04.1 ;vas corrected as Rs. 34,800 by order dated 29th October, 1979.
9. That on 12th August, 1979 the appellant filed application for review of order dated 25th July, 1979.
The Controller by order dated 29th October, 1979, dismissed the said application.
10. That the ,Respondent filed an application for striking of defence of appellant and the Controller on 13th May, 1980 ordered, that application for review dated 16th October, 1977 would be heard again and that order on application for striking of defence would be passed, after passing order on application dated 16th October, 1977.
11. That on 8th ?March, 1980 the Rent Controller passed a consent order, whereby all pending applications were to be disposed of at final stage, after evidence and the case was adjourned to 20th March, 1980 for evidence. This order :vas confirmed by order on diary sheet dated 20th h- larch, 1980 and 17th April, 1981.
12. That the Rent Controller in violation of the above consent order, heard the application for striking of defence, before disposing of other applications and before recording evidence.
13. That the Controller by order dated 9th. March, 1981 struck of defence of appellant anal dismissed appellant's review application and hence this appeal.
14. The appellant above named being aggrieved by order dated 9 March, 1981, of the learned Rent Controller, has preferred this appeal, on the grounds mentioned in memo of above appeal.
15. The learned Advocate for the appellant submitted that the order dated 9th March, 1981 of the learned Rent Controller is liable to be set aside, on the following grounds :-
(a) That review order dated 19th May, 1979, passed by. Learned !Tent Controller, by which he set aside original tentative rent order dated 21st October, 1977, and passed fresh tenative order, for depositing rent is illegal prima facie, as no powers of review are vested in the learned Rent Controls-.
(b) That order dated 9th March, 1981, under section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, was passed in violation of consent order dlatec8th March, 1980, by which ail pending applications including one under section 13 !6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, were to be disposed of, after recording of evidence, at final stage, and without considering the objections filed by the appellant.
(c) That second tenative order dated 25th July, 1979 has been passed without framing of preliminary issue regarding relationship of landlord and tenant, is bad and liable to be set aside, onth this ground alone.
16. In view of above objections, appellant's defence cannot be struck of, for non-compliance of impugned order dated 25th July, 1979.
17. The learned Advocate for the Respondent on the other hand submitted, that rent order dated 20th October, 1977, was passed on Friday and as such was void ab initio and secondly the same was set aside by consent order dated 18th December, 1978, passed in Appeal No. 189;'78 and as such fresh order dated 25th July, 1979, is valid and legal The learned Advocate further submitted, that consent order dated 80 March 1980 was passed before filing of application under section 13
(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 and as such it does not govern respondent's application for 'striking of defence of the appellant. As far as the last contention of the learned Advocate for the appellant is concerned, the learned Advocate for the respondent submitted, that this issue was decided before passing of order dated 21st October, 1977, and as such it cannot be re-opened now. In any case appellant now does not dispute the relationship of landlord and tenant as per statement of his learned Advocate, before this Court.
18. 1 have carefully considered the above submissions made by the learned Advocates for the parties and have carefully gone through the various orders hereinbefore mentioned as well as through the diary sheet of the learned React Controller.
19. The main question which requires consideration is, Whether order dated 21st October, 1979, was set aside by Appellate Court in Appeal No. 189/78, by order dated 18th December, 1978, or by order dated 19th May, 1.979 of the learned Rent Controller on review of the matter, on the basis of reasons given in the said order. In case it is held, that tentative rent order dated 21st October, 1,977, was not set aside by consent order dated 18th December, 1978, passed in Appeal No. 189/78, then whether the learned Rent Controller had powers to review said order dated 21st October, 1977, as he has done., vide order dated 19th May, 1979.
20. I have gone through the memo. Of appeal No. 189/78 and consent order dated 18th December, 1978, passed in the said appeal. In my opinion, by consent order dated 18th December, 1978, respondent's, ejectment application, which was dismissed for default was only restored. No other interpretation of the said consent order dated 18th December, 1978, is possible from the wording of the said order, in my opinion. In vie%% of this conclusion of mine, the only question which requires consideration is, whether the learned Rent Controller was competent to review order dated 21st October, 1977, under the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959.
Obviously there is no power of review vested in the learned Rent Controller, under the provisions of West Pakistan Urban Rent Restriction Ordinance, 19 59. The learned Advocate for the Respondent was unable to point out any law to support such powers being available to the learned Rent Controller. It may also be noted, that prima facie order dated 21October, 1977, was passed on Friday which was closed holiday, and there is nothing on record to show how such order was passed on closed holiday and parties were present. It is also now clear that rent of R5 125 is for shop in occupation of the appellant, which is not the subject matter of the eject--ment application in question. Appellant in his own written statement has clearly mentioned, that the rent of the disputed premises is Rs. 300 per month, but had then stated, that the premises were in occupation of his son-in-law, but now he admits himself to be the tenant of the disputed premises.
21. Keeping in view the above factual and legal position and in the interest of justice, I allow the above appeal and set aside impugned order dated 9th March, 1981, under section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, by which appellant's defence was struck of as well as tentative rent orders dated 21st October, 1977 and 25th July, 1979, and remand back the case to the learned Rent Controller to pass fresh tentative rent order, in respect of disputed premises, after affording opportunities to both the parties to lead evidence which they may like to lead, about quantum of rent and period of arrears, within one month from receipt of the R and P ofst the case and then to dispose of the ejectment application of Respondent on merits, within three months thereafter, as the mother has been pending since 1977. 1 also dismiss ail the pending applications made by both the parties, as they have become infructuous, in view of my, above order.
22. The above appeal is disposed of in terms of the above order, with no orders as to costs.