' Respondent No, 3 instituted an application for ejectment of the petitioner from House No, 5, Block Y, Street D, built upon a piece of land measuring 5 marlas, situated, in New Multan, claiming himself to be landlord and the petitioner a tenant under him. He claimed that rent at the rate of Rs, 6,500/- per month was fixed and the tenant had been paying the same since November, 2008, but he failed to make payment of the same from April, 2009 till the institution of the ejectment petition on 31.05.2010. He, therefore, sought eviction of the petitioner on the ground of default in payment of rent, damage caused to the demised premises and that he required the demised, premises for his personal bona fide need. The petitioner submitted application for leave to defend on the ground that relationship of landlord and tenant did not exist between the parties, rather, the respondent had sold the said house to him through an agreement to sell and that he had instituted a suit for specific performance of agreement to sell, which was pending in the Court of learned Civil Judge, Multan. He further maintained that he never made payment of any amount of rent to the Respondent No,
3. The learned Special Judge (Rent), vide order dated 24.07.2010, dismissed, the application for leave to defend and simultaneously, passed order for eviction of the petitioner from the demised house within a period of 30 days. The petitioner assailed the said order through filing an appeal before the learned DJ, which was decided by a learned Additional District Judge, Multan vide judgment dated.
22.10.2010 and the appeal was dismissed, hence, this petition.
2. Learned counsel for petitioner has argued that both the Courts below have committed illegality by considering the petitioner a tenant under the respondent, although, there was no material available before them to hold so and that in the peculiar circumstances of the case, it was incumbent upon the learned Special Judge (Rent) to frame issue regarding existence of relationship of landlord and tenant and then to decide the matter.
3. Heard.
4. It appears, from the perusal of the contents of application for Leave to Defend, filed by the petitioner that in the said, application he categorically denied the relationship of landlord and tenant between the parties. Since there was no written tenancy agreement and relationship of landlord and tenant had been denied by the petitioner, it was incumbent upon the learned Special Judge (Rent) to allow the application for leave to defend and frame an issue regarding existence of the said relationship between the parties and then to decide the application for ejectment after recording evidence of both the parties. The following observation of the learned Special Judge
(Rent) made by him in the impugned judgment appears to be patently illegal and uncalled for: "Respondent failed to show any title document to counter the ownership of petitioner, hence, by denying the landlord-ship of petitioner, respondent disqualified himself from any discretionary relief."
' The fact of the matter is that it was respondent i,e, landlord who had come forward to seek eviction of the petitioner, the alleged tenant, hence, it was for him to establish the relationship of landlord and tenant between them and since there was no document regarding tenancy between the parties, and the petitioner had denied having been inducted in the disputed house as a tenant, the learned Special Judge (Rent) was obliged to grant leave to defend, frame relevant issue, record evidence of the parties and then to arrive at a correct conclusion.
5. The learned first appellate Court has also committed a patent illegality while passing the impugned judgment, wherein he has observed as under: "There was no need to hold further proceedings under that application especially when the appellant/respondent had straight away admitted existence of tenancy agreement and claimed right of ownership."
6. Having carefully scanned the material available on record, it is observed that no such admission is available on record on the part of the petitioner nor has he admitted being a tenant under the respondent. This being so, the above observation of the learned first appellate Court is based upon mis-reading and mis-construction of the pleadings of the parties.
7. As a sequel to the above discussion, the impugned judgment passed by the learned first appellate Court dated 22.10.2010, and the order passed by the learned Special Judge (Rent) dated 24.07.2010, are not tenable under the law and the same are held to have been passed by them under clear violation of law on the subject and without any lawful authority. Hence, while accepting the instant petition, the same are set aside. The application for leave to defend is hereby allowed and the matter is remanded to the learned Special Judge (Rent). The application for ejectment shall be deemed to be pending before the learned Special Judge (Rent), who shall frame appropriate issue regarding existence of relationship of landlord and tenant between the parties and then to decide the same within the time frame given under the Punjab Rented Premises Act, 2009.
8. Parties shall appear before the learned Special Judge (Rent) on 27.02.2014.
'There is no order as to costs.