An application was filed by respondent No. 1, Abdur Rehman, for eviction of the petitioner, Ghulam Hussain, from certain premises, on the ground of default and personal need. The application was opposed by the petitioner inter alia on the plea that the Rent Controller, before whom the application was made, had .No jurisdiction to hear it. According to the petitioner, the property in dispute was a factory and was, therefore, not within the purview of the Punjab Urban Rent Restriction Ordinance, 1959, hereinafter referred to as the said Ordinance.
2. On 10th July, 1979, the learned Rent Controller made an order, under the first part of subsection
(6) of section 13 of the said Ordinance, directing the petitioner to deposit arrears of rent as well as future rent. There after, he framed issues arising out of the pleadings of the parties which read as under :-
(1) Whether the Rent Controller lacks jurisdiction in respect of the disputed premises ? O. P. R.
(2) Whether the premises in dispute had been mis-described in the site plan ? O. P. R.
(3) Whether the petitioner requires the disputed premises in good faith for his personal use and occupation ? O. P. A.
(4) Whether the respondent paid or validly tendered rent regarding the period in dispute ?
(5) Relief.
Subsequently, following two additional issues, were also struck :- (5-A) Whether the respondent raised the construction specified in para. 2 of the written statement by consent of the petitioner and incurred an expenditure of Rs. 30,000 thereupon ? O. P. R.
(5-B) If issue No. 5-A is proved whether the respondent is entitled to recover such amount from the petitioner in these proceedings in the event of ejectment ? 0. P. R.
3. The respondent had produced his entire evidence on the above issues. The petitioner examined one witness, in rebuttal whereafter the case was adjourned for the recording of his remaining evidence. The rest of his evidence was yet to be produced by the petitioner when, on 2nd October, 1980, the respondent made an application for striking off the defence of the petitioner. It was pointed out by him that the petitioner had not deposited future rent for some months in terms of the order of the learned Rent Controller. His plea had found favour with the learned Rent Controller.
As a result, he struck off the defence of the petitioner and ordered his eviction. The petitioner took an appeal before an Additional District Judge but in vain. He has, therefore, invoked the constitutional jurisdiction of this Court to assail the orders of the two tribunals below.
4. It was submitted by Mr. Aamer Raza A. Khan, learned counsel for the petitioner, that since the jurisdiction of the learned Rent Controller had been questioned he could not make order for the deposit of rent. The argument proceeds that as his order in this behalf suffered from ,jurisdictional, defect, non-compliance thereof could not be visited with the order of ejectment. For this proposition, he placed reliance on Yousaf Ali v. Muhammad Adam Zia acrd 2 others (1) and Abdul Qayyum v. Muhammad Ishaq (2).
5. Another plea raised by learned counsel for the petitioner was that since the learned Rent Controller was yet to decide the question of jurisdiction, after recording remaining evidence of the petitioner, he bad no authority to pass the order of eviction as done by him. According to the learned counsel, therefore, his order was without lawful authority and was liable to be quashed. He cited Muhammad Ismail v. Israr Ahmad (3), Akhtar Ali Parvez v. Altafur Rehman (4) and Muhammad Zaman v. Taj Rasool (5) to support his contention.
6. On the other hand, it was submitted by Khawaja Muhammad Tufail, learned counsel for the respondent, that no objection was raised by the petitioner when order for the deposit of arrears of rent and future monthly rent was made and, therefore, it was not open to the petitioner to take excep--tion to the above order. It was also urged by him that even in his reply to the application for striking off the defence it was not pleaded by the petitioner that the order for deposit of rent was without jurisdiction. While commenting on the cases of Muhammad Ismail, Akhtar Ali Parvez and Muhammad Zaman, cited by learned counsel for the petitioner, it was argued by learned counsel for the respondent that all those cases related to denial of -relationship of landlord and tenant but since that relationship has not been denied in the instant case, the above cases were distinguishable. He cited Mushtaq Hussain v. Muhammad Shafi (6) to contend that while making an order for deposit of rent only tentative view on the question of jurisdiction is to be taken. In this connection, lot of stress was laid by the learned counsel on the following observation made by the Supreme Court in that case :-
(1) PLD 1958 SC (Pak.) 104 (2) PLD 1967 Lah. 1025
(3) PLD 1961 (W P) Lab. 601 (4) PLD 1968 Kar. 869
(5) PLD 1976 Kai. 292(6) 1979 SCMR 496 "It was conceded by the learned counsel that his client had not complied with the order of the learned Rent Controller and had not deposited the rent as directed, but his argument was, that as his client had in his written statement taken up the plea of adjustment of certain amount spent by him and as even otherwise according to him, no rent was due on his part, therefore, in this state of affairs, the order directing the deposit of rent without first sorting out whether any rent was actually dud from him after accounting for the claimed adjustments ; was not justified. The contention has no merit. The order directing deposit of rent in its very nature under statute aforesaid was based on a tentative view of the case and its obedience could not be shelved on the ground that first a regular finding after recording evidence regarding actual amount due or &bout the amount available for adjustment to the tenant should be given because adoption of that course will tantamount to start a regular trial of the case which is not within the scope of sub. Section (6) of section 13 of the Ordinance, for directing deposit of tentative amount of rent. Actually compliance of that direction is a condition precedent for requiring the Rent Controller to examine the bona fide or correctness of the various defence pleas of the tenant or to further proceed with their trial and adjudication."
The proposition put forth by the learned counsel was that the order for deposit of rant has got' to be made in every case regardless of the fact that the jurisdiction of Rent Controller is challenged. It was, however, conceded by him that such an order cannot be made in case in which relation-- ship of landlord and tenant is denied unless that relationship is established.
7. While replying to the arguments advanced by learned counsel for the respondent, it was pleaded by learned counsel for the petitioner that the petitioner did object to the jurisdiction of the learned Rent Controller to make order for the deposit of rent and that was why he, had framed an issue in regard to his jurisdiction to deal with the disputed premises. It was added by him that even if it was assumed that the petitioner had not taken an objection to the order for deposit of rent he was not estopped from raising that objection because there was no estoppel against law. As regards the relationship of landlord and tenant between the parties, it was submitted by the learned counsel that by questioning the jurisdiction of the learned Rent Controller on the ground that the disputed property was a factory, the petitioner had, in effect, denied the said relationship.
He explained that by asserting that the disputed property was a factory the petitioner wanted to convey that he was not a tenant within the meaning of clause (i) of section 2 of the said Ordinance because according to clause (i) only that person can be treated as a tenant who is occupying building or rented land as defined in clauses (a) and (f ) of section 2 of the said Ordinance. In this connection, reliance was placed by him on Messrs Rehman Cotton Factory v. Messrs Nichimen Co.
Ltd., Karachi (1), Messrs Rahman Cotton Factory v. Messrs Nichimen Co. Ltd., Karachi (2) and Ahmad Aziz Zia v. Muhammad Siddique and another (3).
8. To start with, I would like to find out if I can look into the respondent's plea that the order for deposit of rent was without jurisdiction. It is true that on the record there is no mention of, the fact that before the said order was made by the learned Rent Controller, under the first part of sub-- section (6) of section 13 of the said Ordinance, the petitioner had objected to the jurisdiction of the learned Rent Controller to make that order but since in his reply to the ejectment application it was pleaded by the petitioner that the learned Rent Controller had no jurisdiction to bear the application, it would follow that according to the petitioner the learned Rent Controller could not make any order on the application, including an order for the deposit of rent. It is also well settled by now that the question of jurisdiction can be raised at any stage of the proceedings. There is thus no bar to my examining the question whether the order for deposit of rent was without law--ful authority.
(1) PLD 1970 Lah. 455 (2) PLD 1976 SC 781
(3) PLD 1982 Lah. 37
9. As for the relationship of landlord and tenant, it is true that it was not expressly denied by the petitioner, that the respondent had let the disputed property to him out by maintaining tat the said property was a factory, the petitioner had, by implication, urged that he and the respondent were not 'tenant" and "landlord within the meanings of clauses (c) and (1) of section 2 of the said Ordinance, respectively. Both these clauses make mention of the word "building" and the term 'rented land", and if the disputed property is not "building" or "rented land" as defined in clauses and
(f) of section 2, neither the petitioner can be treated as tenant nor the respondent can be deemed to be landlord for the purpose of section 13 of the said Ordinance, which deals with ejectment matters. The present case too is therefore, a case of denial of tenancy and, as conceded by learned counsel for the respondent, in such cases the Rent Controller has no jurisdiction to male order for deposit of rent unless the tenancy is established.
10. Even if the view taken is that it is not a case of denial of tenancy inasmuch as the petitioner had not in so many words, pleaded non-existence of relationship of landlord and tenant between the parties, it will make little difference. The respondent had sought eviction of the petitioner from the disputed premises under section 13 of the said Ordinance. According to the provisions of section 13, the Rent Controller can pass an order of eviction with regard to a building or rented land. This means that if the property involved in the ejectment proceedings is not building or rented land as defined in clauses (a) and (f ) of section 2 of the said Ordinance, the Rent Controller would have no jurisdiction to direct ejectment of the tenant from that property. It was averred by the petitioner that the property in dispute was a factory, and it has been ruled in Messrs Rahman Cotton Factory and Ahmad Azlz Zia B that a factory is neither a building nor rented land within the meanings of clauses (a) and (f ). Thus, by raising the plea that the property in question was a factory, the petitioner had questioned the jurisdiction of the learned Rent Controller to hear the ejectment application made against him. To my mind, there is no difference between an objection to the jurisdiction of the Rent Controller on the ground of absence of relationship of landlord and tenant between the parties and the objection to his jurisdiction on the plea that the property involved in the ejectment proceedings is not within the compass of the said Ordinance. In taking this view, I am fortified by .The aforementioned cases of Muhammad Ismail, Akhtar Ali and Muhammad Zaman in which it was indicated that when the tenancy is denied, the jurisdiction of the Rent Controller is challenged. In this view of the matter notwithstanding the petitioner's omission to plead absence of tenancy, it was incumbent upon the learned Rent Controller to adjudicate upon the plea that he had no jurisdiction to hear ejectment proceedings launched by the respondent.
11. When the , petitioner had assailed the jurisdiction of the learned Rent Controller he had not only questioned his jurisdiction to make the order of his ejectment but had also challenged his jurisdiction to make any order of significance. The order for the deposit of rent was also an order of that character because its compliance was to result in an order of eviction against the petitioner.
And, as explained above, the order of ejectment was, in fact, passed against the petitioner for his not complying with the order for deposit of rent. Since the order for deposit of rent had been made by the learned Rent Controller without deciding the question of jurisdiction against the petitioner, by recording evidence or otherwise, his order in this behalf was without lawful authority. Resultantly, the order of eviction passed against the petitioner, due to his making default in the compliance of order for deposit of rent, deserves to. Be quashed because if the foundation gives way, the superstructure cannot stand. Similar view was taken in the cases of Yousaf Ali and Abdul Qayyum relied upon by learned counsel for the petitioner.
12. As for the case of Mushtaq Husain, it was relied upon by learned counsel for the respondent to support his plea that the learned Rent Controller could form a tentative view on the question of jurisdiction and if such a view was in favour of his being vested with jurisdiction to hear the ejectment matter he could make order for the deposit of rent. There is, however, nothing in that case to back the proposition propounded by learned counsel for the respondent. The tentative view referred to in the above case is in regard to the rate of rent or the quantum of arrears of rent required to be deposited by the tenant and not in respect of the plea of want of jurisdiction. The case of Mushtaq Hussain is, therefore, of no avail to the respondent.
13. There is also another reason for which the order of ejectment cannot be upheld. As pointed out earlier, the issue of jurisdiction, framed along with other issues on merits, was yet to be decided by the learned Rent Controller when he bad made the order of ejectment. The petitioner had adduced some evidence on the issues and was yet to produce his remaining evidence thereon when the impugned order was passed by the learned Rent Controller. While making that order, it was not held by the learned Rent Controller that he had jurisdiction to decide the application. And even if he had held accordingly, his order in this regard could be struck down by this Court because of its having been passed without affording full opportunity to the petitioner to produce his evidence on the issue of jurisdiction. It would, therefore, follow that even if the order of eviction is not set aside on the ground that the order for deposit of rent, for non-compliance whereof the petitioner's ejectment was ordered, was without lawful authority, the order of eviction would be without jurisdiction for having been made in l disregard of the rules of natural justice.
14. In view of what has gone above, I accept this writ petition, net aside the order of eviction of the petitioner as also the order dated 10th July; 1979 passed by the Rent Controller for deposit of rent.
The Rent Controller is directed to record the remaining evidence of the petitioner on the issues framed in the case and then decide the appeal by recording his findings on those issues. As desired by learned counsel for the respondent it is hereby clarified that this order shall not in any way influence the Rent Controller in deciding the question whether the disputed property is a building or rented land within the meanings of the said Ordinance. There shall be no order as to costs.
15. The parties shall appear before the learned Rent Controller on 3rd April, 1982. Since this is an old matter the learned Rent Controller shall decide it before the coming summer vacations.