This petition has called in question the appellate order of the learned District Judge, Lahore dated 15-7-1978 whereby he maintained the order of the Additional Rent Controller, Lahore Cantonment dated 24-5-1977 striking of the petitioner's defence and directing him to vacate the premises within fifteen days.
On his purchasing the bungalow comprising of quarter No. 2 in dispute, . The respondent sought ejectment of the petitioner inter alia on the ground that he had defaulted in the payment of rent in spite of a notice served on him. In the written statement submitted by the petitioner before the Additional Rent Controller, Lahore Cantonment the relationship was virtually not denied, nor was the rate of rent disputed. It was main--tained that the petitioner had regularly been paying rent even for the months of October, 1976 to January, 1977. An objection was however taken that the said Additional Controller had no jurisdiction to try the petition. It appears from the record that on the first available opportunity the Additional Controller directed the petitioner under section 17 (8) of the Cantonments Rent Restriction Act (XI of 1963) to deposit on or before 28-3-1977 a sum of Rs.45 as arrear of rent for the months of December 1976 to February, 1977 and continue to pay fature rent at the rate of Rs.15 per month before the 5th day of each month. Since the compliance was not made, the respondent made an application on 26-4-1977 for striking of the petitioner's defence and putting the respondent in possession forthwith. The application was again contested by the petitioner by his reply dated 3-5-1977 in which he had taken contradictory pleas contending that the very relationship of landlord and tenant did not exist and that no notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) was served on him.
3. The Additional Controller by his order dated 24-5-1977 struck of the defence and directed the petitioner to be ejected from the quarter in dispute within 15 days. He observed that a new plea in respect of relation--ship between the parties could not be taken up unless with permission from him, and that the order passed under section 17 (8) of the Act was perfectly in accordance with law and its non-compliance had rightly resulted to the order of ejectment. In appeal the learned District Judge expressed the same view and held that no formal enquiry was required to be held by the Addi--tional Controller whether or not the petitioner was a tenant under the respondent. The appeal was consequently dismissed.
4. It has been urged that the powers of the Rent Controller could under the Act be conferred on the Executive Officer alone, and there being n provision in the Cantonments Act (II of 1924) for appointment of an Additional Executive Officer the conferment of powers of the Rent Controller A on him would be against law. It was, therefore, contended that the Addi--tional Executive Officer could not act as an Additional Rent Controller and for that reason his appointment was illegal. The point has already been, taken up in Hafeez-ur-Rehman's v. The Additional Rent Controller, Lahore Cantt. (1981 CLC 185) and it is held that "the contention is not tenable because in the first instance it is nobody's case that there are more than one Executive Officer in the Lahore Cantonment. An Additional Executive Officer cannot be said to be an Executive Officer even though he may be discharging some of the functions of an Executive Officer. Secondly the contention raises a point of quo warranto which cannot be decided without impleading the Federal Government. The contention based on an interpretation of the Cantonment Act is also a collateral question. The competency of the Federal Government to appoint an Additional Executive Officer cannot, therefore, be challenged under the Cantonments Rent Restriction Act." With reference to the law laid down in Farzand Ali v. Province of West Pakistan (PLD 1970 SC 98) with regard to the then members of the National Assembly it is evident that "at any rate the allegedly qualified respondents had acted as de facto members, for, they had acted under the bona fide belief that they were entitled to so act and had at least a fair colour of title and they have also performed their duties with public acquiescence." In view of what has been held it was not for the Additional Rent Controller to decide the constitutional question or those relating to the Cantonments Act. Even otherwise, the question of jurisdiction as taken up during arguments before this Court was not raised in that shape in the pleadings, and the Additional Controller as well as the learned District Judge were not supposed to discuss the same in their orders.
5. The question of jurisdiction on account of absence of relationship of landlord and tenant between the parties was never raised at its proper time and as held by the learned District Judge the question of deciding it at the time of passing an order under section 17 (8) of the Act did not arise. It is, therefore, wrong to say that such determination was not made. It is also wrong to say that the Additional Controller had at any stage of the pro--ceedings failed to afford an opportunity to the petitioner, although the same was not specifically claimed. In the circumstances, it is not made out that the Additional Rent Controller or the learned District Judge, had in the exercise of their jurisdiction, acted in any manner illegally or with material irregularity.
For the foregoing reasons I find no force in the petition and the same is dismissed with no order as to costs.