The appellant above-named, being aggrieved by order dated 16th October, 1977 passed by respondent No. 2 by which the appellant was directed to hand over the possession of the premises its his occupation, to respondent No, 3 by 7th November 1977, filed Constitutional Petition No. D-715 of 1977, which was converted into F. R. A. No. 119 of 1981 in view of the promulgation of the Martial Law Courts (Validetion) Order Ordinance, 1980 vide Sind Ordi--nance No. I of 1980 dated 19th January, 1980 on the following facts and grounds :-
2. The appellant claims to be the tenant of the son of respondent No. 3 in respect of House No. 8/10, Willayatabad, Karachi at Rs.70 per month besides the electric charges at Rs.20 per month.
According to the appellant, the son of respondent had pressed the appellant to enhance the rent, but the appellant had refused and as such the respondent No. 3's son desired the appellant to vacate the premises, which also the appellant refused and con--sequently the respondent No. 3 filed an ejectment application against the appellant, under M. L. O. 20 in the Court of respondent No. 2 and conse--quently the appellant was called upon to appear before respondent No. 2 on 2- 10-1977. The appellant in response to the notice of respondent No. 2 appeared before the respondent No. 2 who after making some inquiries from the appellant, ordered the appellant to vacate the premises and hand over its possession to respondent No. 3 by 7-11-1977, vide his order dated 16th October, 1977.
3. The appellant being aggrieved by the order dated 16th October, 1977 has filed the ab6ve appeal on the grounds mentioned in the memo of appeal However, the learned Advocate for the appellant has pressed one ground relating to non-existence of relationship of landlord and tenant between the appellant and respondent No. 3, on the basis of Annexure "C" attached with the above appeal and submitted that since appellant denied the relationship of landlord and tenant between himself and respondent No.. 3, before the respondent No. 2, the respondent No. 2 without deciding this issue, assumed the jurisdiction under M. L. O. 20 and passed order dated 16th October, 1977 and as such the said order is without lawful authority and consequently without jurisdiction. Learned Advocate submitted, that the provisions of M. L. O. 20 clearly show that disputes between the landlord and tenants under the provisions of Sind Urban Rent Restriction ordinance, 1959 could alone be dealt with under M. L. O. 20 and in view of this; when the appellant had denied the relationship of landlord and tenant between himself and respondent No. 3 on the basis of Annexure "C", the respondent No. 2 before assuming jurisdiction under M. L. O. 20 ought to have decided the question of relationship between the parties, which he failed to do so and as such the assumption of the jurisdiction by respondent No. 2 was without lawful authority and consequently the order dated 16th October, 1977 passed by respondent No. 2 is also without jurisdiction and as such liable to be set aside by this Court. Learned Advocate for the appellant drew my attention to Annexure "C" and the bill of Karachi Electric Supply Corporation Ltd. Dated 6th January, 1973 in respect of the premises in question, which is at page 21 of the above file, which shows Kafeel Ahmed as the person in whose name the electric meter of the said premises stands which corroborates Annexure "C", the rent receipt issued by said Kafeel Ahmad, that .He is the owner of the said house.
4. Learned Advocate for the respondent, on the other hand, drew my attention to the counter- affidavit dated 21st January, 1978 filed by respondent No. 3 in the above matter and Annexures "X-1" being the photo copy of P. T. I of Excise and Taxation Officer, "A" Division, which shows that the respondent No. 3 is the owner of the property in question after the death of her husband. Learned Advocate on the basis of this counter-affidavit and Annexure "X-1" submitted, that their exists relationship of landlord and tenant between the parties and as such respondent No. 2 in assuming the jurisdiction under M. L. O. 20 on the application of respondent No. 3 was fully justified and as such his order dated 16th October, 1977 which was passed after hearing of the appellant is legal and valid.
4. I have carefully considered the above submissions made by the learned Advocates for the parties. Annexure "C", prima facie, shows, that Muhammad Kafeel used to collect rents from the appellant as owner, at least upto 16-10-1977 and even the electricity meter of the said house is in his name. No doubt Annexure "X-I" produced by the respondent No. 3 with her counter-affidavit shows respondent No. 3 as the exclusive owner of the property in question. The stand of respondent No. 3 in her counter-affidavit is, that the property in question originally belonged to her husband and on his death on 12th August, 1970 she inherited the said property exclusively. The question which required consideration by respondent No. 2 before assuming jurisdiction was whether respondent No. 3 was exclusive owner of the property in question and she rented out the said premises to the appellant as tenant or her respondent No. 3's son Kafeel Ahmed was the exclusive owner of the property in question and the landlord of the appellant, as mentioned by him in Annexure "C" the rent receipt. The record and proceedings of the respondent No. 2 are not before this Court, however, it is not clear from the order dated 16th October, 1977 whether the question of relationship between the appellant and respondent No. 3 was first decided by the respondent No. 2, before he assumed jurisdiction under M. L. O. 20 and passed order dated 16th October, 1977. The wordings of M. L. O. 20 clearly shows, that disputes between landlord and tenant only could have been taken under M. L. O. 20 before respondent No. 2 and since the appellant denied the relationship of landlord and tenant between himself and respondent No. 3 on the basis of Annexure "C", the said question ought to have been decided first by respondent No. 2 before assuming jurisdiction under M. L. O. 20. 1n the absence of the records of the case, which proceeded before respondent No. 2 and in the absence of anything to show in order dated 16th October, 1977, passed by respondent No. 2, that such question was determined by him before assuming jurisdiction I am of the opinion, that assumption of the jurisdiction by respondent No. 2, on the application of respondent No. 3 was without lawful authority and as such I set aside the order dated 16th October, 1977 of the respondent No. 2, as the assumption of jurisdiction by him, before determining the relationship of landlord and tenant between the parties was without lawful authority and as such I set aside order dated 16-10-1977 by respondent No. 2 and allow the above appeal, with no orders as to cost and remand the case to the Rent Controller, in whose jurisdiction the premises in occupation of the appellant are situated, to dispose of the ejectment application filed by the respondent No. 3, in the Court of respondent No. 2,1 in accordance with the provisions of Sind Rented Premises Ordinance, 1979, after affording full opportunity to both the parties to lead evidence in! Accordance with the provisions of said Act. The respondent No. 3 shall file copy of her application made before respondent No. ,2 in the Court of the learned Rent Controller in question, alongwith certified copy of this judgment, within one month from today and the learned Rent Controller, thereafter shall issue notice of the said application to the appellant in accordance with the provisions of Sind Rented Premises Ordinance, 1979,~and allow him to file his written statement and then proceed to dispose of respondent's No. 3 said application in accordance with law.