1. Mst. Fatima Bai, who claims to be the owner of quarter No. 6/441 situate in Liaquatabad, Karachi filed an application for ejectment on 31-8-76 in the Court of third Rent Controller Karachi for ejectment of tenant Jan Muhammad from the other half of the same quarter in which he lived. The ground for ejectment was default in the payment of rent. Perusal of the case diary in the rent case record shows that on 14-3-77 it is stated in the case diary that Advocate for applicant was present and opponent and his counsel were called absent. It was 1 p. m. Opponent had not filed written statement. Opponent to be treated as ex parte. Put off to 29-3-77 for ex parte evidence. On 15-4-77 application for eject--ment was allowed ex parte. Thereafter execution application was filed on 11- 10-77 and writ of ejectment was issued and landlady was put into possession on 1-11-77. On 12-11-77 tenant filed two applications before the Rent Controller one under Order IX, rule 13 C. P. C. Read with section 151, C. P. C. For setting aside ex parte order and to allow him to contest the matter on merits.
2. The other application of the same date is under section 144, C. P. C. Read with section 151, C, P. C. In which prayer is made for restitution of possession of the premises in question to be handed over to the tenant by the landlady, which was illegally obtained. It is stated in the affidavit filed along with application under Order IX, rule 13, C. P. C. By the tenant that he had been living in the half quarter and in the other half the landlady lived and a false report was manipulated by the bailiff' and produced in the Court that he refused to accept the summons. Any way both these applications were dismissed.
3. The tenant then went and filed an appeal before the learned District Judge, who after hearing both parties dismissed the same on 17-4-78. Tenant then approached High Court and filed 11 Appeal No. 292/78 in which ultimately on 13-5-79 by consent the second appeal was allowed, ex parte order was set aside and the case was remanded to the Rent Controller for disposal after hearing both parties and deciding first preliminary objection with regard to the relationship between the landlady and the tenant. After the remand of the case tenant moved an application before the Rent Controller under section 144, C. P. C. For restitution of possession and the learned Rent Controller after issuing notice and bearing the parties finally passed such positive order on 12-12-79 for restitution of possession to the tenant.
4. Aggrieved against the order of restitution of possession passed by the Rent Controller, the landlady came to the High Court filed F. R. A. No. 96/80 on 12-12-80 and on the same day filed Constitutional Petition No. 437/80 (before Division Bench) assailing the same order as stated above. So far F. R. A.
5. No. 96/80 is concerned, Mr. G. M. Salim, Advocate appearing for the landlady informed the Court on 17-2-80 that he would only request for grant of two months time for the landlady to hand over vacant possession of the premises to the tenant. In such circumstances the learned Chief Justice issued notice to the respondent (tenant) for 24-2-80 on the limited point of allowing two months time. On the next date, i.e. 24-2-80 the parties appeared before the learned Chief Justice and Mr. Muhammad Ali Shaikh appearing for respondent/tenant stated that he has no objection if the appellant/landlady continue to remain in possession for one month from that date. On such undertaking and assurance the appeal was dismissed in limine in terms of the order stated above and by consent one month's time was allowed to the landlady to vacate the premises. It was further observed in the order by the learned Chief Justice that the appellant shall be liable to eviction after expiry of one month without notice. After F. R. A.
6. No. 96/80 was disposed of as stated above the landlady found herself unwilling to hand over the possession concentrated on Constitutional Petition No. 437/80 which was admitted on 11-3-80 but no order was passed by the Division Bench for grant of stay. Failing to get relief in that Constitu-- tional Petition, the landlady apparently lost interest in that matter which was subsequently dismissed. In the meantime Rent Controller, who was dealing with rent case received by him on remand from the High Court proceeded further and after hearing the parties decided that important preliminary issue with regard to the relationship of landlady and tenant between the parties. He gave negative finding to the effect that there was no such relationship between the parties.
7. Against this order the landlady has filed F. R. A. No. 288/80 which was admitted by learned Single Judge of this Court vide order dated 8-4-80. On the miscellaneous application the Court granted ad interim stay in the meantime.
8. I have beard Mr. G. M. Saleem Advocate for landlady at earlier stage, who subsequently withdrew from proceedings and was replaced by Mr. Azhar Ali Siddiqui. Tenant is represented by Mr. Muhammad Ali Shaikh and Mr. Ali Ahmed Patoli Advocates. I have beard the learned counsel appearing in the matter on several occasions when this case was posted for hearing. The main grievance now appears to be that there is an order of the learned Rent Controller which is to the effect that there is no relationship of landlady and tenant between the parties as such he has no jurisdiction in the matter. Mr. Azhar Ali Siddiqui Advocate for the landlady stated that he is aggrieved against the impugned order for the reason that there is an incidental order arising from rent proceedings passed by Rent Controller granting prayer of restitution of possession in favour of the tenant. At the same time Mr. Azhar Ali Siddiqui has further stated that initially during the rent proceedings ex parte order was passed in his favour on the basis of which landlady got into possession of the disputed premises . Which stands protected. Strangely enough both parties admit that they are individually claiming title to the quarter in question. Landlady claims title to the whole quarter and further states that Jan Muhammad was her tenant in half quarter on rent but had' committed default as such she has filed ejectment proceedings against him which terminated in her favour and she got writ of possession issued in pursuance whereof she succeeded in taking over possession of that half quarter from Jan Muhammad. On the other hand it is submitted on behalf of Jan Muhammad that he had been living in the half quarter which is claimed by the landlady and subsequently he purchased that half quarter from the husband of the applicant. In addition to that he has lease-deed executed in his favour before Sub-Registrar, Karachi by K. M. C. Bearing registration No. 3410 pages 55 to 57, Volume 1507, dated 30-4-76.
9. According to the tenant he is now sole and absolute owner of half quarter Bearing No. 6/541. It is further stated on behalf of the tenant that landlady had filed a Suit No. 683/76 in the Court of Civil Judge, Karachi against the grant of lease in his favour and subsequently after the lease was executed she had filed another Suit No. 1995/76. It is admitted before me by all the learned counsel present in this case that both parties have filed suits in civil Courts in respect of title which they claim in the quarter in question and those suits are pending. In such circumstances the learned counsel have agreed that since the question of title between the parties is being decided b the civil Court, no fault can be found with the finding of the Rent Controller that he cannot exercise jurisdiction for lack of relationship between the parties of landlady and tenant. Mr. Azhar Ali Siddiqui then submitted that so far he is concerned one suit for declaration of title filed by the landlady is decreed in her favour against which the tenant has filed appeal which is pending. In any case in these circumstances when the parties are trying in the right forums for determination of their claims with regard to the title in the disputed quarter the decision of the Rent Controller appears to be perfectly right and justifiable. Now the question arises as to what would be the fate of proceedings conducted by the Rent Controller and the orders passed by him during the pendency on that rent case before the Rent Controller finally came to the conclusion that he had no jurisdiction in the matter as there did not exist relationship of landlady and tenant between the parties. It is indisputable that the proceedings before the Rent Controller now suffers from a great jurisdictional defect because if the parties before him are not landlady and tenant as in the instant case, he cannot try that case and he has no jurisdiction to try that case. Rent Controller becomes divested of the jurisdiction which is conferred upon him by the statute if he finds that the parties before him are not landlady and tenant. The moment this defect and for that matter a jurisdictional defect is discovered, proceedings entertained by him become coram non judice and- all such proceedings and orders can be stated to be of no legal effect as having been passed without lawful authority. Mr. Azhar Ali Siddiqui submitted that order passed by the Rent Controller issuing writ of possession in favour of landlady has been protected because it was passed in good faith at that time and secondly that it has been acted upon and possession was taken over from the tenant and banded over to the landlady. This argument does not seem to be valid. If it is held that the: proceedings conducted by the Rent Controller are illegal and without lawful authority then all the proceedings stand vitiated. Similarly the order passed by the Rent Controller for restoration of possession to the tenant also is without lawful authority. In the circumstances one has to consider that if proceedings by the Rent Controller right from the beginning up to the end stand completely washed out then principles of equity and natural justice require that status quo ante should be restored and the parties should be placed in their original position which they were before ejectment proceedings were initiated. In this context it may be pointed out that in the ejectment applica--tion filed by the landlady it is clearly stated that Jan Muhammad was staying in half portion of the quarter of which she is the owner at monthly rent of Rs.
50. In these circumstances and for the facts and reasons mentioned above I uphold the impugned order of the Rent Controller that be has no jurisdiction as there is no relationship of landlady and tenant between the parties hence proceedings conducted by him from beginning .
10. To the end were without lawful authority. I shall therefore order status qua ante which was available before the ejectment proceedings were commenced in consequence whereof I direct the landlady to put into possession Jan Muhammad in half quarter in which he was living when she filed ejectment application. Another additional reason which fortifies my conclusion is that in F. R. A.
11. No. 96/80 both the parties had appeared before the learned Chief Justice, who was hearing the appeal and by consent he passed order! Dated 17-2-80 and 24-2-80 whereby the landlady had given her free consent and assurance to vacate the half quarter in order to give possession thereof to Jan Muhammad within one month from the date of the order passed on 24-2-80. This consent order was not honoured by the landlady and she attempted to adopt dilatory tactics to avoid full compliance of the counsel order of the Court.
12. In the result appeal is dismissed and appellant/land-lady is ordered to vacate half portion of the quarter in which Jan Muhammad used to live and put him in possession. Nazir is directed to go to the site along with respondent and see that peaceful vacant possession of half of the quarter is transferred to Jan Muhammad and if there is any resistance then he is allowed to use police force also. Respondent is directed to deposit Rs. 500, as fee of Nazir.