SYED ARSHAD ALI, J.---Through instant appeal, the appellant has questioned the validity, legality and propriety of judgment/order dated 04.01.2017 passed by Rent Controller, Cantonment Board, Abbottabad whereby the application filed by the present appellant for rejection of ejectment petition was turned down.
2. Brief but essential facts of the instant appeal are that respondent filed a petition before Rent Controller, Cantonment Board, Abbottabad against the present petitioner and two others with the following prayers:-- "I. Ejectment of petitioner from shop No.5 situated Jamil Market Chandni Chowk, Supply, Abbottabad.
2. Recovery of previous rent Rs.6000/- per month from July, 2015 till November, 2015 of five months Rs. 30, 000/-.
3. Recovery of Rs.10,000/- rent per month from December, 2015 with annual increase of 10%."
3. The present petitioner appeared before the learned trial Court and filed an application for rejection of ejection of petition filed by the respondent, which was dismissed whereas the ejectment petition was accepted filed by the respondent by the learned Rent Controller through order dated 04.1.2017, hence the instant appeal.
4. Arguments heard and record perused.
5. Perusal of record would reveal that the landlord had filed an ejectment petition from the suit premises against the tenant on the ground of default and subletting the suit premises to respondents Nos.2 and 3. The said ejectment petition was filed on 04.12.2015 and order sheet dated 06.1.2016 reveals that both the parties were present and the case was posted to 13.1.2016 for filing of written reply. However, thereafter the case was adjourned on Note Reader continuously from 13.1.2016 to 27.1.2016. When the case came up for hearing on 03.2.2016, the learned Presiding Officer has granted last chance to the present petitioner for filing written reply and the case was posted to 10.2.2016. On 10.2.2016, the learned Presiding Officer was busy in some other official work and the case was adjourned on Note Reader. Thereafter the case continued to be adjourned on Note Readers on 24.2.2016, 02.3.2016, 09.3.2016, 30.6.2016, 06.4.2016, 13.4.2016, 27.4.2016, 4.5.2016 and 11.5.2016. When the case came up for hearing on 18.5.2016, the learned Presiding Officer granted one day further time for filing written reply to the present petitioner and on the same day through separate order, passed an order for the deposit of rent. The order sheet dated 15.6.2016 reveals that learned counsel appearing on behalf of present petitioner filed vakalatnama and requested the Court to first dispose of the application for summary rejection of the ejectment petition and thereafter an appropriate order may be passed. In the said application for summary dismissal, the tenant/present petitioner has challenged his relation with the landlord. Both the parties submitted their written arguments and finally, the learned Rent Controller vide impugned order dated 04.1.2017 accepted the ejectment petition of the landlord and ordered ejectment of the present petitioner from the suit premises.
6. Being a first appeal against the order, this Court is vested with jurisdiction to consider all the preceding orders leading to the final order/decree. The perusal of ejectment petition reveals that there is also a dispute regarding the relationship between the parties. The Learned Rent Controller while passing an order under section 17(8) of the Cantonment Rent Restriction Act, 1963 cannot act mechanically but has to consider both, the plea of petitioner as well as defence offered by the tenant. Whereas in the present case without waiting for the written reply of the petitioner, the learned Rent Controller has passed an order under section 17(8) of the Cantonment Rent Restriction Act, 1963 without giving any opportunity to the tenant to explain his cause qua put forward his defence. Hence, the subsequent order of ejectment passed by learned Rent Controller is not sustainable in the eyes of law. It is by now settled principle of law that when tenant denies his relationship with the landlord then in such situation the learned Rent Controller shall frame a preliminary issue on the existence of relationship of landlord and tenant and in case landlord establishes the relationship in affirmative to the satisfaction of the learned Rent Controller then the same will follow ejectment order against the tenant. Even otherwise before striking of the defence of tenant no notice was issued to him which a mandatory requirement before passing an order striking the defence. In this view of the matter, the impugned order dated 04.1.2017 is not sustainable in the eyes of law. Guidance sought from 1983 SCMR 1064, 1994 SCMR 572, 1991 CLC 1364 (Lahore), 1996 CLC 368 (Karachi) and PLD 2001 Peshawar 42.
7. Accordingly this appeal is allowed, the impugned order dated 04.1.2017 is set aside and the case is remanded back to the learned Rent Controller with direction to frame a preliminary issue regarding existence of relationship between the parties and if after framing preliminary issue and recording evidence of the parties it is established that tenant denied the relationship/title of the landlord contumaciously and without valid cause or the landlord has successfully established his relationship of being landlord then the learned Rent Controller shall pass, the order in accordance with law.