1. This second appeal under section 15(4) of the Sind Urban Rent Restric--tion Ordinance, 1959 (hereinafter called `the Ordinance') is directed against the order dated 15-12-1979, passed by VIII Additional District Judge, Karachi whereby he set aside the order dated 30-1-1979, passed by the Controller in .Rent Case No. 2201 of 1972.
2. Briefly stated the facts are as follows. The appellant claiming to be the landlord of the house bearing No. 171/B, behind Azhar Masjid. Waheedabad, Golimar, Karachi on 20-9-1972, . Filed an application under section 13 of the Ordinance for eviction of the respondent from the house on the ground that the respondent had failed to pay rent of the premises from 15-8-1969. It was claimed in the application that the appellant bad rented out the house to the respondent only for one month at a rent of Rs.50 per month, on the recommendation of Master Abdul Wahid.
3. The respondent in her written statement denied the relationship of land--lord and tenant between her and the appellant and pleaded that she had purchased the house from the appellant for a consideration of Rs.2,600 and out of which she had paid a sum of Rs.2,000 on 26-2-1969, and on receiving the said amount the appellant had put her in possession of the house, and the balance amount of Rs.600 was agreed to be paid after 4 or 5 months when, according to the respondent, the appellant had agreed to give final transfer receipt of Rs.26,000. She further stated in her written statement that she had filed a suit being Suit No. 2223 of 1972, for specific performance of the contract which was then pending.
4. It may be mentioned here that the appellant claims to have purchased a but for Rs.400 and in its place constructed a three room house at alleged cost of Rs.3,200. He however, has no document of title in respect of the house in his favour or allotment order or any other document in respect of land whereon the house was built.
5. On the pleadings of the parties the Controller framed the following issues as preliminary issues :- "(1) Whether the relationship of landlord and tenant exists between the parties ?
(2) Whether the suit for specific performance of the contract is pending between the parties, if so, what is its effect?"
6. The respondent, on the other hand, in support of her case examined herself and Sabir Hussain, a neighbour and -produced a certified copy of the extract from the Register of properties maintained by the Excise & Taxation Department recording her name as owner of the house and electric bill dated 20-1-1976; (Exh. 0/4) notice dated 13-8-1974 (Exh. 0/5) from Excise and Taxation Department for recording amendment of the annual letting value of the house extract from P. T. I. Regular (Exh.
7. 0/6) receipt, dated 20-11-1977 (Exh. 0/7) for payment of electricity bill and notice (Exh. 0/8) requiring payment for providing electricity.
8. The learned Controller by the order dated 30-1-1978, decided the issue of relationship of landlord and tenant in favour of the appellant holding that such a relationship existed between the parties.
9. As regards second issue he observed that admittedly the suit for specific performance of the contract was dismissed and even otherwise he further observed, until she was able to obtain any prohibitory order, the proceedings would continue. This issue was answered accordingly.
10. This order was followed by another order rated 19-7-1978, under section 13(6) of the Ordinance whereby the Controller directed the respondent to deposit Rs.5,300 being the arrears of rent from 15-8-1969 to 30-6-1978, which the respondent failed to deposit. The Controller, therefore, by the order dated 15-2-1979, struck of the defence of the respondent and directed her to hand over vacant possession of the premises within 2 months of the pronouncement of the order to the appellant. Therefore, the respondent filed first Appeal which has been allowed by the Additional District Judge, Karachi by the Judgment now impugned before me.
11. It appears from the record of the first rent appeal that the respondent had filed a constitutional petition being Petition No. D-467 of 1978 against the order dated 30-1-1978, which was dismissed - in limine with the observa--tion that an order holding that the relationship of landlord and tenant exists is not an appealable order and if and when a final order is mad against the petitioner for eviction it would be open to her to challenge th interim finding in the appeal.
12. I have heard Mr. M. G. Dastgir, Advocate for the appellant and Mr. Ameer Ahmed Khan Advocate for the respondent and they have taken me through the entire record including the depositions of the parties and their respective witnesses.
13. Mr. M. G. Dastgir has raised before me following three grounds in support of the appeal:-
(1) that the finding of the First Appellate Court that there does not exist aw o relationship of landlord and tenant between the parties is incorrect, erroneous ;
(2) that the Appellate Court did not dispose of application under section 13(6) of the Ordinance dated 27-5-1979, whereby the appellant had prayed for withdrawal of the ad interim stay order passed on 28-3-1979, and for dismissal of the appeal for wilful, deliberate and clear disregard of the order dated 28-3-1979, passed on the application under section 15(2) of the Ordinance, and non-compliance of the Controller's order dated 19-7-1978.
(3) that the merits of the , case in first appeal could not be considered unless and until the order of the Controller, dated 19-7-1978 had been complied with. ---Now, so far as the first ground is concerned it may be stated that a finding of fact given in first appeal is not open to challenge unless there was misreading or non Now, taking up the second ground. That the First Appellate Court could not consider the merits of the case it is submitted by Mr. M. G. Dastgir that where the defence has been struck of for non- compliance of the order of the Controller passed under section 13 of the Ordinance, the Appellate Court cannot go into the merits of the case. In this connection the learned counsel has relied on Abdul Hai Badad v. Sibte Hassan (1979 CLC 348) and Mushtaq Hussain v. Muhammad Shafi (1979 SCMR 496).
14. As regards the two cases relied upon by Mr. M. G. Dastgir I may point out that in both the cases no question as to existence of relationship of landlord and tenant was involved. In the first case the plea raised was that; the respondent had no cause of action when he filed the applica--tion and the same was premature and it was in this connection that I had said in the .Decision that the question pertained to the merits of defence of the appellant in that case which was struck of. In the second case it is observed by Karam Elahi Chauhan, J. That compliance of a direction under section 13(6) ' of the Ordinance with regard to deposit of arrears of rent and future rent is a condition precedent for requiring the Controller to examine correctness of various defence pleas of the tenants or to further proceed with their trial for ejectment. But this authority does nowhere lay down that if a finding on jurisdictional issue is given the same cannot be considered by Appellate Court in case the order of the Controller is not complied with, for an order under section 13(6) could be passed only when the existence of relationship of landlord and tenant existed, therefore, p the finding of such a question precedes the order passed under section 13(6) of the Ordinance. Now, if a finding on the jurisdictional question is erroneous or illegal and is set aside then naturally the subsequent orders passed in the same proceedings cannot hold the fort.
15. Before I consider the third ground I may reproduce the order dated 28-3-1979 which was passed by the leaned Additional District Judge on the application under section 15(2) of the Ordinance, dated 15-3-1979, which reads as follows "Heard the learned Advocate for the appellant. Since the appeal has been admitted let the status quo to be maintained till 15-4-1979 however the appellant is directed to deposit the arrears of rent in the Courts if any, before 15-4-1979. The appellant should also continue to deposit I future rent at the same rate in the Court before 15th of every calendar month."
16. Now, it will be seen from the above order that the order of status quo was to remain in operation till 15-4-1979. Mr. M. G. Dastgir has not been able to point out from the record that it was ever extended beyond the said date, therefore, on 27-5-1979, when the application under section 13(6) of the Ordinance was made, before the Additional District Judge, firstly, there was no such order in operation, secondly, the order could- not attract the provision of section 13(6) of the Ordinance for there was no question of compliance of the order under section 13(6) of the Ordinance as due to non-compliance of the order passed by the Controller under section 13(6) of the Ordinance the defence of the appellant had been struck of and there could not have been any question for striking of the defence again, the order dated 15-4-1979 was passed on an application under section 15(2) of the Ordinance and not under section 13(6) thereof.
17. The learned counsel for the appellant cited Abdul Qayum Ansari v. Salahuddin Qureshi (P L.D 1974 Kar. 10) and Meh Gul and .Others v. Nazar Abbas, etc. C. P. S. L. A. No. 272/78. But these cases are of no help to him in this regard for Meh Gul's case lays down that the appellate authority is competent to pass order under section 13(6) of the Ordinance and for non-compliance thereof could strike of the defence of the tenant. There cannot be any dispute with that pro--position in view of the decision of this Court in Raushan Din v. S. M. Badruddin (PLD 1969 Kar. 546), which as followed by Dorab Patel, J. In Abdul Qayum Ansarl v. Salahuddin Qureshi wherein the learned Judge has discussed the entire case--Iaw on the point anti to which reference has been made by the learned counsel for the appellant. But in the present case the Appellate Court did not ,itself pass any order under section 13(6) of the Ordinance, therefore, no, question could arise for striking of the defence of the respondent.
18. For the reasons stated above I dismiss this appeal with costs.