' Appellant above-named, being aggrieved by judgment dated 4-5-1980, of the learned Vlth Additional District Judge & Sessions Judge, Karachi, passed in 1st Appeal No, 9/79, by which he allowed the said appeal and set aside order dated 30-11-1978 of the learned XV Civil Judge/Rent Controller, Karachi, passed in R. C. No, 334/76, and remanded back the said ejectment application to the learned Rent Controller, for framing preliminary issue regarding relationship of landlord and tenant between the parties' and deciding the said issue and thereafter to dispose off appellant's ejectment application in accordance with law, has preferred this Second Appeal, on the following facts and grounds:-
2. On 4-8-1976, appellant filed ejectment application praying therein, that the respondent is tenant in the property in question, which belongs to her, as she is owner and landlord of the property in question and the respondent has defaulted in payment of rent.
3. Application was contested by respondent, who denied the contention in application and further took legal plea, that the appellant is not known to him and he only recognised her father to be the landlord of the property in question, who had rented him. He also further alleged, that the appellant is a minor girl and produced the School Certificate submitting, that she even could not herself engage Advocate or file said application, hence the application may be dismissed, on this ground alone.
4. However, the learned lower Court passed tentative rent order on 24-4-1978, subsequently due to non-compliance of tentative rent order, the' defence of the respondent was struck off.
5. Respondent above-named being aggrieved by order dated 30-11-1978 of the learned Rent Controller, preferred 1st Appeal No, 9/79, before the learned VIth Additional District Judge, Karachi, who vide its impugned judgment dated 4-5-1980, allowed the said appeal and set aside the order dated 30-11-1978 of the learned Rent Controller and remanded back the case to him for disposal in accordance with law, keeping in view the Appellate Court judgment dated 4-5-1980. Appellant above-named being aggrieved by said impugned judgment dated 4-5-1980 of the Vlth Additional District Judge, Karachi has preferred this second appeal, on the grounds mentioned in memo. Of appeal.
6. The learned Advocate for the appellant in support of the above appeal submitted as under:-
(a) It is not always necessary for learned' Rent Controller to frame and decide preliminary issue about relationship between the parties, in cases where sufficient material was available on record before him to support prima facie such relationship. In view of this the learned Advocate for the appellant submitted that learned VIth Additional District Judge, Karachi has erred in holding otherwise and consequently wrongly and illegally set aside order dated 30-11-78 passed by the learned Rent Controller.
(b) That respondent deliberately failed to comply with tentative rent order and as such learned Rent Controller was fully justified in allowing appellant's application under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959.
7. In support of the above contentions, the learned Advocate for the appellant relied upon cases reported in 1980 CLC 1457 ; PLD 1977 Lah. 516 and PLD 1977 Kar.
460.
8. The learned Advocate for the respondent on the other hand submitted, that the judgment dated 4-5-1980 of the learned VIth Additional District Judge, Karachi is in accordance with law laid down by various authorities of High Courts and Hon'ble Supreme Court and as such noncompliance of tentative rent order, which was passed before determining the relationship of landlord and tenant between the parties, in view of written statement of the respondent, was not legal order and as such non-compliance of such order could not have attracted the provisions of section 13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959, at all and consequently the learned 1st Appellate Court has rightly and legally set aside the impugned order dated 30-11-1978 of the learned Rent Controller, as the same was without jurisdiction. In support of this contention of his, the learned Advocate for the respondent relied upon cases reported in 1982 CLC 2005; PLD 1982 SC 165, PLD 1962 Quetta 67 ; PLD 1979 Quetta 39 ; PLD 1968 Kar. 869; PLD 1978 Kar. 145 ; PLD 1976 Pesh. 87 ; 1969 SCMR 72 and 1979 SCMR 524.
9. The learned Advocate for the respondent further submitted that above appeal was not maintainable, as it comes from interlocutory order only. In support of this the learned Advocate for the respondent relied upon cases reported in PLD 1978 SC 231 and PLD 1975 SC 457.
10. The third contention that was raised by the learned Advocate for the respondent before me was that since appellant was minor at the time of filing of ejectment application, the said application was not legally maintainable.
11. I have carefully considered the above submissions made by the learned counsel before me and have gone through both the judgment and order as well as through the authorities cited by the learned Advocate before me.
12. I have also gone through the ejectment application filed by the appellant and written statement filed by the respondent as well as through tentative rent order dated 30-3-1978 passed by the learned Rent Controller. It is significant to note, that appellant is completely silent when respondent was inducted as tenant. However, respondent in his written statement has given date of such induction as 5 years prior to date of filing of ejectment application in question, which would come to August, 1970, but according to respondent's reply dated 19-7-1976, he has been in occupation of the said premises from December, 1969. Copy of this reply in fact has been produced by the appellant, with her ejectment application. In view of the factual position on record, and date on which present appellant acquired lease-deed of the Quarter from K. D. A. i. e. 18-9-1975, prima facie, she was at least not the owner or landlady of the premises in question prior to 18-497D. In the absence of any assertions made by appellant, in the ejectment application about the date, when respondent was inducted in the premises as tenant, the assertion made by the respondent in his reply to appellant's notice dated 10-1-1976, that he is in occupation of the premises as tenant w,e,f, December, 1969, as tenant of Haji Azizuddin, father of the present appellant, prima facie, remains unrebutted, till recording of evidence of the parties. Keeping this in view and birth certificate of the appellant produced by the respondent, which is on record, it is clear, prima facie, that in December, 1969, appellant's age, prima facie was about 5 years and accordingly to lease-deed dated 18-8- 1975 produced by her, she was not the owner of the property in question in December, 1969, and consequently her father could not be deemed to be acting on her behalf, when he let out the premises in question to the respondent. Therefore, case reported in PLD 1977 Kar. 460; on which the learned Advocate for the appellant has relied does not apply to the present case at all, as the facts of the said case are completely different. Similarly, cases reported in PLD 1977 Lah. 516, 1980 CLC 1457 are also based on different facts and as such of no help to the appellant. I further find from the written statement of the respondent, that he has denied relationship of landlord and tenant between himself and present appellant, but in spite of this, the learned Rent Controller in his tentative order for deposit of rent has stated, that such relationship is not denied, which is not a fact. Therefore, in view of above facts, which are borne out from the records of the Court of learned Rent Controller, it was absolutely necessary as held by the learned First Appellate Court to frame and decide preliminary issue regarding relationship of landlord and tenant between the parties, before passing of tentative rent order dated 30-3-1978. In this connection, the authorities cited by the respondent specially those reported in PLD 1968 Kar. 869; PLD 1962 Quetta 67 and PLD 1979 Quetta 39 are fully applicable to the present case, in view of the facts of present case as narrated by me, hereinabove. Therefore, in my opinion, judgment dated 4-54980 of the learned VIth Additional District Judge, Karachi, passed in 1st Appeal No, 9 of 1979, is quite legal and I see no reasons to disagree with the same.
13. Beside my above conclusion, I also find some force in the contention of the learned Advocate for respondent, about maintainability of the above appeal against impugned judgment dated 4-5- 1980 of learned 1st Appellate Court. However, since I have agreed with the impugned judgment dated 4-5-1980 of the learned 1st Appellate Court, it is not necessary for me to give any specific finding on this second contention of the learned Advocate for respondent, in this appeal as well as in respect of the third contention of the learned Advocate for the respondent which will have to be decided by learned Rent Controller, after recording of evidence of the parties if necessary.
14. Therefore, I dismiss the above appeal with no orders as to cost and maintain judgment dated 4- 5-1980 of the learned VIth Additional District Judge, Karachi.
15. The above judgment will also dispose of Second Appeal No, 283/80, arising out of I-Rent Appeal No, 10 of 1979, between the same parties, relating to R. C. Case No, 3342 of 1976. As common facts and law points are involved in the said appeal. Consequently Second Appeal No, 253 of 1980 is also dismissed, with no order as to cost and judgment dated 4-5-1980 of the learned Vlth Additional District Judge, Karachi, passed in 1st Rent Appeal No, 10 of 1979 is also maintained.
16. However, since the ejectment applications in question are pending since 1975, I direct the learned Rent Controller to dispose off the said applications within 8 week's from the receipt of the copy of this order, in accordance with judgments dated 4-5-1980 of the learned 1st Appellate Court, in accordance with law.
17. Before parting with the above appeals, I would like to mention, that any observations made by me in respect of any fact involved in the ejectment applications in question are tentative and as such the learned Rent Controller shall not be bound by such observations and will be free to decide any issue, on the basis of the evidence, that may be led by the parties before him.