' This is an appeal against the order, dated 18-12-1982 passed by the learned Xth Senior Civil Judge and Rent Controller, Karachi in Rent Case No. 94/1980 ordering of striking off the appellant's defence.
' The brief facts leading to the filing of the above appeal are that the respondent filed above rent case for ejectment on the grounds of default in payment of rent and personal requirement. The above application was resisted by the present appellant and inter alia it was pleaded that there was no relationship of landlord and tenant between the parties as the appellant was in possession in pursuance of a Sale Agreement, dated 27-3-1978, which was executed by the owner of the quarter in question. It seems that a preliminary issue as to the question of relationship was not framed by the learned Rent Controller. The respondent filed an application under section 16(1) of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) for a direction to deposit the arrears of rent and current rent. The above application was also resisted by the appellant on the ground that there was no relationship. The learned Rent Controller after holding summary inquiry passed above tentative rent order without framing any issue on the question of relationship and without recording any evidence. As the appellant had failed to comply with the above tentative rent order, the learned Rent Controller passed the order under appeal upon the respondent's application under section 16(2) of the Ordinance. The appellant being aggrieved by the above order has filed the present appeal.
2.(a) In support of the above appeal Mr. Rizvi, learned counsel for the appellant has urged that it was not open to the learned Rent Controller to pass a tentative rent order without first framing a preliminary issue and without providing opportunity to the parties to lead evidence on the above question and, therefore, the tentative rent order suffers from above illegality and its non- compliance is of no consequence.
(b) On the other hand Mr. Maroof Ali Khan, learned counsel for the respondent has contended as follows:-
(i) That no preliminary issue was framed by the learned Rent Controller, but he allowed the parties to file documents in support of their respective contentions and after being satisfied on the question of relationship passed the above tentative rent order.
(ii) That the Sale Agreement, dated 27-3-1978 relied upon by the appellant had died its natural death as the appellant had failed to pay the balance of the price within a period of 4 months provided in the above agreement and that factually the appellant could not have filed even suit.
3.(a) The basic question in the present case is, as to whether under the Ordinance the learned Rent Controller can decide the question of relationship without recording any evidence.
' Mr. Rizvi has referred to the following cases in support of his contention that without framing a preliminary issue and without recording evidence, it was not open to the learned Rent Controller to have decided the question of relationship summarily while passing the tentative rent order:-
(i) Hafiz Muhammad Ikram v. Muhammad Mushtaq PLD 1978 Lah. 996 in which a learned Single Judge of the Lahore High Court held that even in an ex parte proceeding, the Rent Controller is bound to satisfy himself as to the question of relationship before passing an ejectment order.
(ii) Mst.-Khurshid v. Haji Hadi and 4 others PLD 1979 Quetta 39. In the above case a learned Single Judge of the Baluchistan High held that a Rent Controller shall have jurisdiction to entertain Je an application under the late West Pakistan Urban Rent .ction ,Ordinance, 1959 upon existence of relationship of landlord ano tenant and :hat in case of dispute, it is incumbent upon him to frame an issue as to the existence or non-existence of such relationship irrespective of the fact whether objection is raised by the tenant or by the landlord.
(iii) Ghulam Hussain v. Abdul Rehman and 2 others PLD 1982 Lah. 519, in which a learned Single Judge of the Lahore High Court has held that the order for deposit of rent passed by the Rent Controller without deciding the question of jurisdiction was without lawful authority and therefore a constitutional petition filed by the tenant was allowed.
(b) On the other hand Mr. Maroof Ali Khan has referred to the case of Muhammad Khalid v.
Muhammad Munir and 2 others reported in PLD 1982 Lah.
630. In the above case a writ petition filed by the tenant against the ejectment order passed by the Rent Controller was dismissed.
' It may be observed in the above case the Rent Controller had framed a preliminary issue on the question of relationship and after recording the evidence and after recording finding that the relationship of landlord and tenant existed passed the ejectment order. In the above case the tenant had relied upon a sale agreement in his favour, on which finding recorded by the learned Rent Controller was that the tenant had failed to perform his obligations thereunder.
4. It may be observed that there is no provision in the Ordinance requiring a Rent Controller to frame a preliminary issue on the question of relationship and, therefore, it can be urged that failure to frame a preliminary issue on the above question will not be fatal to the passing of a tentative rent order. In this regard, it may be pertinent to point out that there was no provision even in the late West Pakistan Urban Rent Restriction Ordinance, 1959, requiring the framing of a preliminary issue but the consistent view of the Superior Courts was that the question of relationship was a jurisdictional fact, upon which the jurisdic tion of the Rent Controller would depend and, therefore, the same should be decided as a preliminary issue.
' I am inclined to hold that the above view holds good even under the Ordinance. A preliminary issue on the question of relationship cannot be decided in summary manner without providing parties an opportunity to lead evidence. It may be observed that whenever a summary enquiry is permissible under the Ordinance, it has been expressly provided so. In this regard, reference may be made to sections 14 and 16 of the Ordinance. Under the former section an application for ejectment is to be disposed of after holding a summary enquiry in contrast to a regular trial of an application for ejectment under section 15 of the Ordinance. Similarly a tentative rent order is to be passed under section 16 of the Ordinance after holding a summary enquiry. But the question of relationship cannot be decided without providing opportunity to the parties to lead evidence.
' I am, therefore, of the view that in the instant case the tentative B rent order could not have been passed without first deciding the question of relationship in the manner referred to hereinabove.
' I have deliberately refrained from commenting upon the merits of contention of Mr. Maroof Ali Khan that the sale agreement, dated 27-3-1978 relied upon by the appellant had died its natural death, for the reason that the same may be relevant consideration before the Rent Controller.
5. I, therefore, allow the above appeal with no order as to costs.
I would direct the Rent Controller to frame a preliminary issue on the question of relationship and to provide opportunity to the parties to lead evidence and to decide the same within a period of 4 months from the receipt of a copy of this order. If the question of relationship is decided in affirmative, then to pass a fresh tentative rent order.