' FAIZ MUHAMMAD KHAN, J .-Bungalow No, 540, situated at Colony Road in Abbottabad Cantonment, is undisputedly owned by Mst. Safia Begum, respondent No,
1. It was requisitioned by the concerned authorities under the Cantonment (Requisition of Immovable Property) Ordinance, 1948 some time back. Compensation by way of rent to be paid to the owner for the premises was assessed at the rate of Rs, 850 per month. The record reveals that the requisition made under the relevant provisions of law was in remain operative for the period from 24-3-1979 to 23-3-1982. Thereafter, as frankly conceded by Mr. Ghulam Mustafa Khan, Advocate representing the petitioner, no order has been made by the competent authority extending that period. However, before the expiry of the period during which the premises was to remain requisitioned by a valid order, the owner of the property (vtst. Safia Begum) applied on 18-3-1980 to the Rent Controller having jurisdiction in the area for ejectment of the Military Estate Officer, Abbottabad from the said premises. This petition was filed under the Cantonments Rent Restriction Act, 1963. The grounds taken by the owner- landlady therein were that the respondent was rent defaulter and that the premises was needed for the personal use of the owner as one of her sons, Shahzad by name, was to be married and was to be provided a separate living accommodation (we have now been informed that he has married and is now living with his parents). The petition was contested by the respondent on many grounds, one of which was that the Rent Controller had no jurisdiction to hear the petition.
2. Before the Settlement of issues and upon an application submitted on 14-9-1980 by the landlady, the Rent Controller directed the respondent before him to deposit in his office the arrears of rent, amounting to Rs, 12,750 which were, prima facie, due from him. This order was complied with by the respondent without any protest. Thereafter, issues were framed by the Rent Controller, including that of jurisdiction, and the petition proceeded for adjudication upon merits. However while the proceedings had not been concluded that the respondent failed to deposit the monthly rent of July, 1981. This fact was brought to the notice of the Rent Controller by the landlady with a request that the defence of the respondent be struck off, as was required by law. The Rent Controller directed the respondent on 23-8-1981 to show cause as to why this default was made by him and what were the reasons therefor. The record shows that no good cause was shown for this default and the learned Rent Controller, on 13-9-1981, while striking off the defence of the respondent directed him to put the landlady in possession of the disputed premises within 60 days of the date of order.
3. The respondent was aggrieved by the order so made by the Rent Controller and he went up on appeal to the Court of the learned District Judge where also the point of jurisdiction was pressed and argued. But the learned District Judge, finding no substance in the appeal, vide his order, dated 27-5-1982, dismissed it, leaving the parties to bear their own costs.
4. Since no other remedy was available to the aggrieved respondent (petitioner herein), he has filed this Constitutional petition. The only ground taken up in this petition is that when the question of jurisdiction was raised by the petitioner in his written defence, neither could the Rent Controller, before answering that question in the affirmative, make an order directing the petitioner to deposit the arrears of rent by monthly rent in his office, nor could the non-compliance of such an order made by him, which was without jurisdiction, be visited with the consequence which were being faced by the petitioner. It is also mentioned in this petition that the learned District Judge, before whom the point of jurisdiction was raised in appeal, even did not care to advert to that argument and simply: maintained the finding of the Rent Controller, which findings, being without jurisdiction, was illegal.
5. Ghulam Mustafa Khan, Advocate appeared on behalf of the petitioner and Malik Fazal Hussain, Advocate appeared on behalf of respondent No,
1. They were heard and the record of the case perused with their assistance.
6. The learned counsel for the petitioner contended that since the disputed premises had, been requisitioned under the Cantonment (Requisition of Immovable Property) Ordinance, 1948 and since there is contained in this law an ouster clause, the ejectment petition filed by respondent No, 1 before the Rent Controller could not, therefore, lie nor could be heard by him for want of jurisdiction.
He also argued that the plea relating to jurisdiction having been raised in the written statement tiled by the petitioner hereinbefore this Rent Controller, it was his duty to have first given finding thereon, and only in the event of non-acceptance of that plea the Rent Controller could give direction to the petitioner herein for the deposit of rent or arrears of rent and only then, if the rent was not deposited, the question of default could arise. The learned counsel further contended that the Rent Controller having no jurisdiction from the very beginning, all orders made by him were nullity in the eye of law and could, therefore, be struck down by this Court in its Constitutional jurisdiction.
7. The learned counsel for respondent No, 1 argued that it was established on the record that the petitioner was rent defaulter, that in compliance with the order of the Rent Controller he deposited the arrears of rent and subsequent monthly rent without any protest and without challenging that order before the higher forum at that time and having once submitted to the jurisdiction of the Rent Controller, he could, neither in law nor in equity, challenge that order subsequently in this Constitutional petition. The learned counsel further contended that the period upto which the requisition order made by the competent authority was to remain in force had expired on 23-3- 1982 and thereafter, in absence of extension, the petitioner remained in occupation of the disputed premises without such a cover, not even paying the rent (compensation) assessed therefor, which was for less than the amount at which property of this type could now be hired. He also argued that the principle "who seeks equity must do equity" was very much attracted to the facts of this case and since the petitioner was in this Court not with clean hands, discretionary relief may be refused to him.
8. We have considered the arguments of the learned counsel for the parties in the light of the material available on the record. The period for which the property in dispute was to remain requisitioned had expired long before the filing of this writ petition. It is undisputable that when the jurisdiction of a Court or Tribunal hearing a matter is challenged in proceedings before it, and the objection on the face of it is neither frivolous nor vexatious, then, before making an order respecting the merit of the case, such Court or Tribunal must first dispose of that objection and it can only proceed with the case further and pass an effective order when the decision is that it has jurisdiction in the matter. In this case, however, we have found that the petitioner was rent defaulter for a long period, and the rent (compensation) was deposited by him under orders of the Rent Controller. We have also been told that the petitioner is even now not paying the rent (compensation) to the landlady (respondent No, I) in respect of the disputed premises which would mean that the landlady is being put to unnecessary botheration and trouble and she is being refused the rent (compensation) which is otherwise legally due to her. It is a matter of common knowledge that the relations between the landlord and tenant can remain cordial when both the parties respect each other's rights and obligations and when the landlord/landlady is denied the rent of the premises, or the rent is paid to him/her after long delays or intervals, as in this case, the Court sitting in its Constitutional jurisdiction will not be favourably inclined towards the tenant, no matter he may be Government. Further, in the event of acceptance of this writ petition what we could do was to have remanded the case to the Rent Controller for first determining the issue relating to jurisdiction and then the other issues arising out of the pleadings of the parties, and this order in our view, would have only prolonged the agony of the parties in a matter the result of which, on the ground of default alone, was already known. This we are saying because on the expiry of the period of requisition the relationship between the parties came to be regulated by the provisions contained in the Cantonment Rent Restriction Act, 1963. Also, the petitioner has remained in occupation of the disputed premises and is continuing so even though order of ejectment had been passed against him on 13-9-1981 and even though there was no proper sanction for extending the period of requisition after 23-3-1982. In such circumstances, it should be the end of it. In view of what has been said before, we would not exercise our Constitutional jurisdiction in favour of a defaulter of rent or occupier of premises without any legal right.
9. For the reasons aforesaid, this writ petition is hereby dismissed. We shall, however, make no order as to costs.