ZAFFAR HUSSAIN MIRZA, J.-- Leave to appeal was granted, in this case, against the judgment of the Baluchistan High Court, Quetta, dated 23rd September, 1984, in order to consider, whether the High Court was justified, in the facts of the case, in setting aside the order of the Rent Controller striking off the defence of the respondents/tenants and directing their ejectment, on the ground that the latter had raised a plea for want of jurisdiction and lack to relationship between the parties entitling the appellant to maintain eviction application.
2. The facts so far as relevant to the question under consideration in this appeal are that the appellant filed an application for eviction of the respondents from the premises in dispute on the ground of subletting, non-payment of rent and bona fide personal requirement. On 18th April, 1983, the learned Rent Controller framed as many as 8 issues on the pleadings of the parties but the material issues for the present purpose are issues Nos.1 and 2 which read as under:- "(1) Whether the application is not maintainable in view of P/O A of rejoinder?
(2) Whether the premises in dispute was let out solely for the purpose of dairy business?"
On the same day the learned Rent Controller also passed an order under section 13 (6) of the Baluchistan Rent Restriction Ordinance, directing the respondents to deposit arrears of rent as well as the future rent. On 17th December, 1983, the appellant moved the Rent Controller for striking off the defence of the respondents on account of their failure to deposit rent in terms of the order under section 13 (6). The learned Rent Controller accepted this application and struck off the defence of the respondents as well as passed orders of eviction against them vide order dated 12th March, 1984.
3. Being aggrieved the respondents filed an appeal in the High Court of Baluchistan, Quetta, which was allowed with the result that the order passed by the Rent Controller was set aside and the case was remanded to the Rent Controller for fresh decision in terms indicated by the High Court in the following part of the judgment:- "Since the order for deposit of the rent had been made by the Rent Controller without deciding the question of jurisdiction against the petitioner by recording evidence or otherwise, his order in this behalf was without lawful authority. Resultantly the order of eviction passed against the petitioner, due to his making default in the compliance of order for deposit of rent deserves to be quashed."
Specific pleas have been raised by the appellants in their written statements. Issues have been framed on the pleadings of the parties. The Controller is vested with the jurisdiction under the provisions of Rent Restriction Ordinance in case where the relationship of landlord and tenant exists between the parties and the eviction is sought from the building or the rented land. .The Rent Controller had no authority to make an order for deposit of the rent under section 13 (6) or to proceed in the matter before resolving these points. The Controller has not decided the preliminary issues. I, therefore, set aside the orders made by the Controller under section 13 of the Urban Rent Restriction Ordinance. The Controller should first decide issues No.1 and 2 after taking evidence of both the parties."
4. Now the reasons that prevailed with the learned Judge in the High Court to set aside the order of the Rent Controller were that the aforesaid two issues framed on the pleadings of the parties specifically raised the question of the jurisdiction of the Controller, and therefore he was not competent to proceed to pass an order under section 13 (6) without first determining the preliminary question whether he had jurisdiction to entertain the ejectment application. Issue No.1 was framed on the pleas raised by respondent No.1 (defendant) in para A of the written statement which reads as follows:- "That the application for eviction of the respondent No.1 is not maintainable because about 25 years back the applicant's father had leased out a vacant plot to the replying respondent for raising construction and it was also agreed by the father of the applicant to give on rent the superstructure raised by the replying respondent on the said plot. The replying respondent raised construction thereof as the replying respondent is exclusive owner of the superstructure which is six rooms residential house in which the replying respondent is himself residing and is addition to 12 rooms and three barracks used as dairy. The father of the applicant had leased out this vacant plot for raising construction about 25 years before and all the existing construction had been raised since long in the lifetime of the father of applicant who never objected, and it was also well within the knowledge of the applicant."