1. ZAFFAR HUSSAIN MIRZA, J.---This is an appeal arising out of judgment of a learned Single Judge of the Sindh High Court, dated 19th September, 1985, whereby the Constitution petition of the Government of Sindh, respondent No.1 herein, was accepted, as a result of which thei judgment and order of eviction of the said respondents as well as the tentative rent order passed by the Additional Rent Controller of Rents, Karachi Cantonment, Karachi. Respondent No.3 were set aside and the proceedings for ejectment were remanded to the Additional Rent Controller with a direction to decide the preliminary issue between the parties as to relationship of landlord and tenant before proceeding further in the eviction proceedings to pass an order for tentative rent order.
2. The dispute in this case relaies to a building situated on Plot No.84, N.1, Lines, Sadar, Karachi, in which a school called Marie Colaco Secondary and Primary School was being run. On the promulgation of M.L.R. 118 of 1972, the aforesaid school was nationalized and taken over by the Government of Sindh through the Director of School Education, Karachi, with effect from 1st October, 1972.
3. On or about 5th March, 1978 the appellant filed an ejectment application under section 17 of the Cantonments Rent Restriction Act, 1963 (hereinafter referred to as `the Act'), in the Court of the Rent Controller, Karachi Cantonment.
4. The case of the appellant as set out in the ejectment application was that he was the landlord of the said premises and that prior to the nationalization of the school he let out the said premises to the said school under an agreement in writing on a monthly rent of Rs.2.500. He further averred that until the time the school was taken over by the Government, the previous administration of the school used to pay rent to him. However, the Government had failed to pay rent ever since they had taken over the school. The respondent Government resisted the ejectment application. They denied that the petitioner was the landlord of the premises and disputed his claim to title in the building of the school. They mentioned in their written statement that the appellant was called upon to furnish a copy of the alleged agreement of tenancy with the defunct management. But he was not able to produce the same. It was asserted that by virtue of the provisions of M.L.R. 118 the school building which was constructed on land acquired by previous management for educational purposes and as the building was constructed entirely or in part with the grant-in-aid, the same vested in the Government. The Government further took the plea that if the appellant was able to prove the title and ownership then the Government was prepared to pay rent in accordance with the rules. In this behalf it was stated that the quantum of rent was fixed on the basis of assessment of Excise and Taxation Department. The Government also took the plea that the ejectment application was barred under paragraph 3 of M.L.R.118.
5. In the events that happened, on 27th February, 1979, the learned Rent Controller passed the tentative order for deposit of rent under subsection (8) of section 17 of the Act, directing the respondent Government to deposit rent at the rate of Rs.2,070 per month with effect from 5th March, 1975 upto 28th February, 1979 amounting to Rs.99,104.88 on or before 30th April, 1979 and continue to deposit future monthly rent at the same rate.
6. On 20th July, 1981, the respondent Government moved an application under section 3 read with section 17(8) of the Act. But this application was dismissed by the learned Rent Controller vide order dated 6th August, 1981.
7. On 18th November, 1981, the respondent Government moved yet another application before the Rent Controller under section 21 of the General Clauses Act; 1887, requesting for recalling the order, dated 27th February, 1979, passed and--r section 17(8) of the Act, for deposit of rent and to direct the appellant to deposit the amounts withdrawn by him, so that the school building may be repaired, in view of the fact that the Cantonment Authority had served a notice for repairing the school building failing which the same was to be demolished. This application was also dismissed by order dated 24th December, 1981.
8. It appears that on the pleadings of the parties, the learned Rent Controller framed issues on 17th May, 1979, which are reproduced hereunder:--
(1) Whether the application is barred by law?
(2) Whether the opponents have committed default? If so with what effect?
(3) Whether the opponents are liable for eviction?
(4) What should the order be?
9. The parties then produced their evidence and after the parties closed the evidence the case was posted for final arguments. In the meantime, however, on 21st January, 1983, the appellant moved the Rent Controller under section 17(9) of the Act for striking off the defence of the respondent Government pointing out 21 instances of the future monthly rent having been deposited beyond time, from 5th August, 1979 to 5th December, 1982. The respondent Government filed objections to this application in which they categorically pleaded that the application was misconceived and not maintainable in law', as no relationship of landlord and tenant exists between the applicant and the opponent in the light of the documentary as well as oral evidence brought on record'. It was once again reiterated that in spite of opportunity furnished to him applicant had failed to establish his ownership in respect of the school building when the same was taken over by the Government. In paragraph 4 of the memo. Of objections the following specific objection was taken:-- "That the previous order passed by the learned Additional Rent Controller for depositing rent without determining the issue of relationship of a landlord and tenant between the applicant and the opponent and thereafter without recording evidence of the parties op the said issue was a nullity in law and it still continues to be so."
10. Apart from the legal objection, the respondent Government also explained that under the rules governing the Government transactions every payment has to be sanctioned by the A: G., Sindh, Karachi to whom bills are preferred which are scrutinized and cheques prepared for payment.
11. Therefore some delay had taken place in depositing the monthly rent in the Court of the Rent Controller.
12. The learned Rent Controller, even though specifically referring to the challenge thrown at the legality of the Rent Controller's order dated 27th February, 1979, under section 17(8) of the Act, failed to deal with the same and held that the respondent government had not furnished satisfactory explanation that any genuine effort for timely deposit of rent in spite of Government rules was made. In this view of the cases the learned Rent Controller came to the conclusion that the respondent Government had committed wilful default in compliance with the tentative rent order and, therefore, by his order dated 3rd March, 1983, struck off their defence, directing them to hand over the vacant possession of the premises to the appellant immediately.
13. Being aggrieved by the aforesaid order the respondent Government went in appeal before the District Judge, Karachi. In the appeal it was, inter alia, contended that the respondent Government having denied the relationship of the landlord and tenant between the parties, it was incumbent on the learned Rent Controller to have framed an issue on the preliminary point and after determining the same, he could proceed to pass the order for deposit of rent. Learned District Judge repelled this contention holding that it was not necessary for the Rent Controller to frame a specific issue on the preliminary point but conceded that in case such an objection was raised, it must be resolved by the Rent Controller before taking any further action. He expressed the opinion that the Rent Controller was to determine such question about the existence of the relationship of landlord and tenant between the parties on the basis of material available before the Court. In this behalf he observed as hereunder:-- "The Controller is not required to frame a formal issue and to record evidence on that issue in the routine way and go on adjourning the matter for that purpose because that would be contrary to the spirit of the authority reported as PLD 1963 Lah. 390. Parallel provisions are contained by subsection (8) of section 17 of the Cantonments Rent Restriction Act, where it is mentioned that if there be any dispute as to the amount of rent due, the Controller shall determine such amount approximately. Similar finding of the Controller about the relationship between the parties, is also of tentative nature. I, therefore, hold that no illegality was committed by the Trial Court if no issue was framed about the relationship between the parties.
14. The learned District Judge then referred to the pleas taken in the written statement and to the evidence led by the parties on the issues and gave a finding that it was sufficiently established from the evidence on the record that the appellant was the landlord of the premises and that respondent Government had failed to pay rent to him. Accordingly the appeal was dismissed vide judgment dated January, 1985.
15. As at the relevant time there was no further right of appeal, the respondent Government challenged the order of eviction passed against them in a Constitution petition before Sindh High Court. In a detailed and exhaustive judgment the learned Single Judge, after adverting to the contentions raised before him on behalf of the parties held that the law clearly lays down that before passing of a tentative rent order the Controller has to determine that the relationship of landlord and tenant exists between the parties. As in the present case the respondent Government had denied the relationship of landlord and tenant between the parties the learned Judge came to the conclusion that the order passed by the learned Rent Controller, without a proper inquiry to determine the preliminary question was void and illegal. He also disagreed with the view taken by the learned District Judge that the Rent Controller was in the first instance required to tentatively determine the question of relationship of landlord and tenant. In the view expressed by the learned Judge the Rent Controller is required to hold a formal inquiry in this question, for the reason that it is a jurisdictional fact which gives the Rent Controller the jurisdiction to proceed further in the matter. On this reasoning the learned Judge held that the order striking off the defence of the respondent Government on the basis of such void order was not sustainable.
16. Leave in this case was granted to determine the question whether the learned Judge in the High Court, in the circumstances of this case, was right in holding that the order passed by the learned Rent Controller was in excess of his jurisdiction as to be a nullity in law.
17. Mr. J.H. Rahimtoola, learned counsel for the appellant raised the following contentions:--
(i) that in view of the fact that no unequivocal plea was raised by the respondent Government in the written statement raising the question of relationship of landlord and tenant, the Rent Controller was not bound to determine such question as a prerequisite for passing the tentative rent order under subsection (8) of section 17 of the Act.
(ii) that at any rate a Rent Controller is not required to decide. Such a preliminary issue merely because the same is raised unless he is satisfied that the plea has been raised on genuine grounds.
(iii) that in the alternative even assuming the plea was properly raised but the question was not determined before passing the order under section 17(8), the respondent Government was debarred from raising such a plea, firstly because the order was accepted and acted upon and secondly because even at the time of settlement of issues the respondent did not press for framing such issue.
(iv) that the learned Judge in the High Court while holding that the question of relationship of landlord and tenant was not determined in the present case, had totally ignored the fact that a finding on this issue was recorded by the Appellate Court.
(v) that the principle laid down by case-law regarding the superstructure built upon a basically illegal order was itself vitiated, was not attracted to the appellate judgment which was not based on the ejectment order, but the Appellate Court had independently considered the question and come to the finding in favour of the appellant. The judgment of the Appellate Court was therefore, not amenable to writ jurisdiction, as the District Judge was acting in his capacity as a Court of law and not as a Tribunal.
18. In respect of the first contention it was submitted by the learned counsel for the appellant in support of the validity of the order passed by the learned Rent Controller under section 17(8) dated 27th February, 1979, that at the hearing when the said order was passed no one on behalf of the respondent Government was present, that the said Government went alongwith the order by acting upon it and that the question was specifically raised for the first time after the application moved by the appellant for striking off the. Defence was submitted. In this regard we would like to point out certain special features of this case. The argument of the learned Advocate for the appellant proceeds on the assumption that the learned Rent Controller took the view after applying his mind to toe pleadings that no serious question with regard to the preliminary jurisdictional fact of lack of relationship of landlord and tenant was raised. However, this is not the position taken by the learned Rent Controller himself. In this connection it may be pointed out that, on the contrary, learned Rent Controller expressly held that he had determined that question in his order, dated 17-2-1979. This is clear from his order dated 20th July, 1981, whereby he disposed of the application of the respondent Government under section 3 read with section 17(8) of the Act. In this order he made the following revealing observations:-- "Furthermore, I do not find any force in the application dated 20th July, 1981, filed by the Advocate of the opponent as the relation between the landlord and tenant has already been established by my order dated 27-2-1979."
19. It will, therefore, not be permissible for the learned Advocate to justify the order on the basis that the question was not raised unequivocally and genuinely in the written statement or otherwise; so that it was not necessary to be determined. Even when this question was specifically raised, in the objections to the application under section 17(9) of the Act and was expressly noted by the learned Rent Controller in his order dated 3rd March, 1983, it was totally ignored and nothing was stated in the said order with regard to this preliminary objection about the legality of the order dated 27th February, 1979. This was presumably done because in the earlier order, referred to above, the learned Rent Controller had taken the position that the question of relationship of landlord and tenant between the parties had been determined by order dated 27th February, 1979. In this view of the matter the only question would be to see whether in the order dated 27th February, 1979 or before it the learned Controller had properly determined the question raised, so as to assume jurisdiction in the proceedings and pass the tentative rent order.
20. In this connection we have perused the said order but we do not find anything in that order which purports to record the finding that there exists relationship of landlord and tenant between the parties. From the tenor of the order it appears that the question had not been addressed by the learned Rent Controller directly. The only relevant remarks in the order are as follows:-- "I have carefully gone through the contents of the application and the written statement filed by the opponent. The opponent does not dispute their liabilities to pay rent. Their contention as emerging out of submissions made in the written statement is that they are liable to pay at Rs.740 only."
21. It goes without saying that this can hardly be said to be the determination of the preliminary question with regard to the jurisdictional facts as required by law. Even if this is considered carefully it only means that the respondent Government had admitted the in liability to pay rent at a particular rate, but it certainly does not mean that they had made an admission that the rent was payable to the appellant as the landlord. At any rate no such finding has been recorded by the Rent Controller. For establishing the relationship of landlord and tenant, it was necessary for the Rent Controller to hold that not only the respondent Government was tenant in the premises, but that the appellant was the landlord thereof. Seen in this perspective the order does not determine the question as is I being asserted.
22. The learned Judges of the High Court have referred to the denial on the part of the respondent Government of the plea raised by the appellant in the ejectment application that he was the landlord of the premises and that prior to nationalization he was receiving rent under written agreement from the management of the school. Specific reference was made by the learned Judges to paragraph 3 of the written statement in which the plea taken by the Government was that `if title of ownership is proved Government becomes the tenant of the applicant in accordance with the rules'. Such pleas cannot be described as equivocal pleas. In his order dated 27th February, 1979, the learned Rent Controller referred to para. 6 of the written statement, but that cannot be relied upon out of the context alongwith other pleas which specifically raised the question of title of the appellant. In paragraph 1 of the written statement the Government in order to show bona fides had pleaded that the appellant was required to prove his title of ownership, but he failed to do so and did not produce the copy of the alleged agreement between the defunct- management and himself. Learned counsel for the appellant placed great emphasis on the contents of the paragraph 4 of the written statement but it is sufficient to state that the contents do not dilute or wipe off the effect of specific pleas raised with regard to the title and right of receiving rent by the appellant. We are, therefore, unable to agree with the learned counsel that no genuine plea challenging the right of the appellant as the landlord in respect of the premises was raised. Indeed no such stand was taken before the High Court. Learned counsel argued that the appellant had annexed to the application for ejectment letters written to him by the Government which constituted admissions on their part that they were liable to pay rent to the appellant.
23. However, since the question was not taken up and determined specifically with reference to this evidence, it will not retrospectively cure the jurisdictional defect in the order. The letters had to be properly proved in evidence and confronted to the party concerned. The subsequent production of the letters in the evidence will also-be immaterial in the context of the validity of the order passed under section 17(8) of the Act before determining the preliminary issue.
24. On the other hand it has been pointed out by Mr. Khalid Anwar learned counsel appearing on behalf of the respondent Government that the written statement specifically raised the plea of lack of relationship of landlord and tenant between the parties in paragraphs 1, 2 and 3 of the written statement. He urged that the plea was specifically taken that the property standing on the plot which comprises the premises m dispute was constructed with the grant-in-aid and under M.L.R.
25. 118 the same vested in the Government. He also referred to para. 7 of the written statement in which the bar under paragraph 3 of M.L.R. 118 was pleaded, which by necessary implication meant the denial of relationship of landlord and tenant between the parties. According to the learned counsel at no, stage of the proceedings the learned Rent Controller applied his mind am! Decided the question, but disposed of the same even when directly raised by a mechanical reference to the order dated 27th February, 1979 and holding that the question stood determined. He emphatically argued that up to this time even when the evidence of the parties stand closed on the merits of the case, the appellant has failed to produce evidence which ought to be in his possession that he was the owner of the premises and was receiving the rent from the previous management. From what has been stated above it appears to us that an issue with regard to the relationship of landlord and tenant did arise out of the written statement filed by the respondent Government read as a whole which required to be determined by the learned Rent Controller on the basis of material placed before him after notice to parties. Merely because an order for deposit of rent under section 17(8) of the Act was passed and was complied with by the respondent Government, will not be treated as estoppel or acquiescence against the respondent Government. As respondent in the proceedings, they would have refused to obey the said order at their peril to be ousted from the proceedings without their defence taken into consideration. Nevertheless they did raise the point and objected to the legality of the order before the final orders of eviction were passed. So far as the absence of the respondent Government on the date when the tentative order was passed, it did not absolve the learned Rent Controller from the responsibility to examine the written statement and determine the preliminary question if, as subsequently held by him, it was raised in the proceedings. We also cannot subscribe to the view taken by the learned District Judge that. The question of relationship between the parties if raised has to be determined tentatively at the stage of passing the order under section 17(8) of the Act. As explained in several judgments, this is a jurisdictional question and has to be finally determined by the Rent Controller, so far as he is concerned, before he proceeds further in the matter and cannot be deferred to a point of time after passing the order under section 17(8). For all these reasons we find no substance in the first contention of the learned counsel.
26. So far as the second contention is concerned suffice it to say for reasons already discussed above, and the position taken by the learned Rent Controller himself a genuine question was raised with regard to the existence or otherwise of the relationship of landlord and tenant between the parties.
27. There is nothing anywhere on the record that the learned Rent Controller found the plea to be mala fide or vexatious.
28. The question raised in the third contention has already been discussed above. The framing of the issues is the responsibility of the Court and unless it is shown that a particular plea has been abandoned, it cannot be said that the party was debarred from raising the plea which was not specifically put into issues. The trend of cross-examination quite clearly indicates that the plea was pursued even at the stage of evidence. Additionally the question with regard to the relationship is to be tried before the framing of issues, therefore, if that was passed, the respondent Government cannot be denied the right to agitate the same because at the time of the framing of the issues no prayer was made to frame such an issue.
29. Referring to the 4th contention it may be stated that if the learned District Judge considered that the question with regard to the preliminary issue was not determined in accordance with law, he was bound to hold that the order under section 17(8) was necessarily rendered illegal and could not, therefore, sustain the final order of ejectment. Such defect could be cured merely because the learned District Judge took into consideration the determination of the question on the basis of evidence subsequently recorded on the merits of the case. It was urged by the learned counsel for the respondent that the learned District Judge totally ignored to apply his mind to the question of relationship. Be that as it may, we would not like to comment on the evidence adduced by the parties as that may prejudice one or other parties on merits. It is sufficient for us to hold that the legal infirmities which crept into the order under section 17(8) of the Act on account of the failure on the part of the Rent Controller, were not valid by a subsequent consideration of that question by the learned District Judge in the manner he has done, by holding that only a tentative finding was to be given on such issue.
30. With regard to the last contention we may only state that the true effect of the learned District Judge's Judgment has been discussed hereinabove. The Rent Controller being Tribunal of limited jurisdiction, any error committed by him as to the jurisdictional facts, would render proceedings subsequent to the committing of such error bad in law. For rendering the order under section 17(8) to be valid, and capable of producing the consequences prescribed by law, it was necessary for the Rent Controller to determine the preliminary question first. The subsequent determination, even though independently, by the learned District Judge could as explained above, not be pressed to support an order of eviction passed as a consequential order flowing from the illegal order passed under section 17(8). There is, therefore, no substance in this contention as well.
31. Mr. J.H. Rahimtoola submitted that the Government was claiming that as a result of the take over of privately-managed schools under M.L.R. 118, the properties connected with such schools vested in the Government as owners, but this position was abandoned and the owners of such property were accepted as landlords by the Government subsequently. In this connection he referred to the order of this Court dated 25th January, 1990, in civil petitions for leave to appeal No. 18-K of 1989 to 20-K of 1989, where in similar circumstances the Government accepted the owners as their landlords. Mr. Khalid Anwar, has, however, explained that in Syed Zulfiqar ali Gillani v. Chairman, Local Councils, Election Authority 1989 SCMR 1197, the question has been finally set, at rest by this Court as to the true connotation and meaning of the term `vest' occurring in paragraph S of M.L.R.
118. It has been held that such privately-managed schools vest in the Government, not as owners in relation to the buildings wherein the schools were being run but the take over only related to the management of the institution. As the owners in that case were not charging rent from the school management, they were treating the Government as licensee after nationalization. Mr. Khalid Anwar submits that, therefore, the question whether the relationship of landlord and tenant exists between the parties in respect of such nationalised schools would depend upon the facts of each particular case and the mere fact that the school has been taken over under M.L.R. 118 would not ipso facto and by operation of law create relationship of landlord and tenant. This appears to be the correct position but in any case we would leave this matter to be determined by the learned Rent Controller as the case now stands remanded to him for decision.
32. For the foregoing reasons this appeal fails and is accordingly dismissed with no order as to costs.