' Ghulam Nabi, the predecessor-in-interest of respondents Nos.1 and 2, rented out shop No,B-I-65- 46/2 situated at Kamoke, District Gujranwala to Muhammad Amin, the predecessor-in-interest of the petitioners at the monthly rent of Rs,
115. On 11-2-1980, Ghulam Nabi filed an ejectment petition in the Court of the learned Rent Controller, Gujranwala on the basis of personal requirement. The ejectment petition was dismissed vide order dated 19-3-1981 by the learned Rent' Controller, Gujranwala on the basis that he had not given notice to the tenant. On 18-11-1981, Ghulam Nabi landlord filed another ejectment petition before the learned Rent Controller, Gujranwala against Muhammad Amin, the predecessor-in-interest of the petitioners on the basis that he wanted to build a Choubara over the shop in dispute. This petition was accepted by the learned Rent Controller, Gujranwala vide order dated 20-4-1983. Muhammad Amin died on 24-4-1983. The present petitioners as successors-in-interest of Muhammad Amin filed an appeal which was dismissed by the learned Additional District Judge, Gujranwala vide order dated 24-1-1984.
Thereupon they filed W.P. No, 2180/84 which came up for final hearing on 27-3-1985 and the same was accepted and the ejectment application of Ghulam Nabi was dismissed. Ghulam Nabi also died and his successors-in-interest namely Abdul Ghafoor etc. Including respondents Nos.1 and 2 filed third ejectment petition before the learned Rent Controller, Gujranwala on ]0-12-1985. This ejectment petition was dismissed on 12-3-1988 by the learned Rent Controller, Gujranwala. An appeal against this order was also dismissed on 20-12-1988 for non-prosecution by the appellate authority, Gujranwala.
2. On 24-3-1991 only Muhammad Aslam and Mst. Ghulam Zohra the successors-in-interest of Ghulam Nabi filed fourth ejectment petition. During the pendency of this ejectment petition one of the successors-in-interest of Ghulam Nabi, namely, Muhammad Latif on 29-12-1991 through a registered sale-deed sold the shop for a sum of Rs, 40,000 to one of the petitioners, namely, Shafiq- ur-Rehman. The petitioners filed written statement on 7-3-1992 stating therein that they had purchased share of Muhammad Latif, one time landlord of the property and therefore, had acquired status of co-owner and no ejectment order could be passed against him. They further moved an application on 25-3-1992 stating therein that no relationship of landlord and tenant existed between the parties and the learned Rent Controller had no jurisdiction to. Try the ejecment application without framing issues and adjudicated upon the same. The respondents Nos.1 and 2 filed a reply stating therein that the application dated 25-3-1992 was completely groundless and frivolous. The tenancy has already been admitted by the petitioners and on the basis of a part sale-deed they cannot affect the maintainability of the present ejectment petition as the basic law is that once a tenant is always a tenant.
3. This is relevant to mention that the learned Rent Controller framed issues on 7-3-1992. Vide order dated 22-5-1994 the learned Rent Controller, Gujranwala gave a finding that during the pendency of the instant ejectment petition if some share has been purchased by the tenant he becomes a co-sharer and it cannot change the position of the tenancy even if it is presumed that he is a co- sharer, he should get a partition of the shop in question as the present tenant had purchased a share of one son of Ghulam Nabi. During the pendency of the present ejectment petition he has become co-sharer but the status of tenancy of rest of the respondents has not changed and that the relationship of landlord and tenant subsisted and he fixed the case for hearing on 14-6-1992.
4. Against this order the present petitioners have filed the instant writ petition on the basis that in view of the sale-deed dated 29-12-1991 by Muhammad Latif son of Ghulam Nabi, one of the legal heirs of the original owner to Shafiq-ur-Rehman petitioner, has changed status of tenancy of Shafiq-ur-Rehman as he has become the owner in the disputed shop. The learned Rent Controller found contrary to the decision of the Hon'ble Supreme Court in Syed Izhar-ul-Hassan Rizvi v. Mian Abdur Rehman and others (1992 SCM R 1352) that a tenant purchasing part of the property of his landlord becomes a co-sharer in the said property and cannot be adjudicated under section 13 of the Rent Restriction Ordinance the only remedy is to seek the property through a suit for partition.
The learned Rent Controller could not by-pass this judgment and hold the existence of landlord and tenant without giving an opportunity of adducing evidence on this issue and that there is no estoppel for the tenant to deny the title of the landlord if the owner extinguishes or the tenant acquires the right of ownership and the tenant could plead his right of defence. He further submitted that the application of the petitioners dated 25-3-1992 could not be dismissed simply on the basis of the arguments. The learned Rent Controller had no jurisdiction to decide the application without recording evidence or without perusing the documents in this behalf and that the parties are now litigating in the Civil Court as Mst. Zohra and Muhammad Aslam respondents have filed a suit for declaration challenging the sale-deed dated 29-12-1991 on the basis of the rights of the respondents/plaintiffs being fraudulent, collusive, illegal and ineffective as Muhammad Latif alongwith Pervez Iqbal, Muhammad Saleem, Nasir Ahmad, Wasim Asif sons and Mst. Parveen Bibi, Nasreen Bibi, Rehana Kausar daughters of Abdul Ghafoor co-sharers vide registered sale-deed dated 13-1-1991 sold the shop in question to one Haji Muhammad Islam son of Haji Chiragh Din and as there was nothing left with Abdul Latif he could not enter into the subsequent transaction of sale on 29-12-1991 in favour of Shafiq-urRehman. As such the whole transaction of sale is a nullity in the eyes of law. Moreover the description given in the registered sale-deed dated 29-12-1991 in favour of the petitioners is the description of the property under a house and not the shop in question. Similarly Shafiq-ur-Rehman has also filed a suit for permanent injunction against Muhammad Aslam and Mst. Ghulam Zohra in respect of the shop measuring 86-6/7 feet comprising Khasra No,5385/2776 according to Khewat No,1675, Khatuni No,1821 vide Mutation No, 15130 situated at Ghalla Purana, Post Office Kamoke, District Gujranwala. Both these suits are pending in the Court of the learned Senior Civil Judge, Gujranwala. He has submitted that the learned Rent Controller has now no authority to decide the titles of the parties as the titles of the landlord and that of the tenant are subjudice before the Court of competent jurisdiction and in this way either the proceedings in the ejectment application be stayed and await the decision of the Court of competent jurisdiction or the ejectment petition be dismissed and railed in view of the decision of the Civil Court.
5. The learned counsel for the respondents Nos.1 and 2 has challenged the maintainability of the present writ petition stating therein that against an interlocutory order of the Rent Controller no forum of appeal, revision or writ is available; that there is an alternate remedy available to the petitioners to file an appeal if they consider the present writ petition as decided in terms of section 15 of the Punjab Urban Rent Restriction Ordinance, 1959. Learned counsel has also submitted that the cases of title are pending in the Court of the learned Senior Civil Judge, Gujranwala in respect of the questioned sale and also in respect of the title of the parties. As the sale-deed mentioned by the petitioners dated 29-12-1991 is not a sale-deed in respect of the shop the description shown in the said sale; it is that of a house and not a shop and moreover, Muhammad Latif along with other co-sharers had entered into a transaction of sale and vide a registered sale-deed sold the shop in question to one Haji Muhammad Islam son of Chiragh Din. In view of these circumstances the order of the learned Rent Controller is completely within his jurisdiction.
6. I have heard both the parties, perused the record and have gone through the findings of the learned Rent Controller. Before I pass a judgment on the merits of the case, I have to meet the preliminary objection about the maintainability of the present writ petition as agitated by the adverse party. From a bare perusal of the impugned order it seems that the learned Rent Controller had framed issues on the basis of the pleadings of the parties but while deciding the application given to him on 25-3-1992 he has without affording an opportunity of producing evidence on the issue relating to existence or non-existence of the relationship of landlord and tenant by one stroke of pen decided that the relationship of landlord and tenant does exist although both the parties were taking entirely different stand in respect of their titles of each other and are now litigating in the Civil Court which is the Court of competent jurisdiction, under different titles, the learned Rent Controller was under the bounden duty of law to ask the parties to produce evidence on the issue of relationship of landlord and tenant thereafter could decide whether the jurisdiction vested in him or not. By one stroke of pen he could not decide I that the relationship of landlord and tenant existed between the parties while he had no evidence before him that the landlord claiming the ejectment of the tenant had proved his ownership beyond reasonable doubt. Since the ejectment C petition is still resting in his Court it cannot be held that he has finally decided the ejectment application.
'7. Appeals in ejectment cases are dealt with by section 15 of the Punjab Rent Restriction Ordinance, 1959. The said section 15 (as substituted by Punjab Ordinance IX of 1979) restricted the right of the tenant only to one appeal. The relevant provisions under the Ordinance were as sunder:-- "15.--(1) Any party aggrieved by an order of the Controller finally disposing of an application made under this Ordinance may, within thirty days of the date of such order, prefer an appeal in writing to the District Judge having jurisdiction over the area where the building or rented land in relation to which the order is passed, is situated:
(1) ............................
(2) ............................
(3) ...................................
(4) .........
(5) ............................
(6) ............................
(7) The order of the Controller, subject to the result of appeal, if any, shall be final and shall not be called in question in any Court of law, including the High Court, by suit, appeal or otherwise."
' In the year 1990 by virtue of Ordinance XIII of 1990, the Punjab Urban Rent Restriction Ordinance, 1959 was further amended and the right of second appeal to the High Court was conferred on tenants of "non-residential buildings". This change was affected by substituting the existing provisions of subsections (6), (7) and (8) of Ordinance IX of 1979 with the following new provisions:- - "(6) In the case of a "non-residential building", a person aggrieved by an order passed on appeal by the appellate authority may, within 30 days from the date of the said order, prefer an appeal in writing to the High Court."
Such an appeal under this subsection shall be heard and determined as an appeal from an appellate order under section 100 of the C.P.C.:
(7) Unless it dismisses the appeal in limine, the appellate authority or the High Court, as the case may be, shall decide the appeal after sending for the record of the case from the Controller and after giving the parties an opportunity of being heard and if necessary, after making such further inquiry as it thinks fit."
8. Since the order passed by the learned Rent Controller on 27-5-1994 is ' not a final decision of the ejectment application, he has exceeded his jurisdiction by deciding the existence of relationship of landlord and tenant by virtue of his stroke of pen after summarily hearing the arguments. This order, to my view, is completely without jurisdiction and as no appeal is provided against an order which is a nullity in law the writ petition is competent.
9. The requirement of the relevant law as prescribed in the Rent Restriction Ordinance is that the Rent Controller is seized of the power to decide the question of relationship of landlord and tenant against the tenant. When the landlord has not been able to establish his position as a landlord beyond reasonable doubt then there will be two courses open for the Rent Controller (1) either he will decide the issue against the landlord and advise him to set his title established in a Court of competent jurisdiction because there is no bar for a subsequent application of ejectment filed by the landlord after establishing his title as a landlord. Section 15 (7) of the Rent Restriction Ordinance does not operate as a bar. In the present situation even the landlord who has filed the ejectment petition has gone to the Civil Court for establishing his title in respect of the question of sale-deed in question in favour of one of the petitioners, namely, Shafiq-ur-Rehman and the tenant has also taken recourse before the Court of the competent jurisdiction to establish his co-ownership in the joint tenancy in such a situation if the Rent Controller decides the question of existence of landlord and tenant without granting leave to the parties to seek declaration of their title from the Court of general jurisdiction this will be a statutory bar in the circumstances because in any Tribunal or before any statutory authority which exercises quasi-judicial functions whenever it is required to determine any question which under the law it has the authority to determine and decides the question arising before it and thereafter spares the parties from the ordeal of rushing from one forum to another. However, in the event when the Rent Controller feels that a complicated question regarding a protracted inquiry would be necessary for deciding the title of the parties and especially when the issue regarding existence of landlord and tenant solely it will not be possible for the Rent Controller to decide the case without deciding the basic question involved regarding the title because the primary requirement of the Rent Restriction Ordinance is that it is the landlord who has to establish his position as a landlord beyond reasonable doubt. In this situation the proper course for the Rent Controller would be to decide the issue against the landlord and let him first get his title established before a Court of general jurisdiction and then seek the ejectment.
Muhammad Ismail v. Israr Ahmad (PLD 1961 (W.P.) Lah. 601), Rehmatullah v. Ali Muhammad (1983 SCM R 1064) and Muhammad Latif v. Additional District Judge, Lahore (1993 M LD 1631) are the elaborate judgments on this point. This is worth mentioning that the respondents in their written statement have categorically stated that the co-owner Muhammad Latif alongwith other co- sharers have entered into a transaction of sale on 13-1-1991 in respect of the disputed shop in favour of Haji Muhammad Islam son of Haji Chiragh Din and the ownership vested with aforesaid Haji Islam who has not filed the ejectment petition.
10. Keeping in view all the judgments of the Supreme Court, the aforesaid facts and circumstances of the case and the law, I set aside the order dated 27-5-1994 passed by the learned Rent'
Controller, Gujranwala being the outcome of excess of jurisdiction and passed without lawful authority and remand this case back to the learned Rent Controller, Gujranwala with the direction either to await for the decision of the Court of general jurisdiction where the parties themselves have gone and litigating their respective titles or to record the finding against the landlord and direct him to seek ejectment petition after establishing his title before the Court of general jurisdiction beyond the reasonable doubt as directed by the Hon'ble Supreme Court in Rehmat Ullah v. Ali Muhammad and others (1983 SCM R 1064).
11. With these observations the parties are directed to appear before the learned Rent Controller, Gujranwala on 20-11-1994.
12. There shall be no order as to costs.