' AJMAL MIAN, J.---By this common judgment, we intend to dispose of the above two appeals as they involve common question of law. The above appeals are with the leave of the Court against the orders both dated 4-3-1990 passed by a learned Single Judge of the High Court of Sindh in First 'Rent Appeals Nos.130 of 1989 and 126 of 1989, respectively, filed by the appellants against the orders of the Rent Controller granting ejectment in favor of the respondents, dismissing the same. Leave to appeal was granted to consider the question, whether in view of the Notification No VIII(3)SOJ/75, dated 29th A July, 1980, the Rent Controller had no jurisdiction to entertain the rent applications.
2. The facts to be noted are that the respondents in the above two appeals filed rent applications for ejectment on the ground of default and personal requirement. The above applications were resisted by the appellants and inter alia it was pleaded that there was no relationship of landlord and tenant. It seems that in the rent application, which is the subject-matter of Civil Appeal No,735-K of 1990, it was also pleaded that the Rent Controller had no jurisdiction. It further seems that in the above first appeal en account of noncompliance of the tentative rent order, the appellant's defense was struck off, but upon appeal, the High Court remanded the case for determination of the question of relationship. After the determination of the question of relationship in favor of the respondents, the above rent application and the other rent application proceeded resulting into passing of ejectment orders on 30-9-1989 and 3-10-1989 by the Senior Civil Judge/Rent Controller, Tango Muhammad Khan, and the Senior Civil Judge/Rent Controller Tando Allahyar, respectively. Against the above ejectment orders, the appellants filed 'aforesaid F.R.As.
Which were dismissed in limited by a learned Single Judge of the High Court of Sindh. Thereupon, two petitions for leave to appeal were filed in this Court, which were granted to consider the above question.
3. Mr. M.A.I. Qarni, in support of the above appeals, has invited our attention to subsection (2) of section 3 of the Sindh Rented Premises Ordinance, 1979, hereinafter referred to as the Ordinance, and the aforesaid notification dated 29-7-1980 issued thereunder.
4. It may be observed that subsection (2) of section 3 of the Ordinance provides that the Government, may by notification, exclude any class of premises,, or all premises in any area from the operation of all of any of the provisions of the Ordinance, pursuant whereof the aforesaid notification was issued, which reads as follows:-- HOME DEPARTMENT Karachi, the 29th July, 1980 "No VIII(3)S0J/75.---In exercise of the powers conferred by subsection
(2) of section 3, of the Sindh Rented Premises Ordinance, 1979, and in supersession of all orders issued previously, the Government of Sindh, are pleased to exempt the premises belonging to the councils constituted under the Sindh Local Government Ordinance, 1979, and the premises of the Colleges and Schools, taken over under Mattial Law Regulation 118 of 1972, from the application of the said Ordinance.
(SO Mashar Rafi, Secretary to Government of Sindh."
5. On the basis of the above provision of the Ordinance and the notification issued thereunder, it was submitted by Mr. Qarni that the learned Rent Controller had no jurisdiction.
6. On the other hand, Mr. Ali Akbar, learned Advocate-on-Record appearing fat the respondents, has urged, firstly that the appellants cannot raise this objection after having submitted to the jurisdiction of the Rent Controller, and secondly, the factum that the management of the schools was taken over under M.L.R. 118 by the Government, would not affect the ownership rights in the properties in question vested in the respondents or their right to claim rent as the landlords.
Reliance was placed by him, in support of his above second submission, on the case of Board of Foreign Missions of the Presbyterian Church in the United States of America through Lahore Church Council v. The Government of the Punjab through Secretary Education, Civil Secretariat, Lahore and another (1987 SCM R 1197), in which it was held that merely the factum that privately managed schools along their assets were to vest in the Government under the terms of Para. 5 of the above M.L.R. Did not imply that the Government had become the owner in relation to the buildings wherein schools and colleges were being run.
7. Adverting to the above first submission of Mr. Ali Akbar, it will suffice to observe that the question of jurisdiction can be raised at any stage of the proceedings if it does not need the recording of any evidence. In the rent application, which is the subject-matter of the above first appeal, question of jurisdiction was in fact raised but appeal, question of jurisdiction was in fact raised but reliance was placed on M.L.R. 118 instead of placing reliance on the notification, which was holding the field when the above rent applications were filed in or about 1986. Since leave has been granted on the above legal question of jurisdiction, we are not inclined to non-suit the appellants on the above technical ground at this stage.
8. As regards the above second submissions of Mr. Ali Akber, it may be pointed out that the case relied upon by him does not touch upon the point in issue, namely, as to whether in view of the above notification issued under subsection (2) of section 3 of the Ordinance, the Rent Controller could entertain the rent applications in respect of the premises which are occupied by colleges and schools. The above case has decided the question of ownership of the buildings wherein privately owned colleges and schools were run as pointed out hereinabove and, therefore, has no relevance.
9. We are, therefore, of the view that in view of the above notification, the Rent Controller had no jurisdiction to entertain the above rent applications and the remedy of the respondents for any alleged cause of action was by way of a suit.
10. It was also submitted by Mr. Ali Akbar that the appellants have not paid any rent to the respondents in spite of lapse of considerable period. Mr. Qarni, who was appearing for the appellants, submitted that the Government would have no objection to the payment of rent. We would, therefore, allow the above appeals on the above ground and would set aside the orders of the two Courts below. However, we would like to observe that the Government may consider the question of payment of rent of the respondents if they own the buildings. The appeals stand disposed of in the above terms with no order as to costs.