' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 involves the interpretation of section 15(6) of the Punjab Urban Rent Restriction Ordinance, 1959 and arises in the following circumstances.
2. An application under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959 seeking eviction of the petitioner from house No,NEIR-119/48, G.T. Road, Lahore was filed by respondent No,1 against the petitioner who in the written statement denied the relationship of landlord and tenant between the parties and instead-pleaded that he was in possession of the house under an agreement of sale executed by respondent No,1 in favour of his wife. In view of this denial, the Rent Controller framed the following issues:--
(1) Whether there exists relationship of landlord and tenant between parties? OPA.
(2) Whether the petition is mala fide? OPR
(3) Relief.
' On the basis of the evidence led before him, the learned Rent Controller came to the conclusion that the petitioner was in possession of the house as tenant under the respondent No,6. Resultantly an order of ejectment was passed against the petitioner on 26th July, 1994.
3. Aggrieved by that order, the petitioner filed an appeal which came up for hearing before the learned Additional District Judge on 22nd September, 1994 when it was admitted to regular hearing and operation of the impugned order was suspended. During the pendency of the appeal, an application under section 15(5) of the Punjab Urban Rent Restriction Ordinance, 1959 was moved by respondent No,1 praying that the petitioner be directed to deposit arrears of rent as well as future rent pending decision of the appeal. That application was allowed by the Additional District Judge on 1-10-1995 and the petitioner was called upon to deposit arrears of rent with effect from August, 1985 to September, 1995 and future rent at the rate of Rs,1,000 per month. The petitioner has assailed the order by invoking the Constitutional jurisdiction of this Court.
4. Learned counsel for the petitioner has contended that an order under section 15(5) of the Ordinance can only be passed in cases where relationship of landlord and tenant is admitted and not when the dispute, in the appeal is itself as to whether any tenancy exists between the parties. In that context, learned counsel pointed out that section 15(5) by reference makes section 13(6) applicable to appeals which has been interpreted in various cases in which it has been held that an order of deposit of rent cannot be passed where the relationship of landlord and tenant is denied.
5. Learned counsel for the respondent No,1 on the other hand, has vehemently argued that once Rent Controller had found petitioner to be a tenant, the power under section 15(6) to pass order of deposit of rent under section 15(5) of the Ordinance was clearly available to the Additional District Judge. In that respect, learned counsel has relied upon the judgment of this Court in Mst. Bashiran and 2 others v. Ataul Haq and 2 others 1988 CLC 3.
6. As regards section 13(6) of the Ordinance, 1959 there cannot be any doubt that if relationship of landlord and tenant is denied by the so-called tenant, no order of deposit of rent can be passed till such time that question is decided by the Rent Controller. (See Akhtar Ali Pervez v. Altafur Rehman PLD 1963 Lahore 390).
7. Even learned counsel for the respondents did not dispute this legal proposition. It has, however, been argued by the learned counsel for respondents that once the Rent Controller held a person to be a tenant, the appellants can pass an order of deposit of amount during the pendency of the appeal. In order to appreciate this contention, it is necessary to refer to section 15(5) of the Ordinance Which reads as under:-- "S.15(5).--The appellate authority admitting an appeal for hearing shall have the same powers to direct the tenant to deposit the rent as are vested in the Controller under this Ordinance and, if the tenant makes default in compliance with such an order, then, if he is the appellant, his appeal shall be dismissed summarily and, if he is the respondent, his defence shall be struck off."
8. On proper analysis of the above-quoted provision it will be seen that the Appellate Authority can only direct "tenant" to deposit the rent. The use of word "tenant" instead of "appellant" is not without any significance and must be given due weight. If the intention as urged by him, that an order of deposit of rent can be passed there was nothing to prevent the Legislature from conveying that intention by using the word "appellant" and not "tenant".
9. It was urged by the learned counsel for respondent No,1 that once a person has been found to be a tenant by the Rent Controller, he can be directed to deposit the rent. This argument appears to be attractive but does not stand the test of deeper scrutiny and proceeds on about the true nature of appeal. It is axiomatic that appeal is continuation of original cause and once the appeal is filed, the entire matter stands reopened and finality of the impugned order disappears. If any authority is needed, reference may be made to F.A. Khan v. The Government of Pakistan PLD 1969 SC 520, wherein B.Z. Kaikaus, J. Observed that it would be thus anamolous to hold though the question as to whether or not a person is a tenant remains to be decided by the Appellate Court, the appellant for the purposes of section 15(5) should be considered to be a tenant in view of the findings of the Rent Controller and be directed to deposit the rent. Supposing in a given case, at the hearing of the appeal, the Appellate Court itself comes to the conclusion that the finding of the Rent Controller holding the appellant to be a tenant was wrong; can the appeal be dismissed, on the ground that the order for deposit of rent under section 15(5) of the Ordinance, 1959 has not been complied with? In my humble view, it would be anamolous to do so.
10 The matter can also be examined from another angle. Section 15(5) of the Ordinance brings in by reference section 13 (6) of the Ordinance. While interpreting section 15 (5), the Supreme Court in M. Imamuddin v. Mst. Surriya Khanum through Legal Heirs (PLD 1991 SC 317) has been pleased to hold that the power of Appellate Authority to order the deposit of rent is co-existent with the Rent Controller. Consequently, if in a case, where the relationship of landlord and tenant is denied, the Rent Controller cannot pass an order for deposit of rent without first determining existence of that relationship between the parties, the same position should hold good as regards the power of the Appellate Court. As while directing the deposit of rent, the Appellate Court acts under section 13 (6) of the Ordinance, it must necessarily be subject to the same restrictions as are placed on the Rent Controller and the Appellate Court cannot claim greater power than the same vesting in the Controller.
11. According to the learned counsel for respondents, if above interpretation is accepted serious prejudice shall be caused to a person who after protracted trial of ejectment petition has been held to be the landlord as he would be deprived of the rent due to him and its effect would be that the tenant would remain in possession of the property without paying any rent pending decision of the appeal. Besides the fact that hardship cannot be ground for misinterpreting the law, the Court is not powerless to ensure that its process is not abused. Undoubtedly, grant of stay pending the appeal is discretionary with the Appellate Authority under section 15 (4) of the Ordinance.
Consequently, in a proper case the Additional District Judge can make suspension of the order of the Rent Controller conditional upon deposit of rent. However, in the present case, this aspect of the matter was not examined by the Additional District Judge.
12. Reliance of the learned counsel on Mst. Bashiran's case supra (1988 CLC 3) is not of much help inasmuch as what has been held in that case was that notwithstanding that no order of deposit of rent has been passed by the Controller, it is open to the Appellate Court to set aside such order. In that case the question as to whether order for deposit of rent can be passed where the relationship is denied was neither discussed nor decided.
13. It may also be noted that while admitting tilt appeal, the Additional District Judge himself proceeded to suspend the operation of the impugned order which is meant that the order of Rent Controller was not in existence and could not therefore be made a ground for exercise of power under section 15(5) of the Ordinance.
' In view of what has been stated above, this petition is allowed and the impugned order is declared to be without lawful authority and of no legal effect. This order shall not prevent respondent No, 1 landlord from applying to the. Rent Controller for modification of the variation of the stay order of Rent Controller and praying that it may be made subject to deposit of rent. At the request of the learned counsel for respondent No, 1, it is directed that the appeal shall be decided by the Additional District Judge within one month without fail. Compliance of this order shall be reported to the Registrar of this Court.