' These five Second Appeals bearing Nos. 153/76, 154/76, 155/76, 155/76 and 157/76 are against the common order dated 3-4.1976 passed by the District Judge, Tharparkar, in Rent Appeals Nos. 42/75, 43/75, 44/75, 45/75 and 46/75 and since the appeals are based on facts common to all and involve common question of law I propose to dispose them of together by this judgment,
2. The facts giving rise to these appeals briefly stated, are that one Fateh Mohammad father of respondents 1 and 2 and Munk Ahmed respondent 3 jointly purchased 1e one-room quarters bearing City Survey Nos. 1014 to 1030 situated at Gharibabad in front of Motiram Cotton Ginning Factory, Mirpurkhas, from its owners Rupchand Chelaram through a registered sale deed dated 30-6-1973. Thereafter, by separate notices under section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance) dated 20-10-1973 served on the appellants by Mr. Bashir Ahmed Siddiqui, Advocate on behalf of the father of respondents 1 and 2 and respondents 3, they were informed of the transfer of ownership of the houses and were required to attom to the new owners and on appellants' failure to comply with the notice and pay the rent, the father of respondents 1 and 2 and respondent 3 (hereinafter jointly called the respondents) filed on 7-3-1974 separate applications under section 13 of the Ordinance with the Rent Controller, Mirpurkhas, for eviction of the appellants on the ground of non-payment of rent and requirement of the premises far bona fide personal needs. These applications were numbered as Rent Applications Nos. 9/1974, 10/1974, 11/1974, 12/1974 and 13/1974.
3. It appears that on 4-10-1973 the appellant also file applications under section 15(2), explanation
(if) of the Ordinance with the Controller Mirpurkhas, seeking permission to deposit the rent of the premises and the Controller by the order dated 5.10-1973, permitted the appellants to deposit the rent at their own risk.
4. The appellants in their objections filed on 22.5-1974 claimed that they were in possession and enjoyment of the premises for the last 30 years without payment of any rent to the previous owners of the Motiram Cotton Ginning Factory as they were the labourers of the said factory and the quarters were provided to them by the previous owners free of rent. They however, showed their willingness and readiness to attorn to the respondents on production of their title-deed. They revertheless denied that they were defaulters in payment of rent and also denied the right of the respondents to evict them from the premises.
5. The appellants at the time of passing of order of deposit of rent under section 13(6) of the Ordinance did not dispute the relationship of landlord and tenant and therefore, the Controller passed the order of deposit of arrears of rent and future rent in accordance with the provisions of section 13(6) of the Ordinance. It will however, be useful to reproduce hereinbelow this order in extenso as it would be referred to subsequently to meet the sole contention of the learned counsel for the appellants raised before me, namely, that the application of the respondents under section 13(2) of the Ordinance was not maintainable before the Controller because there was no relationship of landlord and tenant between the parties.
"/7-7-74. Order under section 13(6) of W. P. U. R. R. Ordinance.-Heard of Mr. Bashir Ahmed Siddiqui, Advocate for applicant and Mr. Mohd. Siddique for opponent who states that relationship of landlord and tenant not disputed so also he does net dispute that opponent himself filed Misc. R. C.
No, 22/73 against applicant, when she admitted that property has not been purchased by applicant and he was paying rent to previous landlord at Rs, 3 p.m. Up to June, 1973.
' As such by consent it is ordered that opponent to deposit arrears of rent from July 1973 to 31-7-74 i,e, 13 months at Rs, 3 p.m. i,e, total Rs, 39 within one month from today and continue depositing monthly rent before 15 of every calender Month. Adjourned to 30-7-74 for issues."
6. Thereafter, on 30-7-1974, the Controller framed the following issues and decided all the issues against the appellants except issue of default in payment of rent, by the order dated 27-2-1975 :
(1) Whether the applicants (respondents) purchased the property in question and acquired the ownership of the same?
(2) Whether the opponent is a defaulter?
(3) Whether the applicants (respondents) bona fide require the property in question for their own use and occupation and that of their children?
(4) What should be the order?
' It may be mentioned that the evidence led on behalf of the parties was same in all the cases with the exception that each appellant had examined himself in the case concerning him.
7. Aggrived by the aforesaid order the appellants preferred five separate appeals under section 15(1) of the Ordinance which were rejected by the District Judge, Tharparkar by the common order dated 3-4-1976 impugned in these five appeals.
' It may be mentioned that the applications were filed by Patch Muharnmmad and Mohammad Ahmed, but after the decision of the applications Fateh Mohammad died and therefore his legal representatives were joined as parties to, the appeals as respondents 1 and 2.
' Before the District Judge, Tharparker, only the finding on issue concerning the bona fide requirement of the quarters by the respondents was challenged but the learned District Judge, Tharparkar by the impugned the finding of the controller on this ism.
8. I have heard Mr. S. Sami Ahmed, Advocate for the appellant and Mr. Zaheeruddin Khan Advocate for the respondents.
9. The learned counsel for the apppellants has contended that the application under section 13(2) of the Ordinance filed by the respondents was not maintainable before the Controller because there was no relationship of landlords and tenants between the parties. In support of the contention the learned counsel referred to the contents of para. 2 of the objections which road as follows: "Contents of para. No, 2 of the application are admitted to the extent that the opponent is in possession and enjoyment of the suit premises as the labourer of Messrs Pehloomal Motiram Cotton Ginning Factory of which Seth Rockland is the Proprietor of Karta. The Opponent did not pay any rent for the last 30 years or so. The quarter in question was provided free of rent to the opponent as a labourer of Factory a laborer which the opponent was "
10. On the basis of the above objections the learned counsel submitted that, the Controller ought to have framed an issue with regard to the elationship of landlord and tenant and ought to have decided it as a preliminary issue. The learned counsel in support of the above submission referred to Akhtar Alt Parvez v. Altafur Rahman (1) and Fakir Mohammad v. Mulla Mahmood (2).
' In the first cited case the question which came up for consideration of the Full Bench was where there is a denial by the alleged tenant of the relationship of landlord and tenant, it is incumbent upon the Rent Controller to decide first the question of existence or non-existence of that relationship and only then order the tenant to deposit the arrears of rent etc. If the preliminary question is decided against, the Full Bench answered the question and inter ea it was observed as follows: "it seems to me that when an objection is taken to the jurisdiction of the Tribunal, that objection roust be treated as a preliminary objection and must be resolved before taking any further action."
' In the Quetta case it was observed that the Rent Controller can proceed with an application under section 13 of the Ordinance only if the finds that relationship of landlord and tenant subsists. In case of a dispute between the parties on that score, he has to decide it as a preliminary issue.
11. In my opinion the contention of the learned counsel for the appellants is untenable in the face of the order of the Controller dated 17-74974 before whom the relationship of landlord and tenant between the parties was not disputed and it was also not disputed that the appellants themselves had filed miscelleneous rent application against the respondents, wherein they had admitted that they were paying rent to the previous landlord at Rs, 3 month and had paid the same upto June, 1973. The learned Advocate the appellants has not challenged the order of the controller dated 17- 7-1974 which has been quoted hereinabove In extenso, as regards the correctness o the statement of the Advocate for the appellants that he did not dispute the existence of the relationship of landlord and tenant between the parties not only that, the appellants had also admitted the existence of relationship of landlord and tenant in the rent application filed by them for deposit of rent in the following e ords "The applicant is residing in quarter bearing Nos. 1023 and 1025 situated in Gharibabad infront of Motiram Cotton Ginning Factory, Arpurkhas since last 50 years and paying rent regularly to the owner at the rate of Rs, 3 per month each. The applicant is paying rent regularly to the previous cm nerd"
Further, in their depositions before the Controller as each of them had stated that although he had sent the rent by money order to the respondents but they had refused to accept. I may reproduce in verbatim the deposition of one of the appellants which is as follows "I sent money order to the applicant which was refused and thereafter I started depositing the rent in Court of Rent Controller. Am depositing RS. 6 per month as rent of the two quarters at the rate of Rs,
3. I produce postal money order receipts."
12. In the face of the admission before the Controller I am of the view, that it was not all necessary for the Controller to raise the issue of the existence of relationship of landlord and tenant between the parties and try it as a preliminary issue.
13. In the Quetta case relied upon by the learned counsel for the
(1) PLD 1963 Lah. 390 (2) PLD 1973 Quetta 1 ' appellant Agha All Haider, i. Has laid down that in case of dispute as to the existence of relationship of landlord and tenant between the parties the Controller has to decide the issue as preliminary issue but in the present case as stated above, no dispute as to the existence of relationship of landlord and tenant was raised before the Controller. In fact the existence of the relationship was admitted when the Controller passed order under section 13(6) of the Ordinance.
In Akhtar Ati ?Ems's case the Full Bench after laying down the rule had proceeded to examine the question whether challenge to the jurisdiction was justified or not and after examining the question their Lordships were pleased to hold that the rule laid down by them was not attracted in that case as the notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 receipt of which was denied was in fact, served on the tenant. Therefore, such a question could be examined In these appeals also but in the present ease it is not necessary to do so as it does not arise in view of what has been stated hereinbefore.
14, It is also worthy to note that when issues were framed no issue as to the existence of relationship of landlord and tenant was sought to be raised and no suggestion or application was made later on even for amendment of the issues.
15. Before parting with the case, I may also mention that the learned counsel for the appellants had also contended that the finding of the Controller on the Issue of the bona fide requirement of the premises by the respondents for their personal use was arbitrary but had subsequently not pressed it and I may say rightly so, as it cannot be any stretch of imagination, be called arbitrary for it was based on the evidence of the respondents an their witnesses Nasimuddin and Imamuddin.
I therefore, find no substance in all these appeals and dismiss them with costs.
Appeals dissm issed.