This order will dispose of Writ Petitions No,22913 and 22914 of 1996 as common questions of fact and law are involved therein.
2. These petitions under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, call in question the orders dated 12-11-1996 passed by the learned Rent Controller, Sargodha, whereby the petitioner in this petition was ordered to deposit the rent at the rate of Rs,1100 while the petitioner in Writ Petition No,22914 of 1996 was ordered to deposit the rent at the rate of Rs,1,000 per month from the date of institution of the ejectment petitions till the time that the said orders were passed as also the future monthly rent at the same rate before the 15th day of each succeeding month.
3. That facts forming background of these petitions are that the respondents claiming themselves to be the owner/landlords of the shops comprised in property No,40 situate Block No,1 Sargodha filed two ejectemnt applications against the petitioners on the ground of personal need. The tenancy between the parties was stated to be regulated by written agreements. The petitioners proceeded to contest the above said ejectment applications on the ground that the respondents are in the habit of filing the ejectment applications as pressure tactics who would relent the same on enhanced rent after obtaining eviction order from the Court. The plea of personal need was denied. It was also added that the respondents having refused to receive the rent, the same is being deposited in Court. It was after the recording of the respondents' evidence that the petitioners in each of the petitions noted above applied for amendment in the written statements on the ground that they, having purchased shops in dispute, had become co-sharer of the property comprising the same, therefore, neither the ejectment applications could be maintained by the respondents nor the learned Rent Controller had the jurisdiction to decide the same. The said application having been allowed by the learned Rent Controller, the plea as to the petitioners having become a co-sharer of the property comprising shops in dispute was incorporated in the written statements. It was thereafter that the learned Rent Controller noted that no order under section 13(6) of the Urban Rent Restriction Ordinance 1959 had been passed in the case, therefore, he proceeded to pass the said order thereby directing the petitioners to deposit the rent at the agreed rate from the date of institution of the petition till the time that the said order was passed as also to continue paying the future monthly rent at the agreed rate before the 15th day of each succeeding month.
4. The above said order has been assailed in the present Constitutional petitions on the ground that the petitioners in each of the petitions noted above having allegedly purchased the shops in their occupation had become co-sharers in the building comprising the said shops, therefore, the relationship of landlord and tenant between the parties had ceased to exist, hence the learned Rent Controller had no jurisdiction to proceed with the ejectment applications. It was also submitted that in similar case the same learned Rent Controller had not passed such an order by entertaining the plea that unless the question as to relationship of landlord and tenant between the parties as also the allied question of jurisdiction of the Rent Controller is determined, it was neither appropriate nor proper to pass such an order. Reliance was placed on Haji Shakar Khan v.
Abdul Qadir and others (1991 SCMR 1246), Abdul Hameed Naz and 7 others v. Mst. Razia Begum Awan and 4 others (1991 SCMR 1376), Isa Khan and 23 others v. Barkatullah and 9 others (PLD 1939 Peshawar 67), Sher Ali v. Khaki Jan and 25 others (1988 CLC 1104), Mithoo v. Member, Board of Revenue, Punjab, Lahore (PLD 1988 Lahore 277), Ali Gohar Khan v. Sher Ayaz and others (1989 SCMR 130), Syed Izhar-ul-Hassan Rizvi v. Mian Abdur Rahman and others (1992 SCMR 1352), Muhammad Bakhsh and 3 Others v. Khuda Bakhsh and 3 others (1993 MLD 937) and Muhammad Hanif v. Mst.
Ahmadi Begum (1996 CLC 137). The above said plea of the learned counsel for the petitioners was sought to be contested on the ground that the petitioners in the writ petitions noted above having admitted that the property comprising the shops in dispute is joint amongst the co-sharers, it could not be successfully maintained that they had purchased the shops in their occupation because a co-sharer could not sell a specific portion of a joint property. It was then added that in any case mere purchase of a share from the property comprising the shops in dispute could not be a bar to the passing of an order under section 13(6) of the Urban Rent Restriction Ordinance 1959. It was also submitted that this being a case of interim order under 1st Part of section 13(6) of the Urban Rent Restriction Ordinance, 1959, the said order could not be assailed by having recourse to the constitutional jurisdiction of this Court. Reliance was placed by the learned counsel for the respondents on Muhammad Hanif v. Mst. Ahmadi Begum (1996 CLC 137), M/s. Silver Stone (Pvt.)
Limited v. Rent Controller and others (1995 MLD 851) and Abdur Rehman v. Haji Mir Ahmad Khan and another (PLD 1983 SC 21).
5. The pivotal question that falls for determination in the petitions noted above is to the effect, as to whether the petitioners having pleaded cessation of tenancy on the ground that they having become co-sharer in the property could be called upon to deposit the rent without fist determining the question as to jurisdiction as also that of cessation of relationship of landlord and tenant between the parties and the same can be answered by applying the acid test to see whether the objection being raised by the petitioners/tenants is foundational or jurisdictional or one relatable to the proceedings before the learned Rent Controller. The petitioners in the petitions noted above having pleaded that they having purchased the shops in their occupation have become co-sharer in the property comprising the said shops had supported the said plea with the registered documents in their favour and as such were obviously maintaining that the tenancy between them and the respondents had ceased, therefore, they could not be ejected from the premises in their occupation through the ejectment application filed under the Urban Rent Restriction Ordinance VI of 1959. VA' This was an objection to the very proceedings being taken by the Rent Controller and was not only foundational but also jurisdictional, therefore, the Rent Controller had no jurisdiction to pass an order under section 13(6) of the Ordinance VI of 1959, without first determining the relationship of landlord and tenant between the parties and the dependent question that he had the jurisdiction in the matter. This view of mine finds support from the judgment of the Supreme Court reported as Syed Izhar ul Hassan Rizvi v. Mian Abdur Rehman and others (1992 SCMR 1352) and that of this Court reported as Muhammad Bakhsh and 3 others v. Khuda Bakhsh and 3 others (1993 MLD 937) and Muhammad Hanif v. Mst. Ahmadi Begum (1996 CLC 137). The Rent Restriction Ordinance is meant to regulate the relationship of landlord and tenant and the order under section 13(6) of the Ordinance can only be passed when the said relationship is shown to be existing or admitted to be existing. It is, no doubt, true that the case made out by the petitioner was one of exception inasmuch as the tenancy having been admitted at the initial stage the petitioner pleaded cessation thereof at a later point of time but definitely before the passage of order under section 13(6) of the Urban Rent Restriction Ordinance VI of 1959, therefore, unless the Rent Controller had determined the question of cessation of tenancy, the order passed by him under section 13(6) of the Ordinance ibid was manifestly without jurisdiction. The other question that no writ is competent against an interim order passed during the pendency of the ejectment application may not detain me any further because it is also well settled that an order without jurisdiction should not be allowed to remain in field and must always be struck down at the earliest, therefore, the reliance of the learned counsel for the respondents on the judgments in the cases of M/s. Silver Stone (Pvt.) Ltd. and Abdur Rehman noted supra is not very apt because the said cases are distinguishable on their own facts.
6. In result this petition is allowed with no order as to costs, the order dated 12-11-1996 passed by the learned Rent Controller is declared to be without lawful authority and of no legal effect. The learned Rent Controller shall now proceed to determine the matter pending before him by striking an issue as to ceassation of tenancy between the parties as also the dependent issue as to whether he has jurisdiction to entertain and decide the case.