' IRSHAD HASAN KHAN, J.---This petition, under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973, is directed against the order of the learned Single Judge of the Lahore High Court, Lahore, dated 8-12-1998, passed in S.A.O. No,100 of 1997, in a rent case.
2. Brief facts are that the respondent filed a petition for eviction of the petitioner from the Shop No,127-R-15-A, Chowk Shahdara, Sheikhupura Road, Lahore on 15-3-1993 before the Rent Controller, Lahore, under section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance), on ground of default and personal use.
' The petitioner in his written statement denied the relationship of landlord and tenant between the parties, stating that he was in possession of the disputed shop belonging to the Highway Department and that the respondent, in the first week of July, illegally and forcibly attempted to dispossess him, who was constrained to file a suit for permanent injunction against the respondent, which was pending in Court of Mr. Muhammad Zafar Qureshi, Civil Judge, Lahore.
3. The learned Rent Controller vide order dated 2-4-1994 directed the petitioner to deposit the arrears of rent from April, 1996 till March, 997 amounting to Rs,21,600. He was further directed to deposit monthly rent at the rate of Rs,2,000 per month before 14th day of each succeeding month and to tender the receipt of deposit of the said amount on 15-4-1997. The petitioner approached the High Court through a Constitutional petition (W.P. No,9584 of 1997), which was dismissed.
4. Notwithstanding dismissal of the writ petition, the petitioner moved an application before the Rent Controller, Lahore for recalling the order under section 13(6) of the Ordinance. The application was, however, rejected vide order dated 10-5-1997 striking off the defence of the petitioner and directing him to vacate the premises in dispute. The petitioner filed an appeal before the learned District judge, Lahore which was also dismissed on 23-7-1997. Second appeal filed by the petitioner was also dismissed by the High Court vide impugned order on 8-12-1998. The petitioner now seeks leave to appeal.
5. Mr. Qureshi Muhammad Hafeez, learned counsel for the petitioner contends that the learned Rent Controller had no jurisdiction to pass the order under section 13(6) of the Ordinance, in that, no relationship of landlord and tenant existed between the parties. The superstructure of the shop belonged to the petitioner and the land underneath belonged to the Highway Department. He further argued that there was no reliable evidence on record to prove even, prima facie, the existence of relationship of landlord and tenant between the parties. The respondent failed to produce the original note. It was pleaded that rent note was forged and fabricated document and, in any case, the learned Rent Controller has fallen into error in passing the order on 2-4-1997 and 10-5-1997. It is submitted that same illegality was committed by the first Appellate Court as well as the learned Judge in Chambers.
' Mr. Qureshi Muhammad Hafeez, also placed reliance on Mst. Razia Begum v. Senior Civil Judge (Rent Controller), Charsadda (PLD 1996 Peshawar 8), to contend that where relationship of landlord and tenant between the parties is denied, it is incumbent upon the Rent Controller to first decide the issue in respect of existence or non-existence of the relationship of landlord and tenant between the parties.
6. We are not impressed by the pleas raised by the learned counsel for the petitioner. The result of dismissal of Writ Petition No,9584 of 1997, was that the order of the Rent Controller dated 2-4-1997 had attained finality, in that, the petitioner had never challenged the order of the High Court dismissing his earlier Constitutional petition whereby it was held that the "plea of tenancy being based on rent note, was not effectively rebutted by any prima facie evidence on record". Learned counsel for the petitioner has not placed any document on record to show that any petition for leave to appeal was filed against the said order before this Court. The present petition is, therefore, liable to dismissed on this short ground alone.
7. Be that as it may, there is no cavil with the proposition that where relationship of landlord and tenant is denied, the Rent Controller should, in the first instance, decide this issue before directing the tenant to deposit the arrears of rent, if any, or future rent. In the instant case, however, the A petitioner failed to produce even, prima facie, evidence in support of his assertion, therefore, no prejudice was caused by reason of omission of framing of formal issue on the existence of relationship of landlord and tenant between the parties. The above plea was duly considered and rightly repelled by the learned Judge in Chambers vide paragraph 5 of the impugned order, which reads thus:-- ' The above said orders have been assailed in the present second appeal primarily on the ground that the tenancy having been denied, it was incumbent on the learned Rent Controller to have determined the same in the first instance before proceeding to pass the order under section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959. I am afraid, the argument is misconceived for the reason that the respondent had claimed tenancy with the appellant on the basis of sale deed in regard to the property in dispute as also the rent note alleged to have been executed by the respondent. The said plea was sought to be negated on the ground that the shop in dispute is owned by Highway Department but no prima facie evidence was given in support of the said assertion. Interestedly enough, it was also not pleaded that the appellant was tenant under the Highway Department. In the face of sale deed in regard to the property in dispute, it is hard to believe that the property in dispute was owned by Highway Department particularly when the appellant had not produced any evidence to support this plea on the said department had come forward to make that claim. The order under first part of section 13(6) of the Punjab Urban. Rent Restriction Ordinance, 1959 is regulatory in its nature and is passed to test the bona fide of the tenant. It is tentative in nature for the second part of subsection (6) of Section 13 ordains that final order in regard to payment of rent is required to be passed by the learned Rent Controller at the time of disposal of the ejectment application. While it is true that when relationship of landlord and tenant is denied, it should be determined before final order under first part of section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959. It is equally true that this exercise could not be taken when the objection itself is frivolous and prima facie not supported by any pleading worth the name or material document on the record. In the instant case, the denial of tenancy has been considered to be frivolous and rightly so by both the Courts below. The appellant having claimed that the shop in dispute was owned by Highway Department did not claim any tenancy under the said department and then produced no document to even prima facie establish the said plea. The objection on the face of it was frivolous therefore, the same was rightly ignored by the Courts below. The appellant in this case was specifically asked as to whether he is paying any rent to anybody, the tacit answer was in the negative. The conduct on the part of the appellant is absolutely mala fide who wants to enjoy the occupation of the shop in dispute without paying any rent to anybody. The property in dispute is registered with the Excise and Taxation Department and is being subjected to tax. It is thus obvious that the same is privately owned.
' The appellant having failed to comply with the order under section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959, was rightly visited with the penalty of striking off his defence, resultantly the orders of ejectment passed by the two Courts below do not suffer from any legal infirmity.
' In result, this appeal is dismissed with costs. The appellant is, however, granted one month's time to vacate the premises in dispute.
8. No case is made out for interference with the well-reasoned order of the High Court.
9. Resultantly, the petition is dismissed and leave refused. The petitioner is, however, granted one month's time to vacate the premises in dispute and hand over vacant possession thereof to the respondent.