' Learned counsel for the appellant contended that appellant denied the relationship of landlord and tenant and both the Courts below did not decide the same and passed the ejectment orders against the appellants. Contention of the learned counsel needs consideration. Admit. Notice.
2. Learned counsel for the respondents accepts notice on behalf of the respondents. Therefore, the same is decided as Pacca case. Main Case.
' I intend to decide S.A.O. No,126 of 1999, S.A.O. No,128 of 1999 and S.A.O. No,127 of 1999 by one consolidated judgment having similar facts and law.
2. Brief facts out of which these appeals arise are that the respondents filed three ejectment petitions against present appellants on the ground of default in payment of rent and personal need before the Rent Controller Gujranwala. Present appellants filed replies of the ejectment petitions on 8-7-1997 and denied the relationship of landlord and tenant existed between the parties. Out of the pleadings of the parties, learned Rent Controller framed the following issues:---
(i) Whether the relationship of landlord and tenant exists between the parties?
(ii) Whether the Court has got jurisdiction to try this petition?
(iii) Relief.
' Respondents were directed by the learned Rent Controller to produce evidence in support of the ejectment petitions but the respondents failed to produce evidence in spite of the eleven opportunities were granted to the respondents by the learned Rent Controller. During the pendency of the ejectment petitions, respondents filed three applications before the learned Rent Controller under section 13(6) of Rent Restrictions Ordinance with the prayer to direct the appellants to deposit the rent. Present appellants filed replies of the applications and raised preliminary objection that learned Rent Controller has no jurisdiction to take the cognizance of the matter without deciding the question of relationship of landlord and tenant existed between the parties or not. Learned Rent Controller accepted the applications of the respondents on 30-9-1998, directed the appellants/respondents to deposit future rent in the Court. Appellants/respondents failed to implement the order of the learned Rent Controller, dated 30-9-1998. Ejectment orders were passed against the present appellants by the learned Rent Controller on 16-1-1999. The present appellants being aggrieved by the orders of the learned Rent Controller filed three appeals before the District Judge Gujranwala who dismissed the appeals vide judgments, dated 17-5-1999. Hence the present appeals:
3. Learned counsel for the appellants contended that the appellants denied the relationship of landlord and tenant. He further stated that it was incumbent upon the Controller to first decide the issue in respect of existence or non-existence of landlord and tenant between the parties. He further stated that the Rent Controller without deciding preliminary issue directed the appellants for deposit of the monthly rent. He further stated that there was no justification for the Rent Controller to have ordered for the deposit of rent before assuming the jurisdiction and deciding the issue with regard to the relationship of landlord and tenant between the parties in absence of evidence. Therefore, proceedings before the Rent Controller were corem non-judice without lawful authority. He further stated that when the basic order is without lawful authority, the whole structure shall fall on the ground automatically but both the Courts below did not advert to this aspect of the case. He relied upon the following judgments: ' Muhammad Shaft's case PLD 1995 561.
' Abdul Khaliq's case 1979 CLC 118.
' Ghulam Hussain's case PLD 1982 Lah.519 and ' Muhammad Salim's case 1998 CLC 1883.
4. Learned counsel for the respondents contended that both the Courts below have given concurrent findings of fact against the appellants and this Court has no jurisdiction to disturb the concurrent finding of fact aggrieved by both the Courts below in second appeal. He further stated that appellants claimed to be tenant of Nazir son of Muhammad Yaqub who is joint owner of the property in question with the respondents/petitioners. Respondents failed even to bring on record any rent deed executed between the appellants and one Nazir. He further urged that appellants failed to bring on record that the property had already been partitioned. Therefore, ejectment petitions filed by the respondents are maintainable and respondents/petitioners are admittedly joint owner of the property in question. He further stated that both the tribunals below have given concurrent findings of fact against the appellants that there was no question of non-existence of relationship of landlord and tenant because the appellants/respondents were admittedly a tenant on the disputed property. He further stated that learned Rent Controller directed the appellants to deposit the future rent in Court keeping in view the denial of relationship of landlord and tenant and the appellants failed to implement the same.
' Therefore, both the tribunals below have no option except to pass the ejectment orders against the appellants by virtue of section 13(6) of the Rent Restriction Ordinance.
5. I have given my anxious consideration to the contention of the learned counsel for the parties and perused the record myself. It is admitted fact that appellants/ respondents have raised the preliminary objection that the learned Rent Controller has no jurisdiction to take the cognizance of the matter as the relationship of landlord and tenant did not existed between the parties. This fact is borne out from the written statements/replies of the ejectment petitions coupled with the preliminary objection and specific reply of para.2 that is why the learned Rent Controller framed the aforesaid issues Nos.1 and 2. It is also admitted fact that ejectment petitions were filed by the respondents/petitioners on 8-7-1997 and eleven opportunities were provided to the respondents to produce the evidence but the respondents failed to produce the evidence and the respondents filed applications under section 13(6) of the Urban Rent Restriction Ordinance on 7-1-1998. The learned Rent Controller directed the appellants to deposit the rent in Court without deciding the preliminary objection regarding the assumption of jurisdiction. It is settled proposition of law when the objection about assumptioh of jurisdiction of Rent Controller is raised by the tenant then it is the duty and obligation of the learned Rent Controller to decide the point of jurisdiction as a preliminary issue before passing the order of tentative rent under section 13(6) of the Rent Restriction Ordinance as the principle laid down by this Court in PLD 1964 Lahore 648. The aforesaid proposition of law was settled by the Hon'ble Supreme Court in Muhammad Akram's case and observed as under: "It is well-settled proposition of law that when objection is taken as regards the jurisdiction of the Rent Controller by a tenant, he cannot take further steps in the proceedings except after determining the question whether he possessed jurisdiction in the proceedings before him. We are, therefore, unable to find fault with the view taken by the learned Single Judge in the High Court that the order passed under section 13(6) was without jurisdiction and cannot, therefore, sustain the consequential order of eviction. We are further strengthened in our view by the concession made at the Bar that when the Rent Controller struck off the defence of respondent No,1, the aforesaid issues still remained to be decided. As on a plain reading the said is' les raised the question of jurisdiction of the Rent Controller, we cannot but agree with the High Court that the order of eviction was passed illegally."
' My learned brother Sayed Najam-ul-Hassan Kazmi, J., has considered all the case-law on the subject in Muhammad Salim's case 1998 CLC 1883 and observed as under: ' It is settled rule, that if an objection to the jurisdiction of a tribunal or Court is raiser, the same shall be decided as a preliminary issue before passing any order, which can be passed on assumption of jurisdiction."
' It is settled proposition of law as the existence of relationship of landlord and tenant between the patties to the proceedings before the Rent Controller is a condition precedent for the enforcement of the rule envisaged under section 13(6) of the Rent Restriction Ordinance but both the tribunals below directed the appellants to deposit the rent in Court which tantamounts that the Courts below passed the order without adverting to the object to the section and scope of aforesaid subsection coupled with the preamble of the Rent Restriction Ordinance without deciding substantial question touching the very existence of the relationship between the parties as the principle laid down by the superior Courts in the following judgments: ' Imam Din's case PLD 1991 SC 317. 1983 CLC 380. PLD 1961 Lah.601. 1983 CLC 2865.
It is admitted fact that the learned Rent Controller directed the appellants vide order, dated 30-9- 1998 to deposit the rent in Court without deciding the question of jurisdiction against the appellants. Therefore, order, dated 30-9-1998 of the learned Rent Controller is without lawful authority, Consequently, the order of eviction passed against the appellants due to their making default in the compliance of order for deposit of rent is liable to be quashed on the well-known principle if the foundations give away the superstructure cannot stand meaning thereby when the basic order is without lawful authority, then superstructure shall have to fall on the ground automatically as the principle laid down by the superior Courts in the following judgments: ' PLD 1982 Lah.
1. PLD 1958 SC 104.
' PLD 1982 Lah.
519. PLD 1967 Lah.
1025.
In view of what has been discussed, these appeals are accepted. The impugned orders are set aside and the cases are remanded to the learned Rent Controller with the direction that he should decide the question of jurisdiction as a preliminary issue and determine the character of the property in issue without influenced by any observation of this Court. Learned Rent Controller shall proceed with the eviction proceedings on merits only if the objection as to jurisdiction is decided in negative. Learned Rent Controller is directed to conclude the proceedings positively within two months after receiving the order of this Court. Even at the cost of day to day proceedings. Parties are . Directed to cooperate with the learned Rent Controller to conclude the proceedings within the specified period. Parties are directed to appear before the learned Rent Controller on 7-2-2000.