A. R. SHEIKH, J.-----The facts giving rise to this writ petition are these. Muhammad Sharif petitioner brought an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) for ejectment of Muhammad Amin and Mehtab Din, the first and the second respondents, respectively, from the residential house bearing No. H-1249, situate in Purani Gur Mandi, Akbari Mandi, Lahore, alongwith a grinding machine and electric appliances attached thereto, on the ground of default in payment of rent of the premises. This application was resisted by the first respondent alone, mainly on the plea that there was no relationship of landlord and tenant between the parties, because the petitioner was not the lawful owner of the property. Alongwith the written statement, he applied for stay of proceedings before the Rent Controller on the ground that the validity of bale deed in favour of the petitioner had been challenged by him in the Civil Court.
The Rent Controller has allowed the application by the impugned order dated the 9th of January 1968 saying that if the Civil Court holds the sale deed to petitioner's favour as void and inoperative, the eviction application of the petitioner will become incompetent and it is appropriate that the proceedings should remain stayed till the decision of the civil suit between the parties. The petitioner feeling aggrieved by the order preferred an appeal before the Additional District Judge, who has rejected the same finding it incompetent as the order passed by the Kent Controller, according to him, was not covered by the provisions of sections 4, 10, 12 and 13 of the Ordinance.
The petitioner has come up to this Court in writ jurisdiction.
2. It has been contended on behalf of the petitioner that the question of existence or subsistence of relationship of landlord and tenant between the parties when raised before the Rent Controller is necessarily to be decided by the said tribunal because any tribunal of limited jurisdiction is not only entitled but bound to determine whether the matter in which it is asked to exercise its jurisdiction, comes within the limits of its special jurisdiction and when the jurisdiction of such tribunal is dependent upon the existence of certain facts or circumstances it is its obvious duty to see that those facts and circumstances exist to invest it with jurisdiction. It is maintained that according to the definitions of the terms `landlord' and `tenant' appearing in sections 2(e) and (2)
(i) of the Ordinance, it is not necessary for the landlord to be an owner of a particular premises before bringing a petition for eviction and all that he has to show is that he is a person for the time being entitled to receive rent of the premises in question and for that reason regardless of the fact whether or not the petitioner is a lawful transferee of the property in question, if he is found to be a person for the time being entitled to receive rent, the petition for ejectment is competent. It is further argued that the only objection to the transfer by sale in favour of the petitioner taken in the civil suit on behalf of respondent No. 1 is that the sale by Barkat A.I, the co-sharer of Abdul Karim (the lessor of respondents Nos. 1 and 2) is void because Barkat A.I had died and somebody has impersonated for him before the Sub-Registrar at the time of registration of the sale deed and, therefore, the transaction is void and no right or title has vested in the petitioner as a purchaser. It may be mentioned at this stage that respondent No. 1 has moved for amendment of his plaint before the Civil Court praying that the plea taken by him in the plaint that the said Barkat A.I was dead, was based on incorrect information and now he has been able to ascertain that the said Barkat A.I is living in Nairobi East Africa and that because he (Barkat A.I) was not available in Pakistan on the date when the sale deed is stated to have been executed and registered, it remains a non--genuine document qua Barkat A.I, who never executed the sale deed or appeared before the Sub-Registrar for registration thereof and as such the entire transaction is void. The argument on behalf of the petitioner further proceeds on the ground that assuming without conceding that the sale of the property qua the share of Barkat A.I is void and inoperative, there is no denying the fact that Abdul Karim validly transferred his share the petitioner and as such the petitioner is entitled to bring the application for ejectment of the tenants, who have no locus standi to resist the application on the flimsy plea of absence of proper transfer of his right by Barkat A.I in favour of the petitioner. It has been contended that the respondents being strangers to the transaction of sale they are not entitled to challenge the genuineness or operation of the said document with regard to devolving of rights in the property on the petitioner as a bona fide purchaser for value and, therefore, the suit filed by respondent No. 1 as against the petitioner is patently incompetent. Learned counsel maintains that in the circumstances the impugned order of stay granted by the Rent Controller is a case of refusal to exercise jurisdiction so vested in him by law and, is therefore, amenable to writ jurisdiction of this Court.
3. Learned counsel for the contesting respondent contends that an objection was taken in the written statement that the property belongs to Abdul Karim and Barkat A.I And, therefore, the alleged transfer in favour of the petitioner is not valid ; that the previous landlords, namely, Abdul Karim and Batkat A.I , were receiving rent although Abdul Karim alone issued the rent receipts on behalf of both the transferee-owners of the property which was initially evacuee ; and that in view of the fact that Barkat A.I was not available in Pakistan at the time the deed is alleged to have been executed and registered, the document is a void transaction and no right or title devolved on the petitioner. He maintains that although the tenants are not parties to the transaction of sale, as they are seeking to establish their own lease-hold rights and also title to some superstructure raised and machinery installed by them in addition to the building and machinery tenanted by them and they find them--selves threatened by the transaction between the petitioner and the owners of the property, the proper remedy in order to clear the way with a view to establish their title is to get a declaration that the deed is invalid in so far as they themselves are concerned and, therefore, the suit by one of the tenants is quite competent. It is argued that in any case since the tenants are entitled to the `legal right' to continue in possession as lessees of the property of one of the original landlords, namely, Barkat A.I, the postponement of the determination of the question of relationship of landlord and tenants between the parties is legally correct. In support of the proposition that although being strangers the respondents are entitled to avoid the transaction of sale, reliance has been placed on Jitan Tamboli v. Namko and others (PLD 1952 Lah. 36). This decision is not helpful to the respondents because that judgment is under sections 29 and 30 of the Guardians and Wards Act, which are clearly indicative of the legal proposition that "disposal of immovable property by a guardian in contravention of sections 28 and 29 is voidable only at the instance of any person affected thereby" and the tenant of the lease-hold rights from the guardian has been considered to be entitled to challenge the same as a person affected by the voidable transaction in view of the provisions of section 30 of the Guardians and Wards Act.
4. The next case relied on by learned counsel is Ghulam Sarwar v. Sheikh Rahmat Din (PLD 1952 Lah. 36) especially the following passage :- --- . . . The tenant may dispute the title of the transferee, and, perhaps successfully, if he can show that the transfer was invalid due to some legal defect in the form of transfer or any other substantial ground. He is after all a stranger to the contract of sale. But this is far from saying that the transferee has no right to demand rent from the tenant of the transferor, even if the transfer is valid.--- Ordinarily only parties to a particular document are entitled to enforce it and a stranger has no such locus standi unless he falls within the purview of the well-recognised exceptions, namely, where a contract between two parties is so framed as to make one of them a trustee for a third ; cases where the promisor, between whom and the stranger no privity exist, creates privity by his conduct and by acknowledgment or otherwise constitutes himself an agent of the third party ; where under marriage settlements or in connection with family arrangements or otherwise a charge is created on specific immovable property for the benefit of a third person or provisions are made fir the maintenance or marriage expenses of female members. Coming to the question of avoidance of contract by strangers, reference may be made to section 23 of the Contract Act, wherein the consideration or object of an agreement has been held to be lawful unless (including other cases detailed in the section) it involves or implies injury to the person or property of another and this clause in the said section has been the subject of interpretation by their Lordships of the Privy Council in Lal Achal Ram v. Raja Kazim Hussain Khan (32 I A 113), wherein while considering a deed of sale in which a false recital as to payment of consideration had been alleged and the effect of this sale as regards third parties came in for determination, the Judicial Committee observed as under as given in the head note ---------------..It operated as a present transfer to the plaintiff, giving him a good title on which it was competent to him to sue otherwise it lay on the defendant to show that it was absolutely void, and not merely voidable at the option of the transferor.--- Similarly in Raja Rat Bhagwat Dayal Singh and others v. Debi Uayal Sahu and tethers (35 I A 48), the following passage is of great help to appreciate the rights of a stranger to avoid deeds ---It was further said, and this was relied upon in the Courts in India, that the transaction was unfair and unconscionable bargain for an inadequate price. But that is a question between assignor and assignee. It is unnecessary to consider what the decision ought to have been if this had been a litigation between the assignors and the assignee in which the former sought to repudiate the assignment. In the present case the assignors do nothing of the kind. They maintain the transaction and ask that effect be given to it, and for that purpose they join as plaintiffs in the present actions. Their Lordships are therefore of opinion that the attack upon the title of the first appellant upon any such grounds as those indicated must fail.---
5. Be that as it may, the case before us is bound to succeed on another ground. In the declaratory suit filed by one of the tenants only, all that is said is that Barkat A.I (who is not a party to the suit) was not present at the time of execution or registration of the deed and the transfer is, therefore, void. It is not under--stood how the document can be void or unenforceable at least as regards Abdul Karim's share. The other plea of some Super-! Structure having been raised by the tenants or additional machinery having been installed has no relevance because it has been conceded by the contesting respondent before us that under, the agreement of lease, a certified copy of which registered document has been placed on the record by the petitioner as Sh. Annex. `G', there is no permission for any such additions or M, alterations to the premises demised. We further find that the first and the second respondent were lessees of the premises only under Abdul Karim, transfer by whom is not denied in the civil suit, and therefore, the petitioner is prima facie a person entitled to receive rent by virtue of the transaction of sale in his favour as transferee from the original lessor by virtue of section 2(c) of the West Pakistan Urban Rent Restriction Ordinance and the pendency of the declaratory suit in no manner, affects the exclusive jurisdiction of the Rent Controller to decide the question of relationship of landlord and tenant between the parties. Reliance placed by learned counsel on Ma Kyaw and another v. Daw Kye U(AIR 1935 Rang. 355) that when there are cross proceedings between the parties, one for title and the other for rent, the latter must be stayed, cannot be successfully pressed into service.
6. The last contention that the decision of the Rent Controller is with jurisdiction, although erroneous, and, therefore, Article 98 of the abrogated Constitution Act of 1962 is not available to the petitioner, is without merit for the reason that in view of the Full Bench decision in Akhtar A.I Parvez v. Akhtar Rahman (PLD 1963 Lah. 390) whenever an objection as to jurisdiction of the Rent- Controller is raised that question has to be decided first and in the tribunal of exclusive jurisdiction stays its hands to await the decision of title before the Civil Court, in disregard of the definition of the term `landlord' given in the Ordinance, his order is clearly justiciable under Article 98 of the abrogated Constitution Act of 1962.
7. For the reasons above, we accept the writ petition, set aside the orders of the Rent Controller and direct him to proceed with the case in accordance with law. The petitioner will have his costs before this Court.