SHAIKH ABDUR RAZZAQ, J. - Briefly stated the facts are that Mst. Khurshid Begum landlord/respondent No. 3 filed an ejectment petition against the tenant/petitioner for his eviction from the house described fully in the head note of the ejectment petition. The tenant petitioner resisted the said petition by submitting written statement on 1.6.2000. The tenant/petitioner specifically denied the relationship of landlord and tenant between the parties.
2. From the divergent pleadings of the parties the learned Rent Controller framed the following issues:-
(1) Whether there exists relationship of landlord and tenant between the parties? OPA
(2) Whether the petitioner has no cause of action to file present petition? OPR
(3) Whether the respondent is entitled to special costs u/S. 35-A, CPC? OPR
(4) Relief.
3. In support of her stand the landlord/respondent adduced evidence in the form of affidavits and later on the said deponents were subjected to cross-examination. Similarly the tenant/petitioner also filed affidavits and the deponents were subjected to cross-examination.
4. After going through the evidence produced by the parties, the .Learned Rent Controller vide order dated 5.5.2000 accepted the ejectment petition and ordered the eviction of the tenant/petitioner.
The Trial Court while accepting the. Ejectment petition also ordered the tenant to pay a sum of Rs.
21,000/- as rent from October, 1997 to April, 2000 at the rate of Rs. 700/- per month. Feeling aggrieved of this ejectment order, the tenant/petitioner filed an appeal which also met the same fate, as is evident from the order of learned Additional District Judge dated 15.7.2000.
5. The tenant/petitioner has challenged the orders of the Courts below to the extent of recovery of rent only through this writ petition.
6. Arguments have been heard and record perused.
7. The stand of the leamed counsel for the tenant/petitioner is that As no. Issue regarding fault had been framed by the learned Rent Controller, so the question of recovery of rent from the petitioner could not arise. He further submits that as a result of these judgments execution proceedings have been initiated and possession has been handed over to the landlord/respondent and now only question of recovery of Rs. 21,000/- is being agitated before the executing Court.
8. Conversely, the stand of the learned counsel for the landlord/respondent is that as relationship of landlord had been held to be existing between the parties and the tenant/petitioner had been adjudged to be liable for the payment of rent at the rate of Rs. 700/- per month w.e.f October, 1997 to April, 2000 so the Rent Controller was justified in ordering the recovery of said rent.
9. The only point which requires determination in the instant writ petition is if the Rent Controller could direct the recovery of rent from October, 1997 to April, 2000 at the rate of Rs. 100/- while passing order dated 5.5.2000? Admittedly the tenant/petitioner denied the existence of relationship of landlord and tenant and it was on this score that issue No. 1 was framed. A perusal of issues referred above reveals that no issue regarding default on the part of tenant/petitioner has been framed and rightly so as the relationship of landlord and tenant was being denied by the tenant/petitioner. This being the factual position even if it is assumed for the sake of argument that tenant/petitioner had not paid the rent for the period mentioned in the order dated 5.5.2000, no order for its recovery could be passed by the Rent Controller and the only remedy available to the landlord/respondent No. 3 was to file a suit for its recovery.
10. In the light of facts stated above the impugned order dated 5.5.2000 of the Rent Controller and judgment dated 15.7.2000 of the learned Additional District Judge, are maintained to the extent of ejectment of the tenant/petitioner However, the said orders being corum non judice to the extent of recovery of rent are hereby set aside. However, this order shall not affect the rights of the landlord/respondent No. 3 to affect the recovery of rent due against the tenant/petitioner.
11. With this observation, the writ petition stands disposed of.