QAZI EHSANULLAH QURESHI, J.---Through this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Waheed-ur-Rehman has called in question the orders dated 19-4-2000 and 19-5-2000 passed by the Rent Controller, Peshawar (respondent No,2 herein) and Additional District Judge I, Peshawar (respondent No,3 herein) respectively whereby the former ordered his eviction from the suit house and the latter maintaining the trial Court order, dismissed the appeal filed by the petitioner.
2. The brief narrated facts of the case are that Muhammad Ashraf respondent No,1 has instituted as ejectment application before the Rent Controller, Peshawar for the vacation of the suit house No,727-K situated at Mohallah Nishtarpura Hashtnagri, Peshawar on the grounds of default in payment of rent since December, 1996 and bona fide personal need.
3. The petitioner contested the application by submitting his written reply wherein he at the very outset denied the relationship of landlord and tenant and averred in his reply that he never remained tenant under respondent No,
1. In fact he is the mortgagee of the suit house on the strength of document No,3 dated 1-7-1995 with possession in lieu of Rs, 10,20,000 for a period of two years i,e, commencing from 1-7-1995 to 1-7-1997.
4. Out of the pleadings of the parties, the learned Rent Controller framed the following issues:-- ISSUES:
(1) Whether the relationship exists between the parties as landlord and tenant?
(2) Whether this Court has got the jurisdiction to try the instant petition?
(3) Whether the petitioner has got a cause of action?
(4) Whether the petitioner is entitled to a decree as prayed for?
(5) Relief.
5. Both the parties were afforded an opportunity to produce their evidence in support of their respective claims and after close of evidence and arguments addressed by the learned counsel for the parties, the learned Rent Controller passed an order of an eviction in favour of respondent No,1 against the petitioner. Dissatisfied with the same, petitioner preferred an appeal before the Appellate Court, which was also dismissed by the .Learned Additional District Judge I, Peshawar vide his judgment/order dated 19-5-2000. Hence the instant writ petition before this Court.
6. .Learned counsel for the petitioner contended that through cogent evidence the petitioner had proved, that the house in dispute was not on rent and it was in his possession/occupation as mortgagee. He substantiated his stance through documentary as well as an oral evidence conducive to this effect which was never shaken in the cross-examination while respondent No,1 could not be able to advance his case satisfactorily and placed reliance just on the oral hearsay evidence, which in such-like controversy cannot be considered or taken into account in presence of documentary substance available on record. He further contended that the judgments/orders of the Courts below based on mere assumptions, surmises and on conjectures vis-a-vis against the material on the file.
7. Learned counsel for respondent No,1 only relied on an oral statement of the P. Ws. And argued That the mortgage deed aforesaid was executed with the brother of the petitioner and not with him and that the mortgage deed produced by the petitioner in his favour is fake and manipulated document and maintained that the judgments/orders of the lower Courts are perfectly correct and in accordance with law.
8. We have gone through the record of the case with the assistance of the learned counsel for the parties. Appraisal of the evidence and record transpires that the Courts below acted without jurisdiction. There is ample misreading of evidence. The trial Court rather exercised its powers not vested in it. The apex Courts time to time issue instructions for the guidance of the subordinate Courts regarding the disposal of rent cases. It is a settled principle of law that Rent Controller after the pleadings has to pass rent deposit order before the framing of issues under section 13(6) of Rent Restriction Ordinance and adjourn the case so as to enable the tenant to furnish proof of rent deposit order in Court on the next date of hearing. The tenant if complied the rent deposit order, the Rent Controller shall frame issues in the light of the pleadings and thereafter record the evidence of the parties. However, in the otherwise eventuality the tenant in case failed to comply with the Court rent deposit order, his defence shall be struck off and he be ordered to vacate the premises in question forthwith and hand over the vacant possession of the suit property to the landlord. But in the event of denial of relationship of landlord and tenant, the Rent Controller, if convinced that the denial is genuine based on strong footings and also that not flimsy and frivolous, shall frame a preliminary issue whether the relationship of landlord and tenant exists between the -parties or not. But the Rent Controller is not supposed to frame other issues extracting from the pleadings nor can pass rent deposit order nor proceed on merits of the case because of the fact that due to denial of relationship of -landlord and tenant, the Rent Controller ceased to take cognizance and exercise jurisdiction to act as Rent Controller unless until the preliminary issue is decided in negative against the tenant. He is only Rent Controller when there exists relationship of landlord and tenant, However, after framing of preliminary issue and completion of evidence if it is established that the tenant denied the title of his landlord contumaciously, no useful purpose would be served in proceeding further under section 13 of the Ordinance ibid. He can' pass ejectment order strainghtaway without framing issues and recording evidence if the ejectment is sought on the ground of default as ultimately it will be an exercise in futility, which the tenant impliedly by his conduct admitted the non-payment of rent and thus the ground for eviction is stand proved. The Rent Controller in the instant case has exceeded his limits by framing other issues on merit of the case besides preliminary issue. Reliance is placed on 1984 CLC 1506; PLD 1986 Quetta 284; PLD 1996 Lah. 252 and PLD 1996 Pesh.8.
9. In the case in hand it is crystal clear from the record that the property in dispute was mortgaged property even on the date of institution of the ejectment application dated .2-6-1997. The mortgage deed with the brother of the petitioner which is admitted by the respondent No,1 was effective till 1-7-1997- meaning thereby that on the said date i,e, 2-6-1997 the relation between the petitioner and respondent No,1 was that of mortgagee and mortgagor. Fora while it is assumed that there was no mortgage deed whatsoever executed by respondent No,1 in favour of the petitioner still it is proved on the record that the property in question was not on rent with the petitioner but he was in occupation of the same as a result of mortgage. In the circumstances an ejectment application before the Rent Controller does not lie be it may if the same was redeemed.
The remedy available to respondent No,1 was that to file suit for possession before the Civil Court.
The evidence available on record has not been gone through with great care and caution by the Courts below, on the face of it, it is proved beyond any shadow of doubt that the relationship of landlord and tenant never existed between the parties at that time. It is a case of no evidence. The law on contrary is that the ownership does not matter. It is the relationship which matters. The definition of landlord and tenant as envisaged in section 2 of the Ordinance (supra) is as follows:-- "'Landlord' means any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf or for the benefit of any other person, or as a trustee, guardian, receiver, executor or administrator for any other person, and includes a tenant who sublets any building or rented land in the manner hereinafter authorised and every person from time to time deriving the title under a landlord. 'tenant' means any person by whom or on whose account rent if payable for a building or rented land and includes (a) a tenant continuing in possession after the termination of the tenancy in his favour, and (b) the wife and children of a deceased tenant, but does not include a person placed in occupation of a building or rented land by its tenant, unless with the consent in writing of the landlord or a person to whom the collection of rent or fees in a public market, cart-stand, or slaughter-house or of rents for shops has been farmed out or leased by a municipal, town or notified area committee, or by the Corporation of the City of Lahore or by the Lahore Improvement Trust or any other Improvement Trust."
10. In view of the above there left no place for doubt that in rent cases before Rent Controller the relationship of landlord and tenant is to be seen and adjudicated upon and the dispute between the owner and the occupant is out of his purview and not come within the domain of Rent Controller. So neither the petitioner remained tenant under respondent No,1 nor sitting as tenant under him nor authorised person on his behalf. The respondent No,1 relied on an oral interested witness not supported by solid material to the effect that the petitioner was tenant under respondent No,1 on the date of institution of the ejectment application.
11, In the wake of above discussion we are of the considered and firm view that the lower Courts in the case in hand acted without jurisdiction and without lawful authority by assuming the jurisdiction as Rent Controller. The Courts below failed to thrash out the correct conclusion from the evidence and did not apply their mind judiciously with prudence. In the forgoing situation respondent No,1 has got the remedy available to him to move the competent Court of jurisdiction by filing a suit for possession.
Resultantly this writ petition is allowed, both the judgments/orders passed by the Courts below are set aside and the ejectment application filed by respondent No,1 before the Rent Controller is dismissed. No order as to costs.