By this second appeal under section 15 of the Urban Rent Restriction Ordinance of 1959, the appellant Mo. Khurshid who Sardar Khan has assailed the order dated 2th May 1975, whereby the District Judge, Quetta dismissed her two appeals and confirmed her summary ejectment from the premises.
2. The necessary facts leading to this appeal are that the house bearing No. 4-14/13 situated on Meconghey Road, Quetta, initially was rented out to Sardar Khan, the respondent No. 1, the husband of the appellant, at the rate of Rs. 60 per mensem. The landlords/respondents filed ejectment application in ti;e Court of Rent Controller, Quetta on 22nd February 1971, under section 13 of the West Pakistan Urban Rent Restriction Ordinance against Sardar Khan and one Mohammad Rashid on grounds that the respondent No. 1 was a bad paymaster and had failed to pay rent for about 30 months, in spite of his repeated demands. Nonetheless he had also sublet a pardon of the house without their consent and permission to the respondent No. 2. The respondents did not resist the application. In result, they both were ordered to be proceeded with ex parts. However, before the matter could finally be disposed of Mat. Khurshid filed an application on 17th May 1971, praying that the way ire allowed to be joined as an opponent in the ejectment proceedings, for the reason that she was in exclusive possession and occupation of the house as a tenant. Her application was resisted by the landlords on the ground that Sardar Khan was their tenant but not the appellant.
However, the Court allowed her application and ordered that she be arrayed as opponent in the ejectment application. She filed written statement. The Rent Controller, without framing any issue in respect of relationship of landlord and tenant between the parties, directed the appellant to deposit arrears of rent as well as monthly regularly. The appellant challeng--ed the order before the District Judge, Quetta. On 26th July 1973, the District Judge, set aside the order of the Rent Controller and directed the Rent Controller, Quetta to frame an issue in respect of "relationship of landlord and tenant between the parties" before passing of an order under section 13, subsection
(6) of the Ordinance.
3. When the matter came back before the Rent Controller, Quetta, the landlords filed amended application, asserting that "respondent No. 2, wife of the respondent No. 1, who has been joined as a party on her assertion, was liable to pay the rent for the last 39 months commencing from 1st January 1970, amounting to Rs. 2,340," On strength of this amended application, the Rent Controller ordered the appellant to deposit arrears ofrent and future monthly rent under section 13, subsection (6), without framing the issue of "`relationship of landlord and tenant between the parties" in utter violation of the direction of the District Judge, Quetta. On 27th July 1974, the petitioner filed appeal against this order in the Court of District Judge, Quetta. It appears that no stay order was granted in favour of the appellant. Meanwhile, on her failure to deposit the arrears of the rent, her defence was struck off. She was ordered to be ejected summarily. The appellant challenged this order before the learned District Judge, Quetta too. By his consolidated order dated 27th May 1975, the District Judge, dismissed the two appeals of the appellant.
4. This appeal is directed against the a5ove-said order.
5. Mr. Azizullah Memon, counsel for the appellant vehemently argued that it was incumbent upon the Rent Controller. Quetta to have framed the issue of the relationship of landlord and tenant between the parties, before passing the order under section 13(6) of the Ordinance of 1959. On his failure of doing so, his two orders were ab initio, illegal, void and having no force of law. The learned counsel relied on Muhammad Ismail v. Israr Ahmed (PLD 1961 Lah. 601), where it was held :---- "that the issue whether the relationship of the landlord and tenant exists between the parties is one of jurisdiction and should be determined first ; in case the answer be in the negative, the Controller loses seisin over the Its and must stay his hands forthwith."
6. The next authority relied was, Mst. Karam Bibi v. Mfr Muhammad Hassan and others (PLD 1962 Quetta 67). Where it was held ;--- "It is true that a mere denial of tenancy howsoever frivolous, would not oust the jurisdiction of the Controller, but when there is such a denial, the Controller must determine that controversy before he makes an order for the deposit of rent;"
7. The third authority relied by, him, was Akhtar A.I Parvez v. Akhtar Rahman (PLD 1963 Lah. 390), where it was held ;--- "that deposit of arrears of rent,, by tenant may not be ordered where tenant objects to jurisdiction of Rent Controller, such objection being based on non-existence of relationship of landlord and tenant. In such case, Question of jurisdiction is to be decided first."
8. The fourth authority relied upon by him, was. Mehdi Hassan v. Ghulam Muhammad etc. (PLD 1984 Lah. 648), where it was held;----- "The Rent Controller, therefore, can order a respondent to deposit the rent only in case when either it is admitted that he is tenant of the petitioner or when having been disputed, it is proved and decided that the respondent was, in fact, the tenant."
9. The last authority relied upon is Abaullah Bhai and others v. Ahmad Din (PLD 1964 SC 106), where it was held :--- "The reference to "leased premises" in the definition of "tenant" also shows that the existence of a lease is implied. The intention of the Karachi Rent Restriction Act, appears to have been to give additional protection to those who according to the law as it stood were tenants and not to confer tenancy rights on persons who in accordance with law were never tenants. Accord the to the ordinary law only a person who has fn his favour a lease In a tenant."
10. Mr. Munawar Ahmed Mirza, the learned counsel for the respon--dents repudiating the contentions of the appellant stated that after the amend--ment of the pleading by the respondents, it was not necessary for the Rent Controller to have framed the issue of the relationship of landlord and tenant between the parties. As by the amendment, the respondents purported to accept the appellant to be their tenant. He has emphasized that there was nothing wrong with the order of the District Judge, which would necessitate Interference of this Court. The learned counsel drew my attention to authority reported in Safdar Alt v. Mohammad A.I (PLD 1974 Quetta 1), where it was held ;--- "if the tenant raises an objection about jurisdiction which is frivolous or fame objection as in the present case the Rent Controller should decide the objection first provided his attention is drawn to it by the tenant."
11. The learned counsel also referred to Faqir Muhammad v. Dr. Muhammad Yasin anti 2 others (PLD 1864 Loh. 686), where it was held :---- "That the Rent Controller is a special Tribunal constituted under the West Pakistan Urban Rent Restriction Ordinance, 1959. He is not a Court stricto sensu and the proceedings before him cannot be challenged on the ground that he had failed to observe the procedure prescribed for the civil Courts The fact that no issue was framed, by itself, will not, therefore, matte the order of the Rent Controller illegal or irregular."
12. The last authority relied upon by him was Ibrahim v. Mohammad Hussain (PLD 1975 SC 457), where it has been held:--- "The interlocutory order of provisional character made under first part of section 13, subsection (6) not necessary resulting in striking of defence and order of ejectment not appealable under section 15 subsection (1)."
13. Before analysing the stand of the two learned counsel, it is necessary to look into the scope and operation of West Pakistan Ordinance 6 of 1959. Subsection (2) of section 13 reads; "A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf.
The definition of word "Controller" has been given in subsection (b) of section 2 means a judicial officer, who is appointed by the Provin--cial Government to perform the functions of the Controller under this Ordinance.
The definition of word "landlord" is given in subsection (c) of this section as, "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 of 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 title under a landlord.
The definition of the word "tenant--" is given in subsection (1) as, 'tenant' means any person by whom, or on whose account rent is payable for a building or rented land and includes (a) a tenant con--tinuing 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 of fees in a public market, cart-stand, or slaughter-house or of rents for shops have been framed 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."
It is thus necessary that the dispute should be between 'landlord' and `tenant' to give seisin over the Its to the Controller. If any one arm giving seism over the Controller misses, the Rent Controller loses jurisdiction over the dispute. The gist of the authorities relied upon by the appellant is that in case of dispute, the Rent Controller had to frame an issue regarding relationship of landlord and tenant between the parties, irrespective of the fact whether the objection was raised by the landlord or by tenant.
14. In strict sense, it could be said that a Rent Controller shall have jurisdiction to entertain or decide an application under the provisions of this Ordinance, only in a case, where there is relationship of landlord and tenant between the parties. In case where there is a dispute in respect of the relationship of landlord and tenant between the parties. Irrespective of the fact whether the objection is raised by a tenant or by the landlord. It is in. Cumbent upon the Rent Controller to frame an issue as to whether there exists relationship of landlord and tenant between the parties or not. In absence of such adjudication on the issue the Rent Controller does not have) jurisdiction to proceed further into the matter. As such the both orders oil the Rent Controller suffer for wart of jurisdiction. Both orders, could be said as void orders. In case reported in Yousuf A.I v. Muhammad Aslam Zia and 2 others and Muhammad Aslam Zia and 2 others v. Yousuf A.I (PLD 1956 SC (Pak.)
104), it has been held that :---- "Where the Legislature clothes an order with finality, it always assumes that the order which it declares to be final is within the powers of the authority making it, and no party can plead as final an order made in excess of the powers of the authority making it, in the eye of the taw such order being void and non-existent. And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstucture of rights and obligations built upon them, must, unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order of which they are founded."
15. Moreover, in the first appeal decided on 26-7-1973, the lea nod District Judge, had categorically directed the Rent Controller. Quetta to frame an issue in respect of the relationship of landlord and tenant between theparties and thereafter pr father with theUndoubtedly the directions of the appellate Court were not complied with by the Rent Controller, Quetta. It appears that the Rent Controller was satisfied with mere amendment by the landlords in the application The Rent Controller, did not care to loot to the wordings of the pare three o1 the application. In the amended application the landlords have not accepted the appellant to be their tenant. They have said that "the respondent No. .2 has been joined on her own assertions as party in the proceedings and is in occupation of the promises in question a-- a tenant since let January, 1970, on v"" They have further added that "the respondent No. 2 it as such liable to pay real for 39 months from let January 1970," By these words alone, it cannot be argued that the respondents had accepted the appellant as their tenant. In pare I of the application, the appellants have said that the appellants are landlords and the respondent No. 1 was their tenant In the second Para they have said that the respondent No. I was a bad paymaster and trouble some tenant.The minute study of these paras would clearly ladiate that the respondents were reluctant to accept the appellant as their tenant.
In such case, where the dispute its not between a tenant and a landlord", the provisions of the Rent Restriction Ordinance could not be ovoked. Evidently--- the Rent Controller shall cease to have jurisdiction to adjudicate the dispute. Per it appears that from the vary beginning the respondents have claimed that Sardar Khan was their tenant, The appellant here beers joined as a party on her own request.
16. After, the direction of the learned District Judge, the respondent is did amend the application, sad stated that the appellant eras liable to pay rent but they did not except her to be their tenant in clear words.
17. In view of the circum it was necessary, that the sue of the relationship of landlord arid tenant should have been framed by the rent Controller and the allowed to lead their evidences before dealer further into the matter.
18. In view of my findings, given above. I am of clear view that the Rent Controller ought to have decided the issue of relationship of landlord and tenant between the parties. Albeit the authorities referred lay the learned counsel speak objection raised by the tenants an ejectment proceedings boat, the same principles can be applied in cases where then is such objection raised by a landlord. The cumulative effect of my above observation in that the both orders dated 2711h July 1974, and 23rd October 1974, suffer from infirmity. In result, the impugned order Is set aside.
19. The matter is remanded to the Rent Controller, Quetta with direction to frame the issue of relationship of landlord and tenant between the parties as directed by the learned District judge earlier and thereafter take further proceedings. However while remanding the case, I would make it clear that the Rent Controller should not be prejudiced by any observation made in this judgment, He is at liberty to decide the matter on evidence produced by the parties before hire.
20. With these observations, the appeal is disposed of with no order as to costs.
21., This record and papers of the case be returned forthwith to the Rent Controller, Queta. He is directed to dispose of the matters within two months
22. This judgment constitutes the details of the short order announced on 5th November 1977.