TALAAT QAYYUM QURESHI, J.---Wahabullah Shah, respondent No.1 tiled eviction petition in the Court of learned Rent Controller, Kohat for eviction of petitioner from suit shop. Petitioner who was respondent in the said petition denied the relationship of landlord and tenant between the parties in the written statement tiled by him. The learned Rent Controller, ignoring the said defence, ordered the petitioner/tenant to deposit monthly rent at the rate of Rs.4,000 per month from January, 2000 to December, 2001 and also future rent at the same rate till decision of ejectment petition before the 15th of every month. The rent deposit order was passed on 8-12-2001. Petitioner submitted application to the Rent Controller for setting aside his order but his application was dismissed vide order dated 5-3-2002. Feeling aggrieved due to the said order petitioner filed appeal in the Court of learned Additional District Judge, Kohat, but the same was dismissed vide judgment/order dated 24-7-2002.
2. It is worth-mentioning that respondent No. 1 had also filed an appeal against the order dated 5- 3-2002 with the plea that since the petitioner/tenant had fifed to deposit monthly rent as per order, dated 8-12-2001, therefore, his defence should have been struck of. The appeal tiled by the landlord/respondent No.1 had also been dismissed through a consolidated judgment dated 24-7- 2002. Now the petitioner has filed writ petition in hand whereas respondent No.1 has tiled Writ Petition No.992 of 2002 thereby calling in question the judgment/order dated 24-7-2002 passed by learned Additional District Judge, Kohat. We shall dispose of both the writ petitions through single judgment because both emanate from single judgment of learned Additional District Judge.
3. Haji M. Zahir Shah, learned counsel representing the petitioner in Writ Petition No.900 of 2002 and respondent in Writ Petition No.992 of 2000 argued that the petitioner/tenant had specifically denied the relationship of landlord and tenant in the written statement filed by him, therefore, it was incumbent upon the learned Rent Controller to have framed only one issue with regard to the existence of relationship of landlord and tenant and the learned Rent Controller could not pass order for deposit of tentative rent under section 13(6) of the Urban Rent Restriction Ordinance, 1959.
The order passed by him dated 8-12-2001 directing the petitioner (Irfanullah Shah) to deposit the rent was therefore illegal and without jurisdiction. Reliance in this regard was placed on 2000 YLR 1440, PLD 1991 SC 317, PLD 2001 Peshawar 42 and PLD 1996 Peshawar 8.
4. On the other hand Mr. Pir Bakhsh Mehtab, Advocate learned counsel representing respondents in Writ Petition No.900 of 2002 and petitioners in Writ Petition No.992 of 2002 argued that although in the written statement the petitioner/tenant had denied the relationship of landlord and tenant but since the learned Rent Controller after going through the pleadings of the parties had specifically directed him to deposit monthly rent, therefore, it was binding on the petitioner/tenant to have deposited the rent as directed by the Court. Since the petitioner/tenant had failed to comply with the order of the learned Rent Controller dated 8-12-2001, therefore, the defence should have been straightaway struck of and eviction order should have been passed which was not done by the Rent Controller, instead the respondent/landlord was directed to produce evidence. Both the Courts below have failed to appreciate that the petitioner/tenant had not only complied with -the order of the learned Rent Controller but had also admitted through application submitted for setting aside the order dated 8-12-2001 that he did not deposit the rent, therefore, after his admission the striking of of the defence was must. It was also argued that Irfanullah Shah petitioner/tenant had also filed Suit No.237/1 in the Court of learned Senior Civil Judge, Kohat. The respondent (Wahabullah Shah) submitted application under Order 7, rule 11, C.P.C. In the suit which was allowed vide judgment and decree dated 12-9-2002 and the suit tiled by the petitioner was dismissed against which no appeal has been tiled by the petitioner Irfanullah Shah.
5. Rebutting the said arguments learned counsel for the petitioners Haji M. Zahir Shah, Advocate, argued that the appeal tiled by the petitioners is pending decision in the Court of learned Additional District Judge, Kohat.
6. We have heard learned counsel for the parties and perused the record.
7. The question that requires determination in this case is as to whether the Rent Controller could direct the tenant to deposit tentative rent without framing issue with regard to the existence of relationship of landlord and tenant? The answer to this question is that in a case where the relationship of landlord and tenant is disputed, the Rent Controller should frame the issue regarding the existence of relationship of landlord and tenant and Rent Controller could not pass rent deposit order. A similar question came up before Division Bench of this Court in Mst. Razia Begum and another v. Senior Civil Judge/Rent Controller, Charsadda and 2 others (PLD 1996 Peshawar 8) in which it was held that:-- "Now coming to the controversy regarding relationship of landlord and tenant between the parties: In the case in hand the tenants-petitioners in their written statement at the very outset denied the relationship of landlord and tenant. In such-like situation it was incumbent upon the Controller to first decide the issue in respect of existence or non-existence of relationship of landlord and tenant between the parties. But strangely enough the Controller without framing a preliminary issue directed the petitioners for deposit of the monthly rent. There appears no justification in law for the Controller to have ordered for the deposit of rent before assuming jurisdiction and deciding the issue with regard to the relationship of landlord and tenant between the parties in absence of evidence. Such proceedings before the Rent Controller were coram non judice, ultra vires and without lawful authority, support was sought from PLD 1991 Karachi 417 and PLD 1979 Quetta 39.
When the relationship is denied a preliminary issue is to be framed and the evidence in support thereof pro and contra is invited and in case the Court reaches to the conclusion that there existed relationship of landlord and tenant between the parties then in such event the Controller can pass an ejectment order straightaway without proceeding further in the matter. This view finds support from the rule laid down in the judgment reported in PLD 1982 Lahore 332."
5. Likewise in Muhammad Salim v. Iltaf Hussain (1998 CLC 1883) it was held:-- "It is settled rule, that if an objection to the jurisdiction of Tribunal or Court is raised the same shall be decided as a preliminary issue before passing an order, which can be passed on assumption of jurisdiction. "
Similarly in Habib Ismaeel v. Muhammad Ayyub (2000 YLR 1440) it was held:-- "It is settled proposition of law as the existence of relationship of landlord and tenant between the parties 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 tentamounts 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: PLD 1991 SC 317 (Imam Din's case); 1983 CLC 380; PLD 1961 Lahore 601; 1983 CLC 2865."
6. In the case in hand the petitioner/tenant had denied the existence of relationship of landlord and tenant between the parties. The learned Rent Controller without framing issue directed the tenant vide order dated 8-12-2001 to deposit monthly rent at the rate of Rs.4,000 from January, 2000 to December, 2001 and future rent at the same rate till decision of the ejectment petition before the 15th of every month. It was incumbent upon the Rent Controller to first frame the issue mentioned above, record the evidence about the existence or non--existence of the relationship of landlord and tenant between the parties and then if the result proved the existence of the said relationship, then in such eventuality, the Rent Controller could straightaway pass ejectment order against the tenant who denied the relationship. But strangely enough the learned Rent Controller without framing preliminary issue directed the petitioner to deposit the monthly rent. There appears to be no justification in law for the Rent Controller to have ordered for deposit of rent before framing and deciding the issue regarding relationship of landlord and tenant. Therefore, the order dated 8-12- 2001 and all the subsequent orders are illegal, coram non judice and without lawful authority. We, therefore, allow Writ Petition No.900 of 2002, set aside the impugned judgments/orders and remand the case back to the learned trial Court with direction to frame preliminary issue regarding existence of relationship of landlord and tenant between the parties; record evidence and then decide the same strictly in accordance with law within a period of six months.
7. In view of our above order Writ Petition No.992 of 2002 is dismissed.