' Dr. Shahid Inayat and Engineer Baber Inayat, respondents in First Appeals from Order Nos.44 of 2001 to 32 of 2002 and Dr. Zahid Mehmood, respondent in First Appeals from Order Nos.53 of 2001 to 60 of 2001, the successor-in-interest of Sheikh Inayat Elahi, hereinafter called respondents, instituted ejectment petitions against appellant No,1 in each of the First Appeals From Orders, hereinafter called appellants.
2. The appellants after being served, submitted their written statements wherein they denied their relationship of landlord and tenant with the respondents and averred that they being tenants of Dr. Tariq Mehmood and Ali Mehmood, the other successors-in-interest of the said Sh. Inayat Elahi have been paying rent to them even during the lifetime of their predecessor-in-interest and as such the respondents 'have no locus standi muchless a cause of action to institute the petitions mentioned above.
3. The learned Rent Controller directed the appellants to deposit rent and when they failed to do the needful, he proceeded to strike off their defence and ordered the respondents to be put in possession of the premises, vide his order, dated 17-3-2001, hence these appeals.
4. As a common question of law and fact is involved in these appeals, they are disposed of by this single judgment.
5. The learned counsel appearing on behalf of the appellants by referring to the cases of Mst. Razia Begum and another v. Senior Civil Judge/Rent Controller, Charsadda and 2 others PLD 1996 Pesh. 8, Ahmad Shah v. Mst. Bibi Sakhia and another PLD 1990 Lah. 48 and Rehmatullah v. Ali Muhammad and others 1983 SCMR 1064, contended that where relationship of landlord and tenant is denied, the learned Rent Controller without framing a preliminary issue and handing down a verdict in this behalf, could neither have directed the appellants to deposit the rent nor have struck off their defence, therefore, the order being coram non judice is liable to be set aside by this Court especially when a civil suit is pending between the respondents and other legal heirs of the said Sh.
Inayat Elahi regarding their title as to the demised premises and an order maintaining status quo has been issued.
6. As against that, the learned counsel appearing on behalf of the respondents by placing reliance on the cases of Muhammad Ashraf v. Mst. Qamar Sultana PLD 2003 SC 228 and Ghulam Rasool v.
Mian Khursheed Ahmad 2000 SCMR 632 contended that where the relationship of landlord and tenant was frivolously denied, the Rent Controller needs not frame a preliminary issue as to the existence of such relationship, therefore, the order directing the appellants to deposit rent and the one striking off their defence in the wake of their failure to deposit it, being well within the competence of the learned Rent Controller suffers from no illegality or jurisdictional error so as to justify interference therewith. The learned counsel by referring to the case of Muhammad Daud v.
Mst. Surrya Iqbal and another PLD 2000 Pesh. 54 contended that ejectment applications could not be stayed or stalled on the plea of pendency of a civil suit. The learned counsel next contended that where the appellants failed to question the order of the Rent Controller directing them to deposit rent through a writ petition, they cannot question it now through the instant appeals.
7. I have gone through the record and carefully considered the submission of the learned counsel for the parties.
8. A perusal of the available record would reveal that the appellants right from the very inception denied their relationship of landlord and tenant between them and the respondents by stating that they have been tenants under Tariq Mehmood and Ali Mehmood and have been paying rent thereto and that none of the respondents ever had any such B relationship with them. Since this denial was not frivolous, the learned Rent Controller was bound to frame a preliminary issue about the existence of such relationship because it being a foundational fact and a condition precedent for the exercise of jurisdiction vested in the Rent Controller was to be determined first. The facts of the judgments rendered in the cases of Muhammad Ashraf v. Mst. Qamar Sultana and Ghulam Rasool v. Mian Khursheed Ahmad (supra) being distinguishable from the instant case have no relevance thereto as in those cases the relationship was denied without any solid foundation whereas denial in this case being well-grounded was to be resolved first by the learned Rent Controller before taking further steps as he could not have proceeded in a vacuum without attending to this issue.
9. The argument that an ejectment petition could not have been stayed or stalled on the plea of pendency of a civil suit is no doubt a tenable argument inasmuch as the prayer of the appellants for the stay of the ejectment petition is concerned, but it in no way furnishes a justification for dispensing with the need of framing a preliminary issue as to existence of relationship of landlord and tenant and handing down a finding thereon.
10. The arguments that failure of the appellants to question the order of the learned Rent Controller directing them to deposit rent through a writ petition will stop them to question it through the instant appeals is also misconceived on the face of it as such type of orders being interlocutory in nature can be challenged in an appeal against the final order of eviction. In the cases of Mian Muhammad Abdullah v. Sheikh Nabuddin 1971 SCMR 336 and Messrs Asad Brothers v. Ibadat Yar Khan 1991 SCMR 986, the Honourable Supreme Court while dealing with the provision in para meteria with section 17(8) of the Cantonments Rent Restriction Act held that as there is no right of appeal from an order passed under section 18(1), obviously any illegality in passing the said order can be urged as a ground in appeal from the first order before the High Court. The same view was reiterated in the case of Muhammad Daud v. Mst. Surrya Iqbal and others (supra) cited at the Bar by the learned counsel for the respondents.
11. As the learned Rent Controller without determining the jurisdictional fact directed the appellants to deposit rent and in the wake of their failure proceeded to strike off their defence, he cannot be held to have acted in accordance with the settled law of the land, I, have, therefore, no hesitation to allow these appeals, set aside the impugned orders and send the cases back to the learned Rent Controller for decision afresh after framing a preliminary issue as mentioned above. The parties are directed to appear before the Rent controller concerned on 6-6-2003.