' The petitioner, through the filing of the present Constitutional petition, has called in question judgment dated 20-2-2004. Whereby the learned Additional District Judge, as appellate authority, dismissed petitioner's appeal and maintained the ejectment order, dated 2-10-2003, passed by the learned Rent Controller, through which he, after striking off the defence of the petitioner, on account of non-compliance of order dated 18-9-2003, passed under section 13(6) of Punjab Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as Ordinance accepted the ejectment petition, filed by respondent No.3.
2. Precisely stated the facts of the case are that respondent No.3 filed an ejectment petition, seeking the eviction of the petitioner from the house in question on the grounds of default in the payment of rent and his bona fide personal need, before the learned Rent Controller, asserting therein, that the petitioner was a tenant under the mother of the respondent No.3 at a monthly rent of Rs.9000 since September, 1999, that the mother of the said respondent transferred the property in question in the name of the said respondent, that the respondent No.3 served a notice under section I3(a) of Ordinance and that the petitioner paid the rent till August, 2002 and thereafter committed default. The petitioner contested the ejectment petition, inter alia, pleading that no relationship of landlord and tenant exists between the parties, however, he admitted that the mother of the respondent No.3 was his landlady and he had been paying rent to her, as no intimation of transfer of property was given by the mother of the said respondent. The learned Rent Controller, after finding that the petitioner has admitted the tenancy under the mother of the respondent No.3, therefore, he has admitted the case of the respondent No.3 including the service of notice under section 13(A) of the Ordinance, directed the petitioner to pay the arrears of rent, at the rate of Rs.11979 from August, 2002 till September, 2003 and also to deposit the future monthly rent, vide order dated 18-9-2003. The petitioner did not comply with the terms of the said order, therefore, the learned Rent Controller struck off his defence and consequently passed the ejectment order, vide order dated 2-10-2003. Petitioner's first appeal was dismissed by the learned Appellate Authority. Vide judgment dated 20-2-2004, hence the present Constitutional petition.
3. Learned counsel for the petitioner, while reiterating the following admitting note dated 3-3-2004, passed by this Court, has submitted that the impugned order/judgment are not sustainable in law.
"Learned counsel, while referring to para.1 of the written reply to the ejectment petition, filed by the petitioner, has submitted that despite the fact that the petitioner denied the existence of the relationship of landlord and tenant between the parties, yet the learned Rent Controller proceeded to pass an order under ,section 13(6) of Punjab Urban Rent Restriction Ordinance, 1959, which order has illegally been upheld by the learned Additional District Judge. In the said backdrop, the precise submission of the learned counsel is that both the order/judgment are without jurisdiction. He has referred to the judgments reported as Adamjee v. Haji Ghulam Ali 1986 CLC 2376 and Malik Abdul Rashid v. Muhammad Gulfam 1984 CLC 2835. He, while relying upon the challan forms/receipts, placed on record, has further submitted that the petitioner has deposited the rent favouring the erstwhile landlady and the mother of the respondent, thus, there is no default on the part of the petitioner."
' Conversely, the learned counsel for the respondent has submitted that both the Courts have concurrently decided in favour of the respondent, therefore, the said findings cannot be interfered in exercise of the Constitutional jurisdiction of this Court. He has further submitted that as notice Under section 13(A) of Ordinance was served upon the petitioner, therefore, there was no need to decide the issue of relationship of landlord and tenant. He has referred to the following judgments:- - ' Zafarul Haq v. Waris Iqbal and another PLD 1979 Lahore 793; Mst. Umme Khatoon v. Mst. Umme Salam PLD 1990 SC 755; Syed Azhar Imam Rizvi v. Mst. Salam Khatoon 1985 SCMR 24; Dr. Quraishul Mujtaba Qami v. S. Usman Ali Kazmi 1992 CLC 2114 and Syed Hamid Hussain v. Mst. Humaira Ghias 1986 CLC 1873.
4. I have considered the judgments cited at bar keeping in view the principle laid down by this Court in a case reported as Sahibzada Anwar Hamid v. Messrs Topworth Investments (Macau) Ltd.) through Chairman and 5 others 2004 CLC 399, which is based on a case reported as Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213. It would be appropriate to reproduce the relevant portion of the judgment, which reads as follows:-- "I have considered the submissions made by the learned counsel for the parties and had the benefit of going through a large number of precedent cases cited at the bar by the learned counsel. Before respective contentions of the learned counsel for the parties are examined, I will like to refer to the following observations of the Honourable Supreme Court made in the case of Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213:-- "It is well-settled that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of expressions which may be found there are not intended to the expositions of the whole law but governed and qualified by the particular facts of the case in which such expressions are to be found (Quinn v. Len$hem 1901 AC 495, 506."
' The following observations in the case of Quinn (supra) were also noted with approval: "A case is only an authority for what it actually decides, I entirely deny that it can be quoted for a proposition that may seem to follow logically from it.
5. I have examined the reply to the ejectment petition, filed by the petitioner, and find that the petitioner has specifically raised the plea that no relationship of landlord and tenant exists between the parties. It would be appropriate to reproduce the preliminary objection in the written reply which reads as follows:-- "That the petition under reply has been filed by the petitioner without any cause of action against the answering respondent because there is absolutely no relationship of landlord and tenant exists between the petitioner and the respondent. Therefore, the petition merits dismissal."
' Additionally, the learned Rent Controller, while passing order dated 18-9-2003, under section 13(6) of the Ordinance has also taken note of the fact that the petitioner has denied the relationship of landlord and tenant.
6. The learned Rent Controller, instead of framing the issue regarding the existence of relationship of landlord and tenant, resolving the said controversy and calling upon the ejectment petitioners to prove that issue, proceeded to pass an order on 18-9-2003, thereby directing the petitioner to deposit the arrears as well as future monthly rent. In order dated 18-9-2003, the learned Rent Controller has taken note of the fact that the petitioner has denied the relationship of landlord and tenant, however, in the said order, it has erroneously been held that as the petitioner entered into an agreement of tenancy with the mother of the respondent No.3, therefore, the petitioner has admitted the contention of respondent No.3 and service of notice under section 13(a) of the Ordinance. Under the circumstances, the learned Rent Controller, under misconceived notions, has held in the aforesaid order dated 2-10-2003 that "the relationship of landlord and tenant is established and respondent has not produced any proof for payment of rent from August, 2002".
This approach of the learned Rent Controller, to say the least, is violative of the established law on the subject. Undoubtedly, in order to establish the relationship of landlord and tenant a landlord has to produce documentary or/and unimpeachable oral evidence. I am of the considered view that without deciding the issue of relationship of landlord and tenant, the learned Rent Controller had no jurisdiction to proceed with the case and he cannot assume jurisdiction unless the said issue touching the jurisdiction of the learned Rent Controller is resolved in the first instance. Above view is also fortified by the provisions of section 13(6) of the Ordinance itself, which envisages that the learned Rent Controller shall direct a "tenant", to deposit the arrears of rent and future monthly rent. It presupposes that a person, who is to be directed by the learned Rent Controller, to comply with the orders passed under section 13(6) of the Ordinance, must be a "tenant". If a person denies the status of a tenant, in the proceedings before the learned Rent Controller, to my mind, the learned Rent Controller is divested with the jurisdiction to pass rent deposit order against such a person. In such circumstances the learned Rent Controller, at the first instance, in order to assume the jurisdiction in the matter, shall frame an issue regarding the existence of relationship of landlord and tenant, call upon the ejectment petitioner to prove the said issue through documentary or/and oral evidence, give opportunity to the respondent to rebut the evidence, if produced by the petitioner, and then to pass a reasoned order regarding the fate of the said issue.
In case of denial of relationship of landlord and tenant, the learned Rent Controller without adopting the said course of action, is, in no way, empowered to direct a tenant to deposit the arrears of rent or future monthly rent in exercise of jurisdiction conferred upon the learned Rent Controller under section 13(6) of the Ordinance. It has been held in Tariq Ali Sheikh v. Rent Controller Mr. Khalid Nawaz Lahore and another 1998 CLC 460 that where the relationship of landlord and tenant is denied, the Rent Controller has to decide the said issue before passing order under section 13(6) of the Ordinance. The view taken in the case of Mst. Razia Begum and another v.
Senior Civil Judge (Rent Controller), Charsadda and 2 others PLD 1996 Peshawar 8 is that where the relationship of landlord and tenant was denied by a person, it was incumbent upon the Rent Controller to first decide the issue in respect of existence or non-existence of relationship of landlord and tenant between the parties. It has been held in Kamran Butt v. Lt. Col. Syed Iftikhar Ahmad PLD 1991 Karachi 417 that in the absence of decision on the issue of relationship of landlord and tenant, the proceedings before the leanred Rent Controller were coram non judice.
7. In the above perspective, I am of the firm view that order dated 18-9-2003, passed by the learned Rent Controller, in purported exercise of powers under section 13(6) of the Ordinance, is without jurisdiction, as he passed the said order in complete oblivion of the law on the subject and completely forgetting that the relationship of landlord and tenant has been denied by the petitioner and it is incumbent upon him to firstly decide the said issue.
8. As the basic order, dated 18-9-2003, upon which the entire superstructure has been built, is without jurisdiction, therefore, subsequent orders, on the basis of which the ejectment has been ordered and petitioner's appeal was dismissed, have also no legal value in the eye of law. It has been held in Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC 104 that:- "And if on the basis of a void order subsequent orders have been passed either by the same anthority or by other authorities, the whole series of such orders, together with the superstructure 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 on which they are founded."
In view of the law declared, as the basic order passed by the learned Rent Controller was a void order, therefore, all the ensuing orders would not be sustainable in law. Surprisingly, the learned Additional District Judge did not advert to the said material proposition of law and he mechanically dismissed the appeal without application of mind and in a stereotype manner.
9. In the above perspective, I have examined the impugned order/judgment and find that they are not sustainable in law, as they are without jurisdiction. In view whereof, I am inclined to set aside the order/judgrnent and remand the case to the learned Rent Controller for its decision, afresh.
10. Upshot of the above discussion is that the present petition is allowed and orders dated 18-9- 2003 and 2-10-2003, passed by the learned Rent Controller and the judgment dated 20-2-2004, passed by the learned Appellate Authority, are declared to be illegal, without jurisdiction and having no legal affect, thus, the said orders/judgments are set aside. Resultantly, the ejectment petition, filed by the respondent No.3, shall be deemed to be pending before the learned Rent Controller, who, at the first instance, shall frame the issue regarding the existence of landlord and tenant and after calling upon the parties to produce their evidence, shall decide the said issue and of course in accordance with law within a period of six months from today.