1986 PLP 1781 (MLD)

(b) Constitution of Pakistan (1973) ‑‑Art. 199‑‑Cantonments Rent Restriction Act (XI of 1963), S. 17 (8)‑‑Orders passed concurrently by Courts below‑‑Validity of‑‑Constitu tional jurisdiction, exercise of‑‑Validity of orders passed concurrently by Courts below, held, could not be disturbed by invoking constitutional jurisdiction of High court where petitioner had failed to establish that such orders were passed without jurisdiction or without legal authority of Courts below. Salah uddin for Petitioner. Habibur Rehman for Respondents. Date of, hearing: 23rd April, 1986. . One Sardar Nazar Muhammad, the father of respondent No.3 had rented out Bungalow No.16 4/A Central Avenue, Defence Housing Authority Karachi to the petitioner under an agreement, dated 15‑8‑1975 on a monthly rent of Rs. 3,

500. According to the respondent No.3 out of love and affection Sardar Nazar Muhammad gifted this property to her and a declaration of gift was made on 18‑12‑1975. Her name was mutated in the records of right as well as with the Defence Authority. Sardar Nazar Muhammad was assassinated at Quetta .on 20‑1‑1976‑ A legal notice, dated 18‑10‑1978 was addressed on behalf of respondent No.3 to the petitioner intimating transfer of property and claiming arrear from 16‑11‑1975. The petitioner replied that rent upto 19‑7‑1979 were paid to Nazar Muhammad and asked for the title deeds. The payment was denied by the respondent No.3. She obtained succession certificate on 17‑8‑1979 which was duly extended on 9‑3‑1980 by Court of Civil Judge, Quetta. On 8‑5‑1979 the respondent No.3 filed ejectment application, against the petitioner in the Court of Additional Rent Controller Cantonment Karachi on ground of default in payment of rent and personal requirement. The petitioner filed written statement taking the plea that advance rent upto June, 1979 has been paid to Nazar Muhammad against a receipt and denied that property has been gifted to the respondent No.3. He also pleaded that the rent for the month of October, 1976 was paid to Sardar Nazar Muhammad through a cheque which was realized by him. The rent for the month of December, 1976 was remitted by cheque through registered, post but it was returned as Nazar Muhammad had gone to U.S.A. Thereafter rent from November, 1976 to June, 1977 was deposited in Court. It was pleaded that subsequently Nazar Muhammad approached petitioner and was allowed to withdraw the same. The rent from June 1977 to July, 1979 was paid to Nazar Muhammad under a duly executed receipt It was pleaded that an ejectment application was filed .in March, 1978 in the name of Nazar Muhammad and was verified by Eassa as attorney of Nazar Muhammad but when the power of attorney was challenged by the petitioner the case was withdrawn. The petitioner filed an application to frame a preliminary issue relating to relationship between the parties. The issue was framed and parties were asked to lead evidence on 15‑8‑1979. On that date the respondent No.3 examined her son and a witness from the Military Office and closed her side. The petitioner was asked by the Controller to lead the evidence. The petitioner filed two applications ore for adjournment and the other for summoning the witnesses. Both the applications were rejected by the Controller adjourned the hearing to 16‑8‑1979 for passing order regarding relationship of landlord and tenant between the parties. The respondent No.2 filed an appeal against the order, dated 15‑8‑1979 which was admitted by the District Judge on 20‑9‑1979 and' stay was granted. The bailiff could not serve the order on 20‑9‑1979 but on 21‑9‑1979 after 8‑30 a.m. he served the notice on tfie Controller. The Controller, however, passed an order for deposit of rent directing the petitioner to deposit Rs. one lac and fifteen thousand being the arrears' of rent from November, 1975 to August, 1979 within two months. The petitioner filed an appeal against this order and an application for transfer of rent' case. Both the appeals were dismissed on the ground that no appeal was maintainable against interlocutory order. The respondent No.3 filed an application before the Controller on 20‑12‑1979 for striking of the defence of respondent No‑2 as he had failed to comply with the order, dated 21‑8‑1979 passed by the Controller. The defence was struck of by order, dated 8‑3‑1980. The petitioner filed an appeal which was allowed and the case was remanded for decision on preliminary issue. This order was challenged by respondent No.2 in Constitutional Petition No.S‑152/81 which was partly allowed on 22 5‑1983 and it was held that the order of the learned District Judge accepting the appeal against the order, dated 15‑$‑1979 passed by the Controller is declared to be without lawful authority and to that extent it was set aside. The order of the learned District Judge setting aside the orders of the learned Controller, dated 21‑8‑1979 and 8‑3‑1980 were held to be legal valid and case was remanded to the Controller to pass an order under section 17 (9) of the Cantonments Rent Restriction Ordinance after hearing the parties The petitioner filed an application for review as there was typographical error and section 17(9) was wrongly typed instead of section 17(8). This correction was duly made on 4‑9‑1983 but the learned counsel for the petitioner stated that he wanted to press other grounds and the matter was fixed on the next day Le 5‑9‑1983. After hearing the parties it was found necessary to make certain clarification and the following order was passed on 5 9‑1983 operative part of which is reproduced as follows: The order, dated 15‑8‑1979 passed by the learned Additional Rent Controller did not determine the relationship between the petitioner and respondent No.2 which was in fact decided ,by order, dated 21‑8‑1979. This would remove the ambiguity that has been created due to remarks regarding order, dated 15 8‑1979. It is, however, made clear that in spite of this clarification the result of the judgment shall remain the same. The learned Rent Controller will now proceed with the case from the point it was left on 16‑8‑1979. The order, dated 15 8‑1979 has been maintained and it stands as it is. In view of the proceedings which have dragged on I would like to further clarify that the Additional Rent Controller will decide the relationship of landlord and tenant between the parties on the basis of evidence on record which existed on 15‑8‑1979." The matter was taken up by the learned Controller who by order, dated 30‑10‑1984 held that the relationship of landlord and tenant exists between the parties and the preliminary issue was decided in the affirmative. He further held' that in view of P L D 1974 Lah. 489 as the petitioner has denied the relationship and ejectment is being sought on ground of default the petitioner is liable to be ejected. The petitioner challenged this order in appeal which was dismissed by the impugned judgment, dated 9‑12‑1985. The petitioner has now challenged this judgment as well as the order of the Controller, dated 30‑10‑1984. Mr. Salahuddin, the learned counsel for the petitioner has taken me through all the orders that were passed from time to time culminating in the impugned order/ Judgment and contended that in view of order passed on 22‑5T1983 the learned Controller acted without jurisdiction in not framing the real issue regarding default and failing to pass an order under section 17 (8) for deposit of rent. The learned counsel has mainly relied on the judgment passed in the Constitutional Petition No.152)81 on 22‑5‑1983 where it was held that the case is remanded to the Controller to pass order under section 17 (8) of the Cantonment Rent Restriction Ordinance. But this order was clarified by order, dated 15‑8‑1.983 as reproduced above and the Controller was to proceed with the case from the point it was left on 16‑8‑1979. As the Controller's order, dated 15‑8‑1979 had been maintained and the Controller was to decide relationship of landlord and tenant between the parties on the basis of evidence on record, which existed on 15‑8‑1979 the order of the Controller, dated 30‑10‑1984 does not suffer from any infirmity. According to the learned counsel for the petitioner the Controller should have first passed the order under section 17 (8) for deposit of rent and hot on the issue relating to the relationship of landlord and tenant between the parties. The contention seems to be misconceived as the operative part of the order dated 22‑5‑1983, on petitioner's application was duly clarified by the order, dated 5‑9‑1983 and the Controller was first to determine the relationship between the parties. Even if for argument sake the Controller had to pass an order for 'deposit of rent but he has first determined the relationship between the parties such procedure and determination cannot be termed as without jurisdiction. It can only amount to violation of the order passed in certain proceeding. It is pertinent to note that while taking proceeding for deposit of rent the learned Controller was not debarred from determining the relationship between the parties. It is well‑settled, that where the tenant denies the relationship of landlord and tenant the Controller should first decide A this issue as a preliminary issue before passing order for deposit of rent. The Controller had the jurisdiction to pass both the orders and if he had chosen first to determine the disputed question of relationship the order cannot be termed as without jurisdiction. No other contention was raised by the learned counsel for the petitioner. The order passed by the Controller has been upheld by the learned District Judge in appeal. Thus, the question of facts regarding relationship and default have been concurrently found against the petitioner. The petitioner is challenging the validity of the impugned orders by invoking Constitutional jurisdiction but has failed to establish that the order was passed without jurisdiction or without legal authority. The petition is, therefore dismissed with costs. H . B . T . Petition dismissed.