P L D 1974 Lahore 446 (PLP)

(e) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)

Ss. 13(6) & 15-Ejectment of tenant cannot be ordered without in first instance passing an order under S. 13(6) directing tenant to deposit arrears of rent and future rent-Rent Controller dismissing application under S. 13 holding that no relationship of landlord and tenant existed-Appellate authority reversing finding and at same time ordering ejectment-Held : Appellate authority was right in reversing finding on issue of relationship but not justified in passing order of ejectment ; proper course was to remand case to Controller for decision on merits, after passing order under S. 13(6). Abdul Ghafoor v. Ahmad Kunhi P L D 1969 S C 424 ref. Ch. Muhammad 1qbal for Appellant. Ch. Muhammad Sadiq Bhatti for Respondents. Dates of hearing : 18th and 19th October 1973. The judgment will dispose of S. A. O. Nos. 107, 109 and 110 of 1970 which involve common questions of law and facts.

2. The relevant facts are that Muhammad Bashir and others, respon dents, filed petitions for ejectment, against the appellants. The Rent Controller, Kasur, dismissed the petitions on the 17th of July 1966 on the ground that relationship of landlord and tenant did not exist between the parties. On appeal, learned Additional District Judge remanded the cases on the 10th of June 1967 with the direction that the Settlement record should also be examined. Learned Rent Controller again dismissed the petitions on the 3rd of June 1969 holding that the relationship of landlord and tenant did not exist between the parties. The respondents preferred appeals against the orders which were accepted by Mr. Hassan Nawaz, Additional District Judge, Lahore, on the 7th of February 1970. He held that the appellants were tenants of the respondent. He ordered the appellants' ejectment on the ground that they had not paid the rent. These are the Second Appeals.

3. Learned counsel for the appellants contended that the question of jurisdiction of the trial Court has to be decided with reference to the initial assumption of jurisdiction by that Court, and that a mere enquiry whether or not it has jurisdiction in a particular case is not an exercise of jurisdiction over the case itself. It is simply an investigation as to whether the conditions precedent for taking cognizance are satisfied. In the circum stances, a Court is always empowered to examine whether or not it has jurisdiction to try the cause submitted to it. It is further contended that if it is held that the Court has no jurisdiction over the subject-matter of the litigation, it cannot proceed any further to order, and if it does so, the proceedings will be a nullity in the eyes of law. He, on these premises, argued that after it was held by the Rent Controller that the relationship of landlord and tenant did not exist between the parties, jurisdiction under section 13 of the Urban Rent Restriction Ordinance, 1959, could not be assumed and that being so the determination of this issue was not a decision under section 13 and, therefore, appeals against the same under section 15 before the District Judge were not competent. Thus, the precise point to be examined is whether an order dismissing a petition on the ground that relationship of landlord and tenant does not exist is appealable or not. The question can be resolved with reference to the provisions of section 15 of the Ordinance which provide that an appeal lies only against an order under section

13. The petitions for ejectment filed before the Rent Controller under section 13 of the Ordinance were based on the averments that relationship of landlord and tenant existed between the parties. When the respondents took objection that they were not tenants, the Rent Controller had to examine -this question. The decision that the relationship of landlord and tenant did not exist between the parties was given when the Rent Controller has seisin of the matter under section

13. The employment of the words and letters "under section 13" in section 15 was not in the restricted sense to cover only an order passed by a Rent Controller in a case where the relationship of landlord and tenant is admitted or proved. They are to be read in the context in which the same were used and have to be understood in full comprehension to mean any order passed in respect of an action which is initiated or purported to have been taken under section 13, or an order passed in the course of proceedings under section 13, or an order which is passed in the proceedings of which the Rent Controller could not take cognizance but for the provisions in section

13. Any other interpreta tion would lead to uncertainty and may frustrate the very intention of the Legislature that the disputes between the landlords and tenants should be decided expeditiously and the procedure adopted in resolving them should be simplified. If the contention of the learned counsel for the appellants that the words "order under section 13" in section 15 apply only to orders which are passed after it is held that relationship of landlord and tenant exists, is accepted it may present a nocuous situation. In the event of finding by the Rent Controller that such relationship does not exist and he dismisses the petition, the landlord or the owner may have to institute a suit in the ordinary civil Court for possession, and if in turn the civil Court .comes to the conclusion that the dispute was between the landlord and a tenant it may refuse to entertain the suit with the result that the suitors array find themselves in a dilemma. The intention of the law was that disputes between landlords and tenants should be decided under the Rent Restriction Ordinance and it also implied that if any dispute arises about this relationship it should be decided by the heirarchy of the Courts under the said Ordinance which provided for the initial decision by the Rent Controller, appeal by the District Judge and the second appeal by the High Court. The Rent Controller may hold that the relationship of landlord and tenant does not exist. The decision may be erroneous. To rectify such an error, appeal is provided. In this very case the District Judge has reversed the finding of the Rent Controller on the question and has held that the relationship of landlord and tenant existed between the parties. On this finding the Rent Controller has the jurisdiction to pass further order. Thus, there is no justification to restrict the application of section 15 providing for appeals only to the orders which are passed after the question of relationship of landlord and tenant is determined. The appeal will be com petent even if it is held that relationship of landlord and tenant does not exist between the parties and the petition is dismissed. The same view was taken by Aftab Hussain, J., in Abdul Ghafoor v. Mst. Sadiq Bdbi (S. A. O. No. 157 of 1967, decided on 2nd of May 1973).

4. It was next contended by the learned counsel that the learned District Judge was not justified in holding that the respondents were transferees of the property in dispute. Learned District Judge, after having considered all the evidence on the record, has come to this finding. This being a finding of fact does not call for any interference.

5. Learned counsel then argued that the question whether the property .had been transferred to Mst. Hussain Bibi or to the respondents was one which the Settlement Authorities alone were competent to determine and the Rent Controller or the Additional District Judge had no jurisdiction to decide it. The appellants did not raise this question before the Rent Controller. Since the question was one of jurisdiction I have examined it but find no force in it. The respondents were transferred the property and so was Hussain Bibi and Permanent Transfer Deeds were issued in their favour. The property was thus not in the compensation pool. The Settlement Authorities had no jurisdiction left under the Act to pass any order determining the extent of the property transferred to them. In All Muhammad v. M. A. Effandi (P L D 1965 Lab. 193), it was held: "It is thus clear that none of the parties challenges the correctness or validity of an order passed by the Settlement Authorities. The order is clothed with finality under section 22 of the Displaced Persons (Compensation and Rehabilitation) Act (Act XXVIII of 1958). In fact both the parties claim their respective rights based on the order passed by the Settlement Authorities, and do not in any way question the finality attached to them under the Act. No objection under the circum stances can be taken under section 22 of the Act to the jurisdiction of the civil Courts to hear and determine this suit". The same view was taken by 'Waheeduddin, J., in R. S. A. No. 179 of 1964, decided on the 2nd June 1966.

6. The Additional District Judge set aside the finding of the Rent Controller, and held that the relationship of landlord and tenant existed. It necessitated the remand of the case to the Rent Controller to pass the order under section 13(6) and to try the case on merits. But he instead passed the following Order:

"The aforementioned three respondents, namely, Muhammad Hussain, Khushi Muhammad and Muhammad Din will put the petitioners in. possession of the rooms in their possession within one month of the date of this order, failing which they will be ejected forcibly." There was no justification in law for him to have ordered the ejectment of the appellants. The petitions for ejectment could be decided by the Rent Controller, who was required to pass an order in the first instance under subsection (6) of section 13 directing the petitioners to pay the arrears of rent and the future rent and then to decide the case on merits. In Abdul Ghafoor v. Ahmad Kunhi (PLD1969SC424), it was observed by their Lordships of the Supreme Court that such an order could be passed only by the original Court. The order of the Additional District Judge being erroneous in this respect has to be set aside.

7. The appeals partly succeed. The result is that the order of the Additional District Judge so far as the same relate to the setting aside of the finding of the Rent Controller dismissing the petitions for ejectment on the ground that the relationship of landlord and tenant did not exist. between the parties is maintained. It is reversed to the extent it relates to the ejectment of the appellants and the cases are remanded to the Rent- Controller who shall proceed to decide the ejectment petitions on merits- There shall be no order as to costs. K. B. A. Appeal partly accepted