1986 PLP 912 (CLC)

This petition is directed against the judgment, dated 28‑1‑1985 whereby the learned District Judge, Karachi, dismissed the appeal filed by the petitioner and confirmed the order, dated 3‑3‑1983. The facts which give rise to this petition are that pursuant to the promulgation of M . L. R . 118 of 1972 Marie Colaco Secondary and Primary School situated on Plot No.84, N.I. Lines, Sadar, Karachi was nationalised and taken over by petitioner through the Director of School Education, Karachi, with effect from 1‑10‑1972. By virtue of the provisions of the said M . L. R . all the properties attached to schools and colleges which were nationalised vested in the Government. On or about 5‑3‑1978 the respondent No.3 filed Rent Case No.14 of 1978 in the Court of the Rent Controller, Karachi Cantonment, under section17 of the Cantonment Rent Restriction Act (Act XI of 1963), on the ground of default in payment of rent by the petitioner. The case of the respondent No.3, as set out was that he was the landlord of the said premises and prior to nationalisation of schools he had let out the said premises to the said school under an agreement in writing on a monthly rent of Rs.2,

500. He stated that the said school used to pay the agreed rent to him until such time as it was taken over by the petitioner with effect from 1‑10‑1972. The prayer was that since the petitioner had failed to pay any rent right from the day the premises were taken over it was liable to be evicted. On 25‑7‑1978 the petitioner filed written‑statement. The petitioner denied contents of para. 1 of the application and stated therein as follows: "According to M . L. R . 118 paras. 5 to 10, the School/ College building which were constructed on plot for land acquired by previous owners/ management for Educational purposes and or School/College building constructed entirely or in part .with Government in Aid or even personal plots vest in the Government. However, to ascertain legal title of ownership and assessment of rent the Department required a copy of agreement between the defunct‑management and the owner of the building housing Mari Claco School. Mr. A.M. Qureshi who claims to be the owner of the school building could not produce the same stating that the record in question had been taken over by the Martial Law Authorities during Ayub regime." The petitioner also denied the contents of paras. 2 and 3 of the application and stated that as the respondent No. 3 failed to furnish agreement between the defunct‑management and the landlord as mentioned under para.

1. The para. 4 of the application partly admitted. It was further stated as follows:‑ "The Government is in possession of the school in question and if the title of ownership is proved Government becomes the tenant of the applicant in accordance with the rules. But so far rate of rent is concerned it is stated that the same had been fixed on the basis of assessment from Excise and Taxation Department which was made at the time of Nationalisation. Previous rent stated to have been paid by the defunct‑management was more than the said assessment, the lower rate of rent was paid according to Government policy which has been clarified against para. 4 below." It appears that on 27‑2‑1979, the respondent No.2 passed order under section 17 (8) of the Act, directing the petitioner to deposit the sum of Rs.99,104.88 being the arrears of rent calculated at the rate of Rs.2,070.25 per month on or before 30th April, 1979 and to continue to deposit future monthly rent before the 5th of each succeeding month. It is pertinent to reproduce the relevant part of the order which reads as under:‑ "After giving my careful and judicious consideration to the matter I have come to the conclusion that the opponent is liable to pay the rent @ Rs.2,070 per month and not at Rs.2,500 as claimed by the applicant or at Rs.740 as contended by the opponent. I, therefore, hold that rate of rent is Rs.2,070 per month." The evidence of the respondent No.3 was recorded on 30‑4‑1980. The evidence of the petitioner was also recorded and the case reached the stage of arguments. The petitioner filed application under sections 3 and 17 (8) of the Cantonments Rent Restriction Act, 1963 on 20‑7‑1981. It is pertinent to reproduce the relevant portion of the order which reads as under:‑ "Furthermore, I do not find any force in the application, dated 20‑7‑1981 filed by the Advocate of the opponent as the relation between the landlord and tenant has already been established by my order, dated 27‑2‑1979. I, therefore, reject all the two applications mentioned above and filed by the parties." The petitioner also filed application under section 21, General Clauses Act, 1897. On 22‑1‑1983 the respondent No.3 filed an application under section 17 (9) of the Act on the ground that the petitioner failed to deposit rent within the meaning of section 17 (9) and their defence is liable to be struck off. The petitioner filed objection on 17‑2‑1983 and stating therein that the application is misconceived and not maintainable in law, as no relationship of landlord and tenant exists between the parties. The respondent No. 2 after taking into consideration the arguments advanced by the learned counsel for the parties allowed the application vide his order, dated 3‑3‑1983. The petitioner above named, being aggrieved by order, dated 3‑3‑1983 of the respondent No.2, filed Rent Appeal No.8 of 1983 in the Court of respondent No.l. The learned respondent No.l, by his judgment,, dated 28‑1‑1985, dismissed the said appeal and maintained the order, dated 3‑3‑1983 and held as follows:‑ "In view of the case‑law discussed and the facts and circumstances of the case, 1 find no fault with the order, dated 27‑2‑1979 'about deposit of rent and with the order, dated 3‑3‑1983 about stricking off defence of the appellant. I, therefore, maintain both the orders and dismiss this appeal with costs." The petitioner being aggrieved by the judgment, dated 28‑1‑1985 and orders, dated 27‑2‑1979 and 3‑3‑1983 has preferred this petition, on the grounds mentioned in the memo of petition. Mr. Khalid Anwar the learned counsel for the petitioner has submitted that by virtue of the provisions of the M.L.R. 118 of 1972 all the properties attached to the schools and colleges which were nationalised vested in the Government and inasmuch as the petitioner had become the owner of the said premises and there is no relationship of landlord and tenant between the petitioner and respondent No.3. He has contended that when the petitioner is denying that he is the tenant of the respondent No.3, the respondent No.2 should have held an enquiry calling upon the parties to adduce evidence as the provisions of section 17 (a) of the Act does not apply to a case where tenancy is disputed. Mr. Khalid Anwar the learned counsel for the petitioner has cited following decisions in support of his contention:‑ (i) P L D 1961 Lah. 601 (ii) P L D 1963 Lah. 396. (iii) P L D 1966 Lah. 934 (iv) P L D 1968 Kar. 869 (v) 1982 C L C 2005 and (vi) P L D 1981 S C 94 On the other hand Mr. J.H. Rehmatoolah, the learned counsel for the respondent No.3 has contended that provisions of section 17(8) of the Act applies not only to a case where tenancy is admitted but also to a case where tenancy is disputed and the language of subsection (8) is comprehensive enough to clothe the Controller to hold summary enquiry for determining the question whether the relationship of landlord and tenant exists between the parties for passing an order directing the tenant to deposit arrears of rent and to continue to deposit future rent. Mr. J. H . Rehmatoola has contended that the legislature clearly intended to give protection to the tenant, provided he deposits the arrears of rent with the office of the Controller and continues to deposit till the disputes are settled and, therefore, subsection (8) applies not only to a case where the tenancy is admitted but also to a case where the tenancy disputed and a summary enquiry can be made about the relationship before applying subsection (8). The learned counsel has submitted that if a Rent Controller needs not consider an objection about jurisdiction which appears to be frivolous or baseless, he is also not required to consider an objection which is not pressed by the party concerned. If the tenant raises an objection about jurisdiction, which is not frivolous or sham objection, the Rent Controller should decide this objection first, provided his attention is drawn to it by the tenant, and if the tenant wishes to produce evidence, he should be allowed to do so. But if the tenant dyes not make any effort to have his objection about jurisdiction decided as a preliminary legal objection and does not care to produce evidence at that stage, the Rent Controller is under no obligation whatever to frame an issue merely because the petitioner raised an objection in the written statement about the relationship of landlord and tenant, the more so as many objections in written statement are frequently dropped in suits in regular Courts. He has further submitted that such objection has to be pressed before the Rent Controller and not at appeal stage or in the Consti tutional Petition. He has cited decisions of superior Courts in support of his submission. They are:‑ (i) P L D 1977 Lah. 662 (ii) P L D 1977 Lah. 916 (iii) 1976 S C M R 229 (iv) P L D 1974 Quetta 1 (v) 1980 C L C 1957 (vi) P L D 1978Azad J&K 73 (vii) 1983 C L C 325 (viii) 1982 C L C 1640 (ix) 1983 S C M R 1064 (x) 1978 S C M R 335, and (xi) P L D 1985 S C 131 The Preamble shows that the object of the Act is for the control of rent of certain class of buildings within the limits of the cantonment and for the eviction of tenants there from. Therefore, the Act mainly deals with the rights and obligations of the owners (landlords) and the tenants. Therefore, it is only in cases where the relationship of landlord and tenant exists between the parties with regard to a building, the Act has any application. Provision is made in section 17 for eviction of tenant from building under section 17(1). It provided that no tenant shall be evicted from the building in his possession or occupation except in accordance with the provisions of this section. Under section 17 (1) it is provided that a landlord who seeks to evict his tenant shall apply to the Controller. The various grounds on which the eviction of a tenant can be sought are enumerated in section 17 (2). The grounds mentioned are, (i) default in payment of rent, (ii) transferring or subletting by the tenant, (iii) using the building for a purpose other than for which it was leased, (iv) committing such acts as are liable to materially impaired the value or utility, (v) acts and conducts causing. nuisance, (vi) causing to occupy the building for continuous period of four months without reasonable cause, and (vii) demolishing the building for constructing the new building. From what is mentioned in section 17 (2), it is clear that it is only when the relationship of landlord and tenant exists between the parties, an eviction application can be maintainable on any of the grounds mentioned therein. Unless that relationship exists, either. admitted or proved, the Controller can have no jurisdiction, to pass orders of eviction. Therefore, so far as the Controller is concerned the relationship of landlord and tenant between the parties is a jurisdictional fact. The tenant in an eviction application may deny that there is relationship of landlord and tenant between the applicant and him either on the ground that the applicant is not the owner of the building and he is not F tenant or on _the ground that though the applicant is the owner of the building he denies his own status as a tenant and claims himself to be either as a mere trespasser or a licensee in which case also the Controller will have no jurisdiction to deal with the matter and the remedy of the landlord would be only to file a suit against the tenant for possession in a regular civil Court. Now the provisions contained in subsections (8) and (9) of section 17 may be examined.. It is convenient to extract the entire subsections which read as under:‑ "(8) On the first hearing of proceeding under this section or as soon thereafter as may be but before the issues are framed, the Controller shall direct the tenant to deposit in his office before a specified date all the rent due from him, and also to deposit regularly till the final decision of the case, before the 5th day of each month, the monthly rent which subsequently becomes due, and if there be any dispute as to the amount of rent due, the Controller shall determine such amount approximately. (9) If the tenant fails to deposit the amount of rent before the specified date or, as the case may be, before the 5th day of the month, his application, if he is a petitioner, shall be dismissed, or his defence, if he is a respondent, shall be struck off and the landlord shall be put in possession of the building without any further proceedings." A reading of subsections (8) and (9) as extracted above would show that an embargo is put on a tenant against whom an application for eviction has been made to contest that application unless he deposits rent with the office of the Controller all arrears of rent due in respect of building upto the date of deposit and continues 'to deposit further rent and if he fails to deposit the amount of rent before the specified date or before the 5th of the month, his application, if he is an applicant, shall be dismissed, or his defence, if he is a respondent, shall be struck off, and the landlord shall be put in possession of the building without any further proceedings. On a careful reading of subsections (8) and (9) and on consideration of the entire scheme of the statute, it appears to me that it .is fallacious to regard the proceedings under subsection (8) a altogether distinct and unrelated to each other. The scheme of the enactment leaves one is no doubt that the proceeding under subsection (8) before the Controller under that subsection is no more than an interlocutory application in the main proceeding. Where a party opposing the application for eviction denies the relationship of landlord and tenant, the Controller is bound to adjudicate on the plea as a collateral jurisdictional fact. I will deal with the decisions cited by Mr. Khalid Anwar learned counsel for the petitioner:‑ (i) In the case of Muhammad Ismail v. Israr Ahmed P L D 1961 Lah. 601 and relied upon by Mr. Khalid Anwar, the appellant had filed application for eviction on the ground of wilful default in payment of rent claiming himself to be the landlord and describing the respondent as tenant. The respondent contended that the relationship of landlord and tenant did not exist between him and the applicant and, therefore,. he was not liable to pay rent. The Rent Controller ordered the respondent to deposit the arrears of rent due by a certain date. The respondent went up in appeal before the District Judge, who directed that the Rent Controller should first determine whether or not the respondent was a tenant of the applicant before passing an order for the deposit of arrears of rent. The learned counsel for the petitioner contended that subsection (6) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, the order directing the tenant to deposit rent due from him has to be passed by the Rent Controller before the framing of the issues, and if the tenant makes default in the compliance of such an order, his defence shall be struck off and the landlord put into possession of the property without any further proceeding in the case. The main stay of the arguments raised in appeal before him (Mr. Anwarul Haq, J.) was a decision of Mr. A.K. Changez in the case of Dr. Ilyas Dolosh v. Muhammad Iqbal PLD 1960 Lah. 1112 as he did not agree with the ratio decided in that case the matter was put before a Division Bench for an authoritative pronouncement on the interpretation of section 13(6) of the Ordinance. Their Lordships held that the term "used in subsection (6) is tenant" and not "respondent". In an action for eviction if the respondent denies that he is tenant under the petitioner, the Controller must put the controversy in an issue and determine whether the plea raised in defence has merit. If the answer be that the respondent is a tenant under the petitioner, section 13(6) of the Ordinance will immediately come into operation and the Controller may pass such orders he deems fit in the circumstances of the case. The learned Judges further held that the issue whether the relationship of landlord and tenant exists between the parties is one of jurisdiction and should be determined first, in case the answer be in the negative, ' the Controller loses seisin over the lis and must stay his hands forthwith. ii) The next case relied upon by learned counsel for the petitioner is Akhtar Ali Parvez v . Altafur Rehman P L D 1963 Lah. 390 (F . B .) . In that case one of the defence taken by the tenant before the Rent Controller was that the notice given by the petitioner is invalid. His objection by raising this defence was to question the jurisdiction of the Rent Controller. The Rent Controller proceeded, in spite of this defence. On 21‑11‑1961 that the tenant should deposit arrears as well as current rent. This order was not complied with by the respondent is consequence of which his defence was struck off. He went in appeal to the District Judge, who dismissed it. The tenant filed second appeal before the High Court of West Pakistan, Lahore Bench. The case came up before Mr. Justice Qadeeruddin, J., as the learned Judge was finding some difficulty, as such he asked that the case be referred to a larger Bench. A Full Bench was constituted. Mr. Manzoor Qadir, C.J. held: "It seems to me that when an objection is taken to the jurisdiction of the Tribunal, that objection must be treated as a preliminary objection and must be resolved before taking any further action." The decision in the case Muhammad Ismail v. Israr Ahmed PLD 1961 Lah. 601 was approved by the Full Bench. (iii) The third case relied upon by Mr. Khalid Anwar, learned counsel for the petitioner, in support of his contentions, is Hafiz Ali Muhammad v. Jamal Din and others P L D 1966 Lah.

934. In this case respondent filed an application for fixation of fair rent of the shop which he had presented in an auction from the Deputy Settlement Commissioner. The appellant filed written statement in which preliminary objections were taken. One of the objections was that the Rent Controller had no power to hear that application. Mr. A.S. Faruqi, J. held that if it is alleged that there is no relationship of landlord and tenant or that certain facts exist which exclude the jurisdiction of the Controller to make an order under that subsection and such an order is not frivolous or without any plausible basis, it would be within the power of the Controller, if not an obligation on him, to try this question first and defer the making of an order for deposit. (iv) Next cited is Habibullah v. Bawn Vasdevgir Chelo Shambhugir P L D 1968 Kar.

869. In that case Mr. Noorul Arfin, J. held that according to the view taken by this Court in several decisions, it was incumbent on the Controller to first determine these points before assuming jurisdiction under the West Pakistan Urban Rent cestriction Ordinance, 1959 and before directing the tenant to deposit the arrears and rents under section 13(6) of the Ordinance. Since the Controller failed to determine these points, his order for deposit of arrears an rents is invalid and consequently the lower appellate Tribunal was not competent to struck off the appellant's defence for failure to comply with this order. (v) Another case cited on behalf of the petitioner is Rabbani and others v. Syed Abdul Wali and others reported in 1982 C L C 2005. In this case the respondent filed an application for eviction of appellant from shop. The appellant filed written statement. The Controller directed him to deposit arrears of rent. On this failure to comply the order, the Controller struck off his defence. The appellant filed first rent appeal before Baluchistan High Court. Mr. Muhammad Jaffar Nasir, J. held "In the impugned order of the Controller there is no suggestion of approximate determination of such amount. The Controller has misdirected himself by ignoring the plea of the appellant taken in the written statement. He has not applied his mind and failed to carry out the statutory provision of section 13(6) of the Ordinance. Any order which is defective and not in accordance with the provisions of law under which it is made non‑compliance of such order could not result in the penal consequences resulting from such non‑compliance. Defence of the appellants could not be struck off in these circumstances." New I will deal with the authorities cited by Mr. J.H. Rahimtoola, learned counsel for the respondent. (i) In the case of Safdar Ali v. Muhammad Ali P L D 1974 Quetta 1 the respondent purchased the shop in dispute from his cousin. His Advocate served a notice on the appellant informing him about the purchase of the shop by the respondent and calling upon him to pay rent to the respondent. The appellant sent a reply. The appellant however did not pay rent. The respondent filed eviction application before the Rent Controller on the ground of default and had illegally demolished a .wall in the demised premises. The appellant contested the application and also disputed the respondent's title. In view of this objection the Controller directed the respondent to file a replication. The respondent filed replication with certified copy of sale‑deed. In view of this evidence the Controller passed an order of deposit of entative rent. The appellant committed breach of this order. He filed ~n application for striking off the appellant's defence. This application vas taken up with the main case, that is, after the parties examined Nitnesses. The Controller allowed this application and also the main application on the ground of personal use. The appellant went in appeal Before the District Court, Quetta. He, however, dropped all his objections about the respondent's title and the Rent Controller's jurisdiction and pressed the appeal on the ground that the respondent had not proved his requirement. But he also challenged the Rent Controller's order striking off his defence. The learned District Judge agreed with the appreciation of evidence. It appears that he resiled from the position taken by him in his memo. of appeal and challenged the respondent's title in his arguments before the District Judge. The learned District Judge rejected this submission because he held that the respondents title was proved by evidence. He, therefore, dismissed the appeal but without examining the propriety of the Rent Controller's order striking off the appellant's defence. The appellant filed second appeal in the High Court of Sind and Baluchistan, Quetta Bench, Quetta. The learned counsel contended before Mr. Dorab Patel, J. that the appellant had not admitted respondent's title. As no issue with regard to this objection had been framed, Mr. Zahoorul Haq's main submission was that as this objection had been pleaded, the Rent Controller was under an obligation to frame an issue about it, as he did not do so, the proceedings before him were without jurisdiction. The learned Judge while rejecting the submission observed:‑ "If a Rent Controller need not consider an objection about jurisdiction which appears to be frivolous or baseless, then, in my humble opinion, he is also not required to consider an objection which is not pressed by the party concerned. Therefore, this judgment does not help Mr. Zahoorul Haq's submission. It is also distinguishable on the facts because the appellant had not slept over his rights, unlike the appellant in this appeal before me." Again at page 8 observed:‑ "As the Civil Procedure is not applicable to proceedings before the Rent Controller, the Rent Controller's discretion is not fettered by Order XIV. But as that Order is not applicable, the Rent Controller's discretion with regard to the‑framing of issues cannot be fettered in the absence of some provisions in this respect in the said Ordinance." Further observed:‑ "If the tenant raises an objection about jurisdiction, which is not a frivolous or sham objection, as in the present case, the Rent Controller should decide this objection first, provided hi: attention is drawn to it by the tenant., and if the tenant wishes to produce evidence he should be allowed to do so. But if, it the present case, the tenant does not make any effort to haw his objection about jurisdiction decided as a preliminary lega objection and does not care to produce evidence at that stage as has happened in the instant case, then, in my humble opinion the Rent Controller is under no obligation whatever to frame issue merely because an objection to his jurisdiction has been pleaded by the tenant in his written statement, the more so as many objections in written statements are frequently dropped even in suits in the regular Courts." Further observed:‑ "I have observed earlier that I deprecate strongly the practice of appellants to contend for the first time at the appellate stage that, for some defect or other, the orders passed by the Rent Controller are without jurisdiction. As the Rent Controller is a Tribunal of limited jurisdiction, an appellant should be entitled to challenge a Rent Controller's order on the ground that the impugned order is without jurisdiction. And as I have explained, this objection has to be pressed before the Rent Controller. But, if appellate Courts allow it to be entertained when it has not been pressed in the trial Court, then in my humble opinion, the result would be to import the technicalities of the Civil Procedure into proceedings before the Rent Controller, despite the clear warning of the Supreme Court in Khadim Mohyuddin's case." (ii) Raja Mohammad Afzal Khan etc. v. Zareena Akram P L D 1977 Lah.

662. In this case, the respondent filed an ejectment application against Raja Mohammad Akbar Khan, respondent No.3 alleging herself to be the landlady and him to be a tenant. The father of the said respondent was the original tenant and who had died before the institution of the ejectment proceedings. She realised that all the heirs of Raja Mohammed Akram Khan should have been impleaded. Accordingly she amended her petition and impleaded alongwith Raja Mohammad Akbar Khan respondent No.3 his two brothers, his mother and one sister Raja Muhammad Afzal and the mother were the appellants in that case. But before amendment of the ejectment application the respondent No. 3 had already filed his written statement in which he admitted that the house in question had been leased out to him by the husband of Mst. Zareena and that there was no dispute with regard to the rate of rent. But subsequent to the amendment of the ejectment application respondent No.3 changed his position and denied the tenancy altogether. The Rent Controller came to the conclusion on the basis of the earlier admission of Raja Mohammad Akbar Khan that all the heirs of Raja Mohammad Akbar Khan deceased were the tenants of Mst. Zareena Akram. The Rent Controller directed all the respondents to deposit arrears of rent and also to continue to deposit future rent. The appellants challenged the said order before the appellate authority and so did respondent No.3 by a separate appeal. The appellate authority dismissed appeals. The appellants referred Second Appeal before High Court of Lahore. Mr. K.M.A. Samdani, J. held:‑ "It is true that unless the learned Rent Controller decides that the relationship of landlord and tenant exists between the parties he cannot assume the jurisdiction and, therefore, cannot direct the alleged tenants to deposit rent. But in order to decide that question he does not necessarily have to frame an issue and try it as formally as a civil Court is expected to do." "In view of this observation I am satisfied that the learned Rent Controller was justified in deciding the issue of tenancy between the parties before him on the basis of whatever material was available to him on the record." (iii) In the case of Mohammed Sharif v. Sh. Muhammed Din P L D 1977 I,ah.

515. The respondent filed eviction application before the Controller on the ground of default. In the written‑statement filed by the appellant, a bare denial was made of the relationship of landlord and the tenant. In the reply submitted by the respondent; the denial of relationship of landlord and tenant and preliminary objection in this behalf was repelled as incorrect and frivolous. The contention raised was whether the Rent Controller, after having clearly understood and found such a position, was still bound to frame an issue Mr. Muhammed Afzal Zullah, J. (now judge of the Supreme Court) held as follows‑.‑ "If the Rent Controller hears the tenant who has also opportunity of relying on anything that might be in his possession and/or showing the same to the Rent Controller, it would not be necessary for the latter in all cases to decide the question of relationship of landlord and tenant as an independent proceedings/ suit. I hasten to qualify this observation by a note of caution to Rent Controllers that there might be cases wherein substantial questions of fact mixed or otherwise with law might be bona fide raised and which might require recording of evidence. Such cases might be rare because in highly controversial and complicated cases of title, the Rent Controller might not like to go into the details. In other cases, the question of relationship of landlord and tenant might be easy to resolve on the pleadings of the parties, documents filed therewith and/or better statement/s record immediately after the pleadings. There might be still some cases, as the present one, wherein the objection on the face might look frivolous and mala fide and it might also be possible to visualise that the same might have been raised by the tenant to prolong the proceedings so as to gain undue time. In the latter cases, the Rent Controller would be empowered, after of course noticing the objection, to overrule the same by an order which should ordinarily be speaking indicating application of mind. In the other cases falling in the middle category, one short adjournment or at the most two might be enough to conclude the controversy without formulating the same in the form of issue and recording of formal evidence. These adjournments might be necessitated to send for the parties so that better statements could be recorded. In the other category, wherein as noted earlier rare cases would fall, somewhat detailed examination of evidence with or without framing the issue might be necessary. In this case, as discussed earlier, the plea taken was, to say the least, not bona fide. It was not necessary to hold any detailed inquiry nor was it essential for the learned Rent Controller to frame an issue. His order, dated 9‑12‑1975 shows that he was conscious of the objection and further that he having applied mind to the same and having considered the admitted position of the appellant having continuously paid the rent to the respondent, repelled /ignored it as frivolous his procedure does not contravene any law nor any principle." (iv) Case of Javed lqbal v. Rana Muzaffar Khan 1976 S C M R

229. The Hon'ble Supreme Court while reiterating the view taken in Ghulam Mohammed Khan Lundkhor v . Safdar. Ali P L 1) 1967 S C 530 were pleased to hold as follows:‑ "It cannot be accepted as a precedent laying down as a proposition of law that opportunity must always be allowed to the tenant to adduce evidence before his defence is ordered to be struck off. Indeed strictly speaking the provisions of the Evidence Act and the Civil Procedure Code are not in terms applicable to the proceedings before the Rent Controller under the Ordinance." Apart from the above decisions cited by the learned counsel for the parties, there are few other decisions which are as follows:‑ (i) Mst. Khurshid v. Haji Abdul Hadi P L D 1979 Quetta

39. The facts of the case are that respondents filed eviction application against Sardar Khan and one Mohammed Rashid on the ground of default and he had also sublet one portion to respondent No.2. They did not resist the application. In the result both were declared ex parte. However, before the matter could finally be disposed of, the appellant filed an application praying that she may be joined as opponent in the ejectment proceedings. For the reasons that she was in exclusive possession and occupation as tenant. Her application was allowed and she was arrayed as opponent. The Rent Controller without framing any issue in respect of relationship of landlord and tenant between the parties, directed her to deposit arrears of rent as well as monthly rent regularly. The appellant challenged the order before the District Judge, Quetta which was allowed and the order was set aside and directed the Controller to frame an issue in respect of relationship of landlord and tenant between the parties before passing of an order under section 13(6) of the Ordinance. The respondent filed amended application asserting that opponent No.2, wife of the opponent No.l, who has been joined as party on her assertion. On the strength of this amended application, the Rent Controller, without framing issue directed her to deposit arrears of rent as well as monthly rents. On her failure to deposit rent, her defence was struck off. She went in appeal before the District Judge which was dismissed. She filed second appeal before the Baluchistan High Court at Quetta. Mr. Mir Hazar Khan Khoso, J. held as follows:‑ "In strict sense, it could be said that a Rent Controller shall have jurisdiction to entertain or decide an application under the provisions of this Ordinance, only in a case where there is relationship of a landlord and tenant between the parties. In case where there is a dispute in respect of the relationship of landlord and tenant between the parties, irrespective of the fact whether the objection is raised by a tenant or by the landlord, it is incumbent upon the Rent Controller to frame an issue as to whether there exists relationship of landlord and tenant between the parties or not. In absence of such adjudication on the issue the Rent Controller does not have jurisdiction to proceed further into the matter. As such the both orders of the Rent Controller suffer for want of jurisdiction." (ii) In the case of Ghulam Hussain v. Abdul Rehman and 2 others PLD 1982 Lah. 519, the contention before the Lahore High Court was that the order for deposit of rent has got to be made in every case regardless of the fact that the jurisdiction of Rent Controller is challenged. Mr. IWuhammed Ilyas, J. held as follows:‑ "To my mind, there is no difference between an objection to the jurisdiction of the Rent Controller on the ground of absence of relationship of landlord and tenant between the parties and the objection to his jurisdiction on the plea that the property involved in the ejectment proceedings is not within the compass of the said Ordinance. In taking this view, I am fortified by the aforementioned cases of Muhammed Ismail, Akhtar Ali and Muhammed Zaman in which it was indicated that when the tenancy is denied, the jurisdiction of the Rent Controller is challenged. In this view of the matter notwithstanding the petitioner's omission to plead absence of tenancy, it was incumbent upon the learned Rent Controller to adjudicate upon the plea that he had no jurisdiction to her ejectment proceedings launched by the respondent." Further observed:‑ "Since the order for deposit of rent had been made by the learned Rent Controller without deciding the question of juris diction against the petitioner, by recording evidence or otherwise, his order in this behalf was without lawful authority. Resultantly, the order of eviction passed against the petitioner, due to his making default in the compliance of order for deposit of rent, deserves to be quashed because if the foundation gives way, the superstructure cannot stand. Similar view was taken in the cases of Yousuf Ali and Abdul Qayyum relied upon by learned counsel for the petitioner." (iii) In the case of Abdul Khaliq Qureshi v. Saeed Hasan Shah and 5 others 1979 C L C 118 a Special Bench was constituted for consideration whether the Rent Controller in a case where the relationship of landlord and tenant is denied by the respondent can pass an order of his eviction straightaway on ground of default after deciding the above point in favour of the landlord. The learned Judges held as follows:‑ "

16. It is established law that if a question is raised before the Rent Controller on behalf of the respondents against existence of relationship of landlord and tenant, it is incumbent upon the Rent Controller to decide that question before proceeding to decide other issues since the Rent Controller's jurisdiction to entertain a petition under the West Pakistan Urban Rent Restriction Ordinance depends upon an adjudication of this question. It was held by a Full Bench in Akhtar Ali v. Altafur Rehman approving Muhammed Ismail v. Israr Ahmed and Karam Bibi v. Mir Mohammed Hassan that 'a distinction exists between an issue as to the very existence of the authority to adjudicate, and those other issues which arise as between the parties and which are to be determined by the authority that has the power to resolve them. An issue concerning the very existence of the power to decide, is not an issue between the parties, though the existence of that power may be asserted by one party and denied by the other. It is in reality, an issue between the Court itself and the party over whom the Court is asked to exercise power. The issues as to the right or liabilities of the parties, on the other hand, affect only the parties and arise only as between them. They leave the Court unaffected. If, on whatever ground it may be, one of the parties to a proceeding under section 13 claims that those proceedings cannot validly be sustained or proceeded with under section 13, it will be incumbent upon the Rent Controller to decide that issue before he can exercise any of the powers mentioned in that section." A survey of the above decisions clearly shows that before passing of a tentative rent order the Controller has to determine the relationship of landlord and tenant exists between the parties. Section 17 (8) of C the Act is almost similar to section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959. In the first place the Controller has to be satisfied that there exists a relationship of landlord and tenant between the parties. The decisions cited by Mr. Rahmatoola the learned counsel for the respondent are not applicable to the facts of this case. In the case of Safdar the tenant denied landlord's title. The landlord filed replication with certified copy of sale‑deed. Thereafter the Controller passed tentative rent order. In the case of Raja Muhammed Afzal Khan, Raja Akbar Khan the respondent No.3 filed written statement and admitted the relationship of landlord and tenant but after filing of amended eviction application, he filed amended written statement in which he resiled from earlier position and took the plea that there exists no relationship of landlord and tenant between the parties. The Controller passed the tentative rent order on the basis of earlier written statement. The facts in the cases of Muhammed Shafi are also distinguishable. The facts in the case of Javaid lqbal are also distinguishable from the facts of this case as in that case relationship of landlord and tenant was not denied. It is clear, therefore, that whether the plea of denial of relation ship of landlord and tenant was not denied. It is clear, therefore, that whether the plea of denial of relationship of landlord and tenant was raised, it was the duty of the Controller to decide the relationship of landlord and tenant before passing order under section 17 (8) of the Act. The mere passing of the order for depositing arrears of rent is not sufficient to lead to the inference that the relationship was determined by the Controller. There must be something in the order itself to show that the Controller was conscious of the fact that there existed relationship of landlord and tenant between the parties. There is ample authority for the view that a Tribunal is competent; rather should on objection taken to its jurisdiction before proceeding with the case determine whether or not it has jurisdiction. As was remarked by the Privy Council in Nausserwanjee Pestonjee v. Meer Myrooden Khan (1854‑66) 6 M.I.A. 134 at 155, wherever jurisdiction is given to a Court by an Act of Parliament and such jurisdiction is only given upon certain specified terms contained in that Act it is universal principle that these terms must be complied with in order to create and raise' the jurisdiction for if they be not complied with, the jurisdiction does not arise. In the case of Abdul Sattar and another v. Mst. Hamida Bibi A I R 1950 Lah. 229 the learned Judges of the Full Bench held "therefore, the Court functioning under the Land Acquisition Act being a Tribunal of Special jurisdiction; it is its duty to see that the reference under that Act is made to it by an authority competent to make the reference and that the reference relates to a matter which can be referred to it under that Act". The dictum (reproduced below from Queen v. Commissioner for Special Purposes of the Income‑tax (1888) 21 Q.B.D. 313 has been cited with approval by the Hon'ble Supreme Court in the case of Karamat Ali and another v. Muhammed Younus Haji and others Y L D 1963 S C 191:‑ "When an inferior Court or Tribunal or body, which has to exercise the power of deceidng facts, is first established by Act of Parliament, the Legislature has to consider what powers it will give to that Tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such Tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The Legislature may entrust the Tribunal or body with a jurisdiction which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more. When the Legislature are establishing such a Tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be done. In the second of the two cases 1 have mentioned it is an erroneous application of the formula to say that the Tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the Legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction." It must be remembered that the Legislature has constituted a Tribunal which is to exercise the power of deciding, for the purpose of the proceeding before it, whether the relationship of landlord and tenant subsists. Lord Esher M.R. indicated in the above case the dichotomy that is inherent in a situation like the one in the instant case arising by the constitution of Special Tribunal by a Statute: where E a Tribunal is given power to do certain things and decide some facts, the Legislature may in effect say that, if a certain state of facts exists and is shown to such Tribunal before it proceeds to do certain other things, it shall have the jurisdiction but not otherwise. If the Tribuna exercises the jurisdiction without the existence of the necessary facts it will be held that it has acted without jurisdiction. By placing reliance on the language used in subsection (8), it was argued that the subsection is applicable only to cases where the relationship of landlord and tenant is not denied and the respondent in an eviction application ‑is admittedly a tenant. In support of this argument, the decisions of Lahore High Court P L 1) 1961 Lah. 601 already referred to was relied upon. In the decision of the Lahore High Court, the consideration was of section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, which is similar to the present subsection (8) of the Act. Mr. Anwarul Haq, J. took the view that subsection (6) of section 13 of the Ordinance again and again uses the term "Tenant" while describing the person who is under an obligation to deposit rent due from him. The Ordinance is intended to regulate relationship between the landlords and their tenants and the subsection is clearly meant to enforce liability for the payment of rent against a person who is a tenant of. the property in question. Mr. Yaqoob Ali, J., agreed with the view of Mr. Anwarul Haq, J. The above view was also approved by the Full Bench in the case of Akhtar Ali Parvez v . Altafur Rehman P L D 1963 Lah. 390 (F.B.). Subsection (8) commencesm with the words "on the first hearing of proceedings under this section or as soon thereafter as may be but before the issues are framed, the Controller shall direct the tenant to deposit in his office." Stress was made on the term "tenant" used in the words of the subsection. I am of the view that the disability is imposed by subsection (8) is only on the tenant and not any person and in a proceeding for eviction where the question whether the respondent is a tenant or not is itself in issue, it is difficult to see how subsection (8) can come into operation. If it were not so instead of the expression "tenant", the expression "person" would have been used by the Legislature in subsection (8). The Rent Controller will not be justified in presuming that when the Act has used the word "tenant" it meant only persons. The rule as to construction of the statutes is well known and has been clearly laid down Craies oh Statute law (6th Ed page 66) relying on Tasmania v. Commonwealth (1904) Comm L.R. 329 (Ars) has stated the rule as follows: "The Cardinal rule for the construction of Acts o Parliament according to the intention expressed in the Acts themselves." The Controller/ Court has to determine the intention as expressed by the words used. If the words of statutes are themselves precise and unambiguous then no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention of the Law‑giver. H flaking into account the objects of the Act there would be no difficulty in giving the plain meaning to the word "tenant" as being not confined to persons for it is seen that Act is to restrict in public interest eviction of tenants. In the circumstances, the Controller cannot help giving the plain and unambiguous meaning to the section. Mr. Rehmatullah the learned counsel has contended that subsection is applicable to a case where the relationship of landlord and tenant is not admitted and order as envisaged under subsection (8) can be passed after determination of relationship by summarily trial. In my opinion, the two questions, viz. whether subsection (8) can have no application at all to cases where the relationship of landlord and tenant is not an admitted fact and no orders as envisaged under subsection (8) can be passed in such cases and whether the relationship of landlord tenant which is a jurisdictional fact can be summarily tried and determined for the purpose of subsection (8) are different. It is one thing to say that subsection (8) has no application at all to cases where the relation ship of landlord and tenant is denied and it is a different thing to say that relationship through a jurisdictional fact can be summarily tried L once for the purpose of subsection (8) and a second time finally for the disposal of the eviction application. As regards the second point with regard to summary determination of the question, viz., whether the relationship of landlord and tenant exists between the parties or not, I am not inclined to hold that there can be summary trial if the fact of relationship of landlord and tenant is in dispute. Similar provision is made with regard to any dispute as to the amount of rent due. That fact being a jurisdictional fact, without the existence of which no valid orders could be passed under the Act. it should be determined not by a summary enquiry but by a regular enquiry. I do not think that there can be any determination of that question summarily for the purpose of subsection (8) and a second time for the purpose of. In this connection one other aspect of the matter need be considered. As provided under subsection (9) of section 17 of that if the tenant fails to deposit the rent as per orders passed under Act, subsection (8), the Controller shall stop all further proceedings and make an order directing to put the landlord in possession of the building. expression "stop further proceedings" means termination of the The expre and putting the. landlord in possession of the building. If proceedings is so, in cases where s actually no relationship of landlord and that but on a summary enquiry if that relationship is to be found, tenant, would arise. In such cases the effect would be to bring difficulties about the eviction of the respondent in an eviction application even is no relationship of landlord and tenant. 'The existence or when there of the relationship would become certain when a full enquiry otherwise and not when it is summarily enquired. Therefore, if summarily is made enquiry of that is permitted to be made for the purpose of subsection in some cases there is a possibility of causing prejudice and hardship (8) to the respondents. I do not think that the Legislature would have intended such a contingency in making the provision as ‑contained in subsection (9) of section 17 of the Act. For all these reasons, I have no hesitation in coming to the conclusion that even for the purpose of subsection (8) when there is dispute between the parties with regard to the relationship of landlord and tenant that dispute must be determined by making a regular enquiry and not by making a summary one and the finding in such an enquiry would be a finding in the eviction application itself. For the purpose of passing orders under subsection (8) of the Act, when the relationship of landlord and tenant is denied, the Controller must determine the question finally by making a regular enquiry and not provisionally by q making a summarily enquiry before assuming jurisdiction in the matte and pass orders and such a determination will be the decision in the main application. In this connection one other aspect of the matter need be considered. As provided under subsection (9) of section 17 of that J Act, if the tenant fails to deposit the rent as per orders passed under subsection (8), the Controller shall stop all further proceedings and make an order directing to put the landlord in possession of the building. The expression "stop further proceedings" means termination of the proceedings and putting the landlord in possession of the building. If that is so, in cases where is actually no relationship of landlord and tenant, but on a summary enquiry if that relationship is to be found, difficulties would arise. In such cases the effect would be to bring about the eviction of the respondent in an eviction application even when there is no relationship of landlord and tenant. The existence or otherwise of the relationship would become certain when a full enquiry is made and not when it is summarily enquired. Therefore, if summarily enquiry of that is permitted to be made for the purpose of subsection (8) in some cases there is a possibility of causing prejudice and hardship to the respondents. I do not think that the Legislature would have intended such a contingency in making the provision as‑contained in subsection (9) of section 17 of the Act. For all these reasons, I have no hesitation in coming to the conclusion that even for the purpose of subsection (8) when there is dispute between the parties with regard to the relationship of landlord and tenant that dispute must be determined by making a regular enquiry and not by making a summary one and the finding in such an enquiry would be a finding in the eviction application itself. For the purpose of passing orders under subsection (8) of the Act, when the relationship of landlord and tenant is denied, the Controller must determine the question finally by making a regular enquiry and not provisionally by making a summarily enquiry before assuming jurisdiction in the matte and pass orders and such a determination will be the decision in the main application. The learned Rent Controller was not justified in not consider in the contention of the petitioner regarding the dispute as to the existence of relationship of landlord and tenant before passing an order under section 17(8). Before passing an order under section 17 (8) the Controller has to determine whether there is any such relationship, particularly in a case where relationship has been denied. In my opinion, the learned Rent Controller acted illegally and with material irregularity in the exercise of his jurisdiction in not considering the contention of petitioner and deciding the dispute before striking out the defence of the petitioner against delivery of possession. Since the order of deposit had been made by the respondent No.2 without deciding the question of relationship of landlord and tenant by recording evidence, the order, dated 27‑2‑1979 was without lawful authority. Resultantly the order of eviction passed against the petitioner, due to his making default in the compliance of order for deposit of rent, Deserves to be quashed because if the foundation gives way, the superstructure cannot stand. Similar view was taken in the case of Yousuf Ali v. Muhammad Aslam Zia PLD 1958 S C

104. In the case of Mansab Ali v. Amir P L D 1971 S C 12 the Hon'ble Sunreme Court laid down the following dictum:‑ "It is an elementary 'principle that if a mandatory conaition for the exercise of jurisdiction by a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction . Any order passed in continuation of those proceeding in Appeal or revidion equally suffer from ollegality and are without jurisdiction . In view of what has gone above, I accept this Constitutional Petition, set aside the Judgment and Order of eviction of the petitioner as also order, dated 27‑2‑1979 passed by the respondent No.2 for deposit of rent. The respondent No.2 is directed to first of all decide the issue as to the relationship of Landlord and tenant between the respondent No.3 and the petitioner and thereafter to dispose of the eviction application on metits in accordance with law and also to pass deposit order under subsection (8). There will be no order as to costs. A . A . Petition allowed