P L D 1962 (W (PLP)

2. The facts leading up to this appeal may be shortly stated. On 28-11-61, the present respondents, namely, Muhammad Hassan and two others, all sons of Ch. Rehmat All, filed an application under section 13 of the said Ordinance for obtaining an order of eviction of Mst. Karam Bibi, the appellant before me, from the house bearing No. 4-37/6, situated on Pinney Road, Quetta, on the ground that a provisional transfer order, dated 26-2-60 had been granted in their favour by the Deputy Settle ment and Rehabilitation Commissioner, Quetta, in respect of the said house ; that the respondent, Mst. Karam Bibi, was in occupation of the house and also in consequence of the Provisional Transfer Order became their tenant from 26-2-60 ; that a notice as required by law bad been duly served upon Mst. Karam Bibi in March 1960, and the period granted by the Statute had expired; that Mst. Karam Bibi had filed an appeal in the Court of the Additional Settlement Commissioner, Quetta, who dismissed the same on 23-6-61, and confirmed the order of the Deputy Settlement Commissioner ; that the respondent had tendered rent up to the end of July 1961, and after that she had not tendered any rent to the applicant, thus making herself liable for ejectment from the said premises ; and that at the rate of Rs. 45 per month according to the latest Municipal Assessment, the rent due up to 25-11-61 came up to Rs. 180.

3. Mst. Karam Bibi filed a written statement in which she took a preliminary objection that the petitioners were not entitled to make the application for her eviction because the relationship of landlord and tenant did not exist between them. With regard to the P. T. O. of the petitioners, she stated that she had filed an appeal. With regard to the notice, she stated that the same had been replied to, and it was stated in the reply that she herself had been granted a P. T. O. In respect of the same house, and that she had applied to the Settlement Authorities for the cancellation of the P. T. O. of the petitioners. She admitted to have deposited Rs. 765 and stated that she would have no objection to the payment of further rent, but that must wait till her appeal against the P. T. O. granted to the petitioners was decided. The matter came up before the Civil Judge and Controller, Quetta, on 14-12-61, and on that day he passed an order directing Mst. Karam Bibi, the respondent before him, to deposit a sum of Rs. 225 which also included the rent for December 1961 by the 5th of February 1962, and to deposit future rent from month to month on the 5th of each month. He then fixed the case for 6-2-62. On that day it was found that Mst. Karam Bibi had not deposited the rent as directed by the Controller by his order, dated 14-12-61, and he, therefore, made an order directing her to give vacant possession of the premises in question to the petitioners within a month. Mst. Karam Bibi was not present on that hearing.

4. Mst. Karam Bibi then took the matter to the District Judge by an appeal under section 15 of the Ordinance. The learned District Judge, while dismissing this appeal, observed that it was not disputed before the Controller that the house In question was transferred under the P. T. O. to the petitioners by virtue of subsection (1) of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act of 1958. He further observed that no doubt Mst. Karam Bibi had stated fn her written statement that she had preferred an appeal against the transfer of the house in question in favour of the applicant/respondent, but she failed to produce an order which could show that her appeal was accepted, and the P. T. O. issued in favour of the applicant/respondent was cancelled. He further noted the fact that upon receipt of notice, Mst. Karam Bibi had deposited Rs. 765 on 7-8-61, and that in her written statement she had said that she had no objection for the pay ment of rent, but she should be given time for it until the decision of her appeal. Upon these premises he affirmed the finding of the Controller that the relationship of landlord and tenant had been made out, and that her preliminary objection 1n the written statement had no substance. He attempted to distinguish a Bench decision of the Court reported in Muhammad Sharif v. Ghulam Gilani (P L D 1961 Lah. 609), which was cited before him on behalf of Mst. Karam Bibl, and observed that it was not necessary for the Rent Controller to frame an issue upon the question of relationship between the parties in the circumstances of the present case. He followed a decision of a Single Judge of this Court reported in Shamas-ud-Din v. Abdul Rahman (P L D 1961 B J 88), and observed that a mere denial by the tenant of relationship was not enough to oust the jurisdiction of the Rent Controller. Upon these findings, he dismissed the appeal. Mst. Karam Bibi has come up in second appeal.

5. The short question which arises for consideration in this appeal is whether the Rent Controller was right in summarily rejecting the preliminary objection raised on behalf of Mst. Karam Bibi, and by directing her to deposit rent which if she failed, her defence would be liable to be struck off, and the Controller would have to issue an order of her eviction. It may be con venient to reproduce subsection (6) of section 13 of the said Ordinance: " (6) In proceedings under this section on the first date of hearing or as soon as possible after that date and before issues are framed, the Controller shall direct the tenant to deposit 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 due from him. If there is any dispute about the amount of rent due or the rate of rent, the Controller shall determine such amount approximately and direct that the same be deposited by the tenant before a date to be fixed for the purpose. If the tenant makes default in the compliance of such an order, then if he is the petitioner, his application shall be dismissed summarily and if he is the respondent, his defence shall be struck off and the landlord put into possession of the property without taking any further proceedings in the case."

6. The direction contemplated by this subsection with regard to the deposit of rent is to be given to the tenant. This presupposes that in case where the application is by a person who claims to be a landlord there must in existence be a relationship of landlord and tenant between him and the person against whom the petition is made. This tenancy may either be contractual or created by operation of law. The question that then arise is, that in case where the opponent denies the existence of tenancy, whether the Controller is entitled to make an order for deposit without deciding that objection. The answer to this question is plain enough, because once the existence of tenancy is denied, that amounts to a challenge to the jurisdiction of the Controller. His jurisdiction is attracted only in case of a landlord and tenant. The Controller is not a Court of general jurisdiction, and if the facts which would give him jurisdiction are not established, he would cease to have the jurisdiction to make an order as contemplated by subsection (6) of section 13 of the Ordinance. It is true that a mere denial of tenancy, howsoever frivolous, would not oust the jurisdiction of the Controller, but when there is such a denial, the Controller must determine that controversy before he makes an order for the deposit of rent. It was argued by Mr. Han6, the learned counsel for the respondent before me, that that inquiry should be made after the deposit has been made, and when the case is fixed for further hearing. I cannot agree, because once the order for deposit is made, and the so-called tenant makes a default in the compliance of that order, then if he is the respondent, the Rent Controller is required by the subsection to strike off his defence and put the landlord in possession of the property. This provision is mandatory, and the Controller his no choice in the matter, once there has been a default in the compliance of the order made by him with regard to deposit of rent. The controversy which is to be investigated at a subsequent hearing and in respect of which issues have to be framed, relates to the question of quantum of rent or the amount of arrears, and other similar matters, and not with regard to the status of the parties before the Rent Controller. In this respect I am in respectful agreement with the decision of the Division Bench which has been referred to by me above. Before the learned Single Judge who decided the case which is referred to in P L D 1961 B. 1. 88 cited above, this D. B.I decisions was not cited, and I am with great respect unable to agree that the dispute relating to the existence of tenancy may be deferred until after the deposit is made. Now in the present case, the learned Controller has in his order, dated 14-12-61, whereby he directed the deposit of rent, sought to determine the objection relating to the question of tenancy, and this has been upheld by the learned District Judge in appeal. I will now proceed to examine whether that finding is correct.

7. Admittedly Mst. Karam Bibi had been in occupation of these premises long before a P. T. O. was granted in favour of the respondents. It was admitted at the hearing that the P. T. O. in favour of respondents was dated 26-2-60 and the P. T. O. in favour of Karam Bibi was granted on 10-12-61. It was also admitted that this P. T. O. of Karam BIN was cancelled on 23-1-61, and her appeal was dismissed by the Additional Settlement Commissioner on 23-6-61, and so when the present respondents served Mst. Karam Bibi with a notice as required by the Displaced Persons Act, 1958, she deposited the root on 7-8-61. This was much before the application under section 13 was made by the present respondents in the Court of the Controller. From the certified copy of the appli cation for the deposit of rent, it is plain that this deposit was made under protest, and was not to be paid to the present appellants until her claim to the house bad been finally decided by the Settlement Authorities. It was for this reason that the deposit was made in Court instead of payment direct to the present appellants. It is, therefore, plain that the appeal referred to by Mst. Karam Bibl in her written statement before the Controller is an appeal against the order of the Additional Settle ment Commissioner, dated 23-6-61.

8. In this case the basis of the claim of the present respondents before the Controller was the Provisional Transfer Order in respect of the property in their favour. By virtue of section 30 of the Displaced Persons Compensation and Rehabili tation Act, the occupant is deemed to be a tenant. The words are the occupant is "deemed to be a tenant of the transferee on the terms and conditions as to payment of rent or otherwise on which he held it immediately before transfer." That being the basis of the respondent's claim, it 9s plain that if the order of Provisional Transfer in their favour is set aside in appeal or revision, the whole basis of their claim would disappear, and they would have no locus standi in the Court of the Controller. The learned Controller was, therefore, in error in summarily rejecting the preliminary objection of the present appellant. He was also in error in observing that she had not disputed her liability to pay rent, and had actually deposited Rs. 765 in Court, and that from this it was clear that she admitted the present respondents as the owner of the house. The learned District Judge also followed the same reasoning in dismissing Karam Bibi's appeal. From the facts stated above, it is plain that the deposit of Rs. 765 was made by Mst. Karam Bibi even before the application under section 13 had been made by the present respondents. When she filed her written statement before the Controller in answer to the claim of the present respondents under section 13 of the Ordinance, she made it clear that she was herself claiming this house, and that she had actually got it, and though her P. T. O. had been cancelled she had gone in appeal, and that the order for the deposit of rent must not be made until her appeal was decided. The previous deposit of rent by her was clearly under protest and subject to the final decision of her right in respect of the house, by the Settlement Authorities. The order of the learned Controller as well as that of the learned District Judge appears to be passed under misapprehension, and cannot be sustained.

9. Mr. Hanfi, the learned counsel for the respondents, pointed out that if an application, under section 13 of the Ordinance, of a person holding a valid P. T. O. is held over merely upon an objection by the occupant that he was follow ing some remedy howsoever ineffective before the Settlement Authorities, and the Controller was to hold up the proceedings, this would frequently lead to hardship and would encourage recalcitrant occupants. This apprehension is not well founded because if such an objection is taken before the Controller, it is open to him to examine the bona fides of such an objection. For instance, the Controller could properly order the occupant who raises such an objection to obtain a stay order from the Settlement Authorities within a reasonable time, and if such a stay order is not produced within the time granted or within the extended time, the Controller would be well within his right to assume that the remedy which the occupant alleged to have pursued was illusory. Upon this basis be could hold that the objection was not bona fide. I cannot however uphold an order whereby an objection of such a nature is summarily dismissed without a proper inquiry as to its bona fide nature.

10. For the reasons given above, I allow this appeal, and set aside the order passed by the learned Controller and the learned District Judge. The parties shall now appear before the Controller upon notice being given to them, and the Con troller shall proceed to deal with the matter as if he had not passed the order dated 14-12-1961.

11. In the circumstances of the case, however, I leave the parties to bear their own costs of this appeal as well as the appeal in the Court of the District Judge. A. H. Appeal allowed.