1987 PLP 1788 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.‑‑ Leave to appeal was granted, in this case, against the judgment of the Baluchistan High Court, Quetta, dated 23rd September, 1984, in order to consider, whether the High Court was justified, in the facts of the case, in setting aside the order of the Rent Controller striking off the defence of the respondents/tenants and directing their ejectment, on the ground that the latter had raised a plea for want of jurisdiction and lack to relationship between the parties entitling the appellant to maintain eviction application.

2. The facts so far as relevant to the question under consideration in this appeal are that the appellant filed an application for eviction of the respondents from the premises in dispute on the ground of subletting, non‑payment of rent and bona fide personal requirement. On 18th April, 1983, the learned Rent Controller framed as many as 8 issues on the pleadings of the parties but the material issues for the present purpose are issues Nos.l and 2 which read as under:‑ "(1) Whether the application is not maintainable in view of P/O A of rejoinder? (2) Whether the premises in dispute was let out solely for the purpose of dairy business?" On the same day the learned Rent Controller also passed an order under section 13 (6) of the Baluchistan Rent Restriction Ordinance, directing the respondents to deposit arrears of rent as well as the future rent. On 17th December, 1983, the appellant moved the Rent Controller for striking off the defence of the respondents on account of their failure to deposit rent in terms of the order under section 13 (6). The learned Rent Controller accepted this application and struck off the defence of the respondents as well as passed orders of eviction against them vide order dated 12th March, 1984.

3. Being aggrieved the respondents filed an appeal in the High Court of Baluchistan, Quetta, which was allowed with the result that the order passed by the Rent Controller was set aside and the case was remanded to the Rent Controller for fresh decision in terms indicated by the High Court in the following part of the judgment:‑ "Since the order for deposit of the rent had been made by the Rent Controller without deciding the question of jurisdiction 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." Specific pleas have been raised by the appellants in their written statements. Issues have been framed on the pleadings of the parties. The Controller is vested with the jurisdiction under the provisions of Rent Restriction Ordinance in case where the relationship of landlord and tenant exists between the parties and the eviction is sought from the building or the rented land. .The Rent Controller had no authority to make an order for deposit of the rent under section 13 (6) or to proceed in the matter before resolving these points. The Controller has not decided the preliminary issues. I, therefore, set aside the orders made by the Controller under section 13 of the Urban Rent Restriction Ordinance. The Controller should first decide issues No.1 and 2 after taking evidence of both the parties."

4. Now the reasons that prevailed with the learned Judge in the High Court to set aside the order of the Rent Controller were that the aforesaid two issues framed on the pleadings of the parties specifically raised the question of the jurisdiction of the Controller, and therefore he was not competent to proceed to pass an order under section 13 (6) without first determining the preliminary question whether he had jurisdiction to entertain the ejectment application. Issue No.1 was framed on the pleas raised by respondent No.1 (defendant) in para A of the written statement which reads as follows:‑ "That the application for eviction of the respondent No.1 is not maintainable because about 25 years back the applicant's father had leased out a vacant plot to the replying respondent for raising construction and it was also agreed by the father of the applicant to give on rent the superstructure raised by the replying respondent on the said plot. The replying respondent raised construction thereof as the replying respondent is exclusive owner of the superstructure which is six rooms residential house in which the replying respondent is himself residing and is addition to 12 rooms and three barracks used as dairy. The father of the applicant had leased out this vacant plot for raising construction about 25 years before and all the existing construction had been raised since long in the lifetime of the father of applicant who never objected, and it was also well within the knowledge of the applicant." In other words the plea of the tenant was that ejectment proceedings under the Baluchistan Urban Rent Restriction Ordinance were not competent as premises in dispute was not "rented land" or building as defined by the said Ordinance. It is contended by the learned counsel for the appellant that in the legal notice dated 14th June, 1982, served by the appellant on respondent No. l it was categorically asserted that the tenancy related to dairy land, with further assertion that the same was rented out solely for the purpose of running a dairy. But in reply to the notice these facts were not denied. On the basis of these documents learned counsel strenuously urged that the preliminary objection raised by respondent No.1 was untenable and the ejectment proceedings were competent before the Rent Controller. We are, however, unable to agree with this contention and would 'not like to dilate further as, any decision on this question may prejudice the parties in case of decision on merits. It may, however, be mentioned that the reply of respondent No.1 does assert that the respondent No.1 is running a dairy as well as residing on the disputed premises in the construction raised by him. At any rate the first two issues mentioned hereinabove were not taken up and decided before passing of the tentative rent order by the Rent Controller. It is well‑settled proposition of law that when objection is taken as regards the jurisdiction of the Rent Controller by a tenant, he cannot take further steps in the proceedings except after determining the question whether he possessed jurisdiction in the proceedings before him. We are, therefore, unable to find fault with the view taken by the learned Single Judge in the High Court that the order passed under section 13 (6) was without jurisdiction and cannot, therefore, sustain the consequential order of eviction. We are further strengthened in our view by the concession made at the Bar that when the Rent Controller struck off the defence of respondent No.1, the aforesaid issues still remained to be decided. As on a plain reading the said issues raised the question of jurisdiction of the Rent Controller, we cannot but agree with the High Court that the order of eviction was passed illegally. For the foregoing reasons we find no substance in this appeal and accordingly dismiss the same with costs. S. Q. /M‑156/S Appeal dismissed.