P L D 1996 Peshawar 8 (PLP)

QAZI EHSANULLAH QURESHI. J.

Mst. Sherin Gul the respondent herein, sought ejectment of Mst. Razia Begum and Mst. Gulshan, the petitioners herein, from a house by filing an application under section 13 of the Urban Rent Restriction Ordinance, 1959 before the Rent Controller, Charsadda. The application was bested by the petitioners wherein they, inter alia, denied the very existence of relationship of landlord and tenants between the parties. The learned Rent Controller framed as many as 11 issues and erected the petitioners to deposit rent at the rate of Rs.400 per month tentatively vide order dated 19-2-1995. An appeal although was lodged before the Additional District Judge, Charsadda but the same was dismissed in limine being incompetent as against an interlocutory order vide order dated 3-4-1995. Hence the present constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 for declaring the impugned orders of respondents 1 and 2 as illegal, without jurisdiction and of no legal effect.

2. We have heard Mr. Muhammad Humayun Turangzai, Advocate on behalf of the petitioners and Mr. Shahab-ud-Din Burq, Advocate for the contesting respondent. A perusal of the record indicates that after the filing of the written statement the Rent Controller directed the petitioners to deposit tentative rent at the rate of Rs.400 p.m. before the 15th of each mouth and framed the issues simultaneously which order on the face of it, does not fulfill the legal requirements envisaged under section 13(6) of the Urban Rent Restriction Ordinance, 1959. Section 13(6) is reproduced below for reference:-- "13(6). In proceeding 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 to him, and also to deposit regularly till the final decision of the case, before the fifteenth 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 may 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, 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 is the case." Although it is not the issue before us, but apparently the rent deposit order and framing of issues on the same date and at the same time is illegal and without lawful authority. On the first date of hearing or as soon as possible after that date and before the issues are framed the Controller shall direct the tenant to deposit all rent due from him. So framing of issues at the same time without waiting for compliance of rent deposit order is against the spirit of mandatory provisions of law. The rationale behind this provision is that in case the rent deposit order passed by the Rent Controller is not complied with the Court has to strike off the defence under section 13(6) of the Ordinance ibid and pass an ejectment order forthwith. The relevant portion reads as under:-- "If a tenant makes default in 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."

3. Now coming to the controversy regarding relationship of landlord and tenant between the parties. In the case in hand the tenants-petitioners in their written statement at the very outset denied the relationship of landlord and tenant. In such like situation it was incumbent upon the Controller to first decide the issue in respect of existence or non-existence of relationship of landlord and tenant between the parties. But strangely enough the Controller without framing a preliminary issue directed the petitioners for deposit of the monthly rent. There appears no justification in law for the Controller to have ordered for the deposit of rent before assuming jurisdiction and deciding the issue with regard to the relationship of landlord and tenant between the parties in absence of evidence. Such proceedings before the Rent Controller were coram non judice, ultra vires and without lawful authority, support was sought from PLD 1991 Karachi 417 and PLD 1979 Quetta

39. When the relationship is denied a preliminary issue is to be framed and the evidence in support thereof pro and contra is invited and in case the Court reaches to the conclusion that there existed relationship of landlord and the parties then in such event the Controller can pass an ejectment order straightaway without proceeding further in the matter. This view finds support from the rule laid down in the judgment reported in PLD 1982 Lahore 332.

4. As a sequal to above, we would accept this petition and declare the impugned orders of respondents Nos. 1 and 2 as without jurisdiction and of no legal authority. We, however, remand the case to the Rent Controller (respondent No.1) with the direction to first record the evidence of the parties as they wish to adduce in respect of the issue of relationship of landlord and tenant and then pass such an order as he deems appropriate in the circumstances of the case. No order as to costs. A.A./1875/P??????????????????????????????????????????????????????????????????????????????????????? Petition accepted.