P L D 2003 Supreme Court 231 (PLP)

Qazi Naseer‑ud‑Din (Appellant No.3 in person on Power of Attorney). Haji Maqsood Ahmad, Advocate Supreme Court for Respondent No.

1. Date of hearing: 29th October, 2002. TANVIR AHMED KHAN, J.‑‑This appeal with leave of the Court is directed against the judgment dated 3‑4‑1996 of the Peshawar High Court, Peshawar, whereby Writ Petition No.63 of 1995 filed by respondent No. 1 was accepted and the order dated 6‑12‑1994 of the learned Additional District Judge, Peshawar, and the consequent order dated 23‑1‑1995 of the learned Rent Controller, Peshawar, directing eviction of respondent No. 1 for not depositing the arrears of rent were set aside. The matter was sent back by the learned Division Bench to the Rent Controller, Peshawar, to proceed in the matter from the stage of his interim order dated 21‑7‑1994 whereby his earlier interim order dated 25‑5‑1994 qua direction to deposit arrears of rent was recalled. The facts briefly narrated for the disposal of this appeal are that the appellants filed a petition under section 13 of the Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance), on 29‑12‑1993 for the eviction of respondent No.1 from Shop No.2246(2212) Bazar Kalan, Peshawar City, on the ground of default in payment of rent. The same was resisted by respondent No.1 as he denied the relationship of landlord and tenant. Issues were framed and the learned Rent Controller, Peshawar, through his order dated 25‑5‑1994 directed respondent No.1 to deposit rent at the rate of Rs.150 per month from 1‑5‑1993 regularly in the Court which would be handed over to the real landlord whosoever he would be. The case was, accordingly, adjourned for further proceedings. However, through another order dated 21‑7‑1994, the learned Rent Controller withdrew his earlier order dated‑25‑5‑1994 whereby a direction was given for the deposit of rent holding that the earlier order was invalid as according to the respondent he had been paying rent to one Abdul Majid. The appellants challenged the above order dated 21‑7‑1994 of the Rent Controller and the learned Additional District Judge, Peshawar, through his order dated 6‑12‑1994 set aside the same and directed respondent No.1 to deposit arrears of rent amount to Rs.3,000 from May, 1993 ,to December, 1994, at the rate of Rs.150 per month. A further direction was made that respondent No. 1 would regularly deposit Rs.150 per month as rent before the 15th of each month. Subsequent thereto, the case was taken up by the learned Rent Controller, Peshawar, who through his order dated 23‑1‑1995 directed the eviction of respondent No. 1 for non‑deposit of rent. Respondent No. 1 filed Writ Petition No.63 of 1995 in the Peshawar High Court, Peshawar, against the order dated 6‑12‑1994 of the learned Additional District Judge, Peshawar, whereby a direction for the deposit of arrears of rent was given and the subsequent order dated 23‑1‑1995 whereby the learned Rent Controller, Peshawar, had struck off his defence for non compliance of the order of deposit of arrears of rent and ordered his eviction from the disputed shop. The appellants filed parawise comments and took preliminary objection to the very maintainability of the writ petition as statutory remedy of appeal was available to respondent No. 1 under the Ordinance against ‑the eviction order dated 23‑1‑1995 whereby respondent No. 1's defence was struck off. He also took objection to the fact that there was no application of respondent No. 1 to recall the earlier order of the Rent Controller passed by him on 25‑5‑1994 and the order dated 21‑7‑1994 had been passed at an oral request. A learned Division Bench of the Peshawar High Court through its judgment dated 3‑4‑1996, impugned herein, accepted the aforesaid writ petition setting aside both the above orders and sent back the case to the learned Rent Controller to proceed in the matter from the stage of order dated 21‑7‑1994 whereby he had recalled his order dated 25‑5‑1994 for the deposit of rent. Hence, this appeal with leave of the Court. We have considered the contentions advanced by the parties and have gone through the entire documents placed on record. We have noticed that the ejectment petition was filed by the appellants as far back as on 20‑12‑1993 under the Ordinance. It was their case that the disputed shop devolved upon them on the death of Mst.Rahat Begum, their predecessor‑in interest, who expired on 2‑6‑1993. Respondent No. 1, according to the averments of the petition, stopped payment of rent after the death of Mst.Rahat Begum, appellants' predecessor‑in‑interest. Respondent No.1 in his reply to the ejectment petition, though denied the relationship of landlord and tenant, admitted payment of rent to Mst.Rahat Begum, predecessor‑in -interest of the appellants. He took up the plea that the same was being paid to her under the direction of the real owner. The learned Rent Controller taking into consideration all the aspects of this case after framing of issues passed an order for deposit of arrears of rent on 25‑5‑1994 as respondent No. 1 had admitted earlier payment of rent to predecessor‑in‑interest of the appellants. It is also reflected from the record that simply on an oral request of respondent No. 1 the learned Rent Controller withdrew his earlier order dated 25‑5‑1994 as, according to him, the same was invalid as respondent No. 1 had denied the relationship of landlord and tenant. He, however, omitted to notice that respondent No. 1 had himself admitted payment of rent to the predecessor‑in‑interest of the appellants. This subsequent order of the Rent Controller withdrawing his earlier order could not have been passed by the learned Rent Controller simply on an oral request of respondent No.

1. Although a mention has been made of an application in this regard in the impugned judgment but the learned counsel for respondent No. 1 has failed to substantiate this aspect that an application was made in this regard for withdrawal of earlier order dated 25‑5‑1994. Admittedly, the Rent Controller recalled his earlier order in a haphazard manner without application of mind. The appellants took exception to the above order before the learned Additional District Judge, Peshawar, who vide his order dated 6‑12‑1994 set aside the same and remitted the case to the Rent Controller with a direction to respondent No. 1 to deposit arrears of rent. Since respondent No. 1 did not comply with the direction for deposit of arrears of rent, as such, the learned Rent Controller through his order dated 23‑1‑1995 struck off his defence and ordered his eviction from the disputed shop. It is not disputed that if a party denies the relationship of landlord and tenant, the Rent Controller has to resolve this question before passing any order under section 13(6) of the Ordinance for deposit of rent but in the case in hand respondent No. 1 (the tenant) had admitted in his written statement the payment of rent as stated in the preceding paragraphs to Mst.Rahat Begum, predecessor‑in‑interest of the appellants, though it was stated that the said payment was made at the asking of the real owner, Abdul Majid. The Rent Controller, in the circumstances taking all the aspects of the case into consideration, passed a just order on 25‑5‑1994 for the deposit of rent in Court with the rider that the same would be disbursed to the real owner. The said person, at the asking of whom respondent No. 1 was paying rent to the predecessor‑in‑interest of the appellants, never entered this litigation. In this view of the matter, subsequent order of the Rent Controller recalling his earlier order simply on an oral request cannot be given any credence. The Rent Controller after the remand of the case passed eviction order on 23‑1‑1995 for non‑compliance of deposit of arrears of rent. Instead of availing the statutory remedy of appeal provided under section 15 of the Ordinance, respondent No. 1 filed a writ petition in the Peshawar High Court. The learned Judges of the Division Bench, without dilating upon the maintainability of the writ petition and without considering the distinguishing features of the case, accepted the same. We are sorry to hold that a period of about ten years has gone by now and the appellants have not seen the result of their ejectment petition. Taking stock of all the aforesaid features of the case into consideration we accept the present appeal and set aside the judgment dated 3‑4‑1996 of the learned Division Bench of the Peshawar High Court, Peshawar. However, respondent No. 1 is allowed three months' time today to deliver peaceful possession of the disputed shop to the appellants. There will be no order as to costs. M.B.A./M‑715/S Appeal accepted.