1988 PLP 575 (MLD)

Briefly the facts giving rise to the appeal are that the appellant was resident of Flat No. 101, 1st floor, Masood Mansion at SD‑6, Block `G' North Nazimabad, Karachi on a rent of Rs. 90 per month since the year 1969. In the month of February, on 4‑2‑1987 the respondent filed Rent Application No. 141/87 under section 15(ii)(vii) of Sind Rented Premises Ordinance, 1979 on the ground of default and personal use, claiming to be the owner of the said premises. The appellant filed written statement on 2‑4‑1987 and resisted the application and inter alia it was pleaded that there was no relationship of landlord and tenant between the parties as the respondents did not intimate/inform about their becoming the owner of the premises and had failed to intimate and give notice to the appellant as required under section 18 of the said Ordinance. The respondent also filed application under section 16(1) of the Sind Rented Premises Ordinance, 1979 with the prayer that appellant be directed to deposit arrears of rent amounting to Rs. 1,530 in the Court and deposit future monthly rent on or before 10th of each calendar month. The appellant filed his objections and as it seems the learned Rent Controller without framing preliminary issue as to the question of relationship passed a tentative rent order on 5‑5‑1987. On 22‑7‑1987 the respondents filed application under section 16(2) of the Ordinance, 1979 and the appellant filed his objections and the learned Rent Controller after holding summary enquiry passed the order of ejectment and directed the appellant to vacate and hand over the possession of tenement in question to the respondents within sixty days which order is impugned in this appeal. In support of their appeal M/s Meraj Ahmed and Jamil Ahmed, Advocates had urged. (a) That since the jurisdiction of the Controller was challenged it was necessary for him to frame the issue. (b) That the Rent Controller was not competent to pass a tentative Rent order without first framing preliminary issue and without providing opportunity to the parties to lead evidence on the above question as such the tentative Rent order suffered from legal infirmity and was illegal hence its non‑compliance was of no consequence. On the other hand Mr. Ali Muhammad Memon, learned counsel for the respondent. has contended that although no preliminary issue was framed by the learned Rent Controller but the parties were allowed and had filed affidavits in evidence and other documents in support of their respective contentions which was sufficient compliance. The basic question in the present case is as to whether under the Ordinance the learned Rent Controller can decide the question of relationship without recording any evidence. M/s M. Meraj Ahmed and Jamil Ahmed referred to the following cases in support of their contention that without framing a preliminary issue and without recording evidence it was not open to the Controller to have decided the question of relationship summarily while passing the tentative rent order. (i) Shabbir Hussain v. Mst. Shamim Khatoon 1985 M L D 124, wherein it was held that the framing of issue may not be necessary when the Controller has the jurisdiction in the matter but in case where the jurisdiction of Controller has been challenged he has first to determine his jurisdiction then, alone he has jurisdiction in the matter to proceed further under the provisions of Ordinance. (ii) Mst. Bismillah Begum v. Fazal Muhammad 1987 C L C 1113, wherein it was held that in case of change of ownership non‑service of notice under section 18 was necessary requirement. (iii) Harz Muhammad Ikram v. Mushtaq P L D 1978 Lah. 996 in which case the learned Single Judge of Lahore High Court held that even in an ex parte proceeding the Rent Controller is bound to satisfy himself as to the question of relationship before passing ejectment order. (iv) Ghulam Hussain v. Abdur Rehman and 2 others P L D 1982 Lah. 519 it has been held that the order for deposit of rent passed by the Rent Controller without deciding question of jurisdiction was without lawful authority and in that case Constitution petition filed was allowed. I have heard the learned counsel for the parties who have taken me through the documents filed and I am of considered view that in absence of framing of preliminary issue and without affording opportunity to the parties to A lead evidence the order of tentative rent could not be passed. Reference may be made to the case of Hassan Mohiuddin v. Muhammad Hanif reported in 1985 C L C 1606 wherein my learned brother Mr. Ajmal Mian, J. has held in para. 4 as under:‑‑ "It may be observed that there is no provision in the Ordinance requiring a Rent Controller to frame a preliminary issue on the question of relationship and, therefore, it can be urged that failure to frame preliminary issue on the above question will not be fatal to the passing of a tentative rent order. In this regard it may be pertinent to point out that there was no provision even in the late West Pakistan Urban Rent Restriction Ordinance, 1959 requiring the framing of preliminary issue but the constant view of the Superior Courts was that the question of relationship was a jurisdictional fact, upon which the jurisdiction of the Rent Controller would depend, and therefore, the same should be decided as a preliminary issue. I am inclined to hold that the above view holds good even under the Ordinance. A preliminary issue on the question of relationship cannot be decided in summary manner without providing parties an opportunity to lead evidence. It may be observed that whenever a summary enquiry is permissible under the Ordinance it has been expressly provided so. In this regard reference may be made to sections 14 and 16 of the Ordinance. In the former section an application for ejectment is to be disposed of after holding a summary enquiry in contrast to a regular trial of an application for ejectment under section 15 of the Ordinance. Similarly a tentative rent order is to be passed under section 16 of the Ordinance after holding a summary enquiry. But the question of relationship cannot be decided without providing opportunity to the parties to lead evidence." In view of the above discussion I am therefore, of the considered view that in the instant case the tentative rent order could not be passed by the learned Controller without first deciding the question of relationship in the manner referred hereinabove. More particularly when this question was raised right from initial stage and even in his rent. application filed by him the ownership was not notified/disclosed by the respondent. I have deliberately refrained from commenting upon the merits for the reason that the same may be relevant for consideration on adoption of the proper procedure after the compliance of legal requirements by the Rent Controller. Consequently the impugned order dated 27‑7‑1987 passed by the IVth Senior Civil Judge and Rent Controller (West) Karachi cannot be sustained, and therefore, I set aside the impugned order and remand the case to the Rent Controller with the direction to frame a preliminary issue on the question of relationship between the landlord and the tenant and to provide opportunity to the parties to lead evidence and decide the same within four months from the receipt of the copy of this order. If question of relationship is affirmatively decided then to pass a fresh tentative rent order. With these observations F.R.A. No. 799/87 is disposed of. H.B.T./M‑554/K Case remanded.