P L D 2007 Lahore 283 (PLP)

MIAN SAQIB NISAR, J.

The respondent filed an ejectment application, for the eviction of the appellants from the shop in dispute, situated in Paisa Akhbar Urdu Bazar, Lahore. In the written reply, the appellants denied the relationship of the tenancy and in a categorical and unequivocal terms have stated that the ejectment petitioner is not the owner of the shop rather the property in dispute was owned by predecessor-in-interest of the answering respondents and answering respondents are in occupation of the property as owners' Further in reply to paragraph No.3., of the petition on merit, the case of the appellant is that the shop in question was an evacuee property, which has been transferred by the Settlement Department in the name of his father, who was never inducted as a tenant in the property by the respondent. Be that as it may, the learned Rent Controller, vide order dated 22-9-2003 passed an order under section 13(6) of the Rent Restriction Ordinance, held "there is no documentary proof from respondent side to rebut the contention of the petitioner and mere denial of landlordship is not sufficient, until and unless it is supported with any cogent documents. Therefore, in order to proceed further order under section 13(6) is hereby passed." The appellants moved an application for recalling of the order dated 22-9-2003, which was dismissed vide order dated 28-2-2004 and the following issues were framed:-- (1) Whether the relationship of landlord and tenant exist between the parties. ?OPA (2) Whether the disputed premises are required by petitioner for his personal bona fide need? OPA (3) Whether the respondent is wilful defaulter in payment of rent? OPA (4) Relief. Thereafter, the respondent moved an application for striking off the appellants defence on the ground that the order dated 22-9-2003 passed under section 13(6), has not been complied with, which application was accepted and the learned Rent Control through the order dated 1-11-2004, struck off the defence of the appellants and passed an eviction order; this order was challenged by the appellants in appeal on the ground that since they have denied the relationship of tenancy, therefore the order under section 13(6) could not have been passed against them and cannot be made basis for the non-compliance of such an illegal order, having been passed without jurisdiction and lawful authority; this appeal has been dismissed by the learned Addl. District Judge, vide judgment dated 25-1-2005 on the reasoning that the order dated 22-9-2003, has not been challenged by the appellants and therefore, such order has attained the finality and thus it was held `In this way, it can rightly be said that the appellant is a wilful defaulter in the payment of rent and he has rightly been ejected by the learned Rent Controller vide order dated 1-11-2003.'

2. Learned counsel for the appellants contends that as the appellants have denied the relationship of tenancy therefore, the order under section 13(6) could not have been passed by the learned Rent Controller without first determining the issue of relationship/ownership of the property, for which it was necessary to have allowed the appellants to produce the evidence in order to show that the suit property has been transferred in favour of the appellants' father by the Settlement Department. It is mentioned in this behalf that the record of the Settlement has been duly relied upon and the appellants wanted to establish their transfer/ownership through the production of such record.

3. On the contrary, the learned counsel for the respondent states that the denial of the relationship by the appellants was contumacious and was not supported by any record, therefore, the Rent Controller had rightly discarded the same and passed the order under section 13(6).

4. I have heard learned counsel for the parties. The Order under section 13(6) could only be passed, where either the relationship of landlord and tenant is admitted or it is established from the record that the denial by the respondent is contumacious, illusionary frivolous, baseless and without substance. In this behalf, cogent reasons should be recorded by the Rent Controller, before discarding the denial and passim the order under section 13(6) of the Rent Restriction Ordinance. But once a tenant has denied such relationship and issue in this behalf is intended to be framed by the Controller, it is not permissible for him to pass an order under section 13(6), directing the tenant to deposit the rent, because in the case, where default in the payment of rent. is set out as a ground for the eviction, as in the present case, the respondent of the case, while denying the relationship takes a grave risk, that in case the tenancy is established, the matter shall not be further adjudicated, rather his tenancy shall be forfeited and straightaway an ejectment order shall be passed against him. As mentioned above, the ejectment application in the case, has been filed inter alia on the ground of default in the payment of monthly rent therefore, the Rent Controller after deciding the issue of tenancy could evict the tenant forthwith, if it is, proved that the relationship inter se the parties exists. Moreover in the case, where the tenancy is denied, the Rent Controller is not supposed to frame any other issue, such as on the ground of personal requirement or wilful default in the payment of the rent. To this extent, also the order framing issues Nos.2 and 3,is not proper and the same is also liable to be set aside, resultantly, by allowing this appeal, the impugned orders are set aside and the matter is remanded to the Rent Controller with the direction that the evidence of the parties be recorded on the issue of relationship and to decide the eviction application on the basis of that issue within three months from the dale of first appearance of the parties, who are directed to appear before the Rent Controller on 6-11-2006. S.M.B./A-202/L Case remanded.