P L D 1961 (W (PLP)

MUHAMMAD YAQUB ALI, J.‑The facts giving rise to this reference may be briefly stated thus.

2. Muhammad Ismail appellant brought an action under section 13 of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) (hereinafter referred to as the Ordinance) in the Court of Rent Controller, Lahore, to evict Israr Ahmad respondent from a shop situated in Lahore on account of default in payment of monthly rent at Rs.

125. In defence, the respondent denied that he was a tenant under the petitioner and further pleaded that the shop in question belonged to the Lahore Improvement Trust which had cancelled its allotment in favour of the appellant and allotted the same to him. Before taking cognizance of the pleas raised in the written statement the learned Rent Controller, acting under section 13 (6) of the Ordinance, directed the respondent to deposit the provisional amount of Rs. 875 on account of arrears of rent before the 15th of June 1959, and thereafter to deposit Rs. 125 by the 5th day of every month. As failure to comply with this direction would have resulted in striking off the respon dent's defence, he brought the order in appeal before the District Judge, Lahore, who disagreeing with the Controller, directed that the plea whether the respondent was a tenant under the petitioner should be inquired into first and that action under section 1; (6) may be taken if the issue was determined in favour of the petitioner.

3. Dissatisfied with the order of the District Judge Muhammad Ismail preferred a second appeal which at first carne before my learned brother Anwar‑ul‑Haq, J. sitting in Single Beaah. The mainstay of the argument raised in support of the appeal before him was a decision of this Court in Dr. Ilyas Dobash v. Muhammad Iqbal (P L D 1960 Lah. 1112), and as he did not agree with the ratio decidendi in that case he asked the Chief Justice to nominate a larger Bench to dispose of the appeal for an authoritative pronouncement on the interpretation of section 13 (6) of the Ordinance.

4. The matter has thus come before us and we have heard the learned counsel for the‑parties at some length and closely examined the whole scheme of the Ordinance to properly construe the terms of section 13 (6) on which alone the determination of this appeal turns in final analysis. In Dr. Ilyas Dobash v. Muhammad Iqbal the respondent, whose eviction' was sought under section 13 of the Ordinance; pleaded that the relationship of landlord and tenant did not exist between the parties, that as the property in question was evacuee property, section l (3) of the Ordinance exempted it from its application and that inasmuch as it was denied that the respondent was a tenant under the petitioner, the Rent Controller had no jurisdiction to order his eviction. As in the present case before taking cognizance of these pleas, the Rent Controller directed the respondent to deposit a provi sionally determined sum of Rs. 2,000 on account of arrears of rent which he failed to comply with and in consequence of it his defence was struck off under section 13 (6) of the Ordinance. The matter eventually came before this Court and our learned brother A. R. Changez J. In affirming the order of the Rent Controller made the following observations :‑ "It will be seen that in view of the provisions of this sub section,, the Controller is bound to give a direction to the tenant to deposit all the rent ‑due from him and also to deposit regularly till the final decision of the case, before the 5th day of each month, the monthly rent due froth him. This direction is to be given on the first date of hearing or as soon as possible after that date, but before the framing of the issues. It is therefore, clear that the Controller cannot decide the plea raised in defence before directing the tenant to deposit the rent due from him. It is a condition precedent that the tenant should deposit the rent due from him, and it is only when this condition is complied with that the Controller can determine the questions raised in defence. The object of this piece of legislation is to ensure speedy disposal of such cases. The money which is deposited by the tenant is not paid to the landlord until the points raised by the tenant are decided. The tenant has, therefore, nothing to lose, if he deposits the arrears. In case he succeeds in his defence, the rent so deposited is liable to be refunded to him. As the appellant had not deposited the arrears by the 10th of November 1959, as directed by the Controller, he was bound to strike off the defence and put the landlord into possession, of the property without taking any further proceedings in the case: He had no option in the matter. It is true that subsection (3) of section 1 of the Ordinance says that nothing contained in this Ordinance shall be deemed to affect any evacuee property as defined in the Pakistan (Administration of Evacuee Property) Act, 1957, but surely this dew not mean that as soon as a plea is raised that the property is evacuee property, the Controller is not to take further proceedings which, under the law, he is bound to take. It being one of the pleas raised in defence, the Controller could not have decided this issue before complying with the provisions of subsection (6) of section 13 of the Ordinance. In fact, he could not have framed an issue on the point, until his order in respect of the deposit of the arrears had been complied with."

5. As against the reasoning of A. R. Changez, J. my learned brother Anwar‑ul‑Haq, J. on consideration of the provisions of section 13 (6) and repeated use of word "tenant" in it came to a contrary conclusion which runs thus: "Now subsection (6) of section 13 of the Ordinance again and again uses the term `tenant', while describing the person who is under an obligation to deposit the rent due from him. The first part of the section says that `on the first date of hearing or as soon as possible after that date and before issues are framed, the Controller shall defect the tenant to deposit all the rent due from him'. The section then proceeds to say that if there be 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 be deposited by the tenant before a date to be fixed for the purpose'. The final part of the section is to the effect : `If the tenant makes default in the 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 . . . . ." "The Ordinance is intended to regulate relations between landlords and their tenants, and the subsection in question is clearly meant to enforce liability for the payment of rent against a person who is a tenant of the property in question; but if that person not be the tenant can it still be said that he is under an obligation to comply with the requirements laid down in this subsection ? If the person is the applicant and describes himself as a tenant, it may reasonably be said that he falls within the category of persons who would be under an obliga tion to deposit the arrears of rent before any further proceedings can be taken in the case. But if the application before the Rent Controller be by another person describing himself as the landlord of the property, and the respondent denies the factum of tanancy, and such denial does not appear to be frivolous or baseless on the face of it, then it is a question for consideration as to whether subsection (6) of section 13 still makes it obligatory for the Rent Controller to insist that the rent be deposited before the plea of the respondent denying the tenancy can be considered or made into an issue. In my humble view, the existence of a relationship of landlord and tenant between the parties to the proceedings before the Rent Controller is a condition precedent for the enforcement of the rule embodied in this subsection, and therefore, any substantial question touching the very existence of the relationship must be determined before the Rent Controller can be truly regarded as being empowered to enforce liability‑for the deposit of arrears of rent due for in the absence of such relationship no rent can be said to be due at all. I consider, therefore that the words `before issues are framed' occurring in the first part of the sub section should be taken only to refer to the issues which may arise between a landlord and his tenant, but cannot be said to include a question as to the very existence of the tenancy. On this view of the law, the order made by the learned District Judge in this case would appear to be correct."

6. For the reasons to be mentioned presently, I find myself in agreement with Anwar‑ul‑Haq, J. in his interpretation, of section 13 (6) of the Ordinance. The Ordinancc has been promulgated to provide a number of safeguards for the tenants and restricting the rights of ownership of the landlords. It accordingly postulates that .no tenant will by falsely denying relationship of landlord and tenant deprive himself of those safe guards and that is why there is no express provision in the Ordinance, or any one of its predecessor enactment, for adjudicat ing upon such a controversy. But as the terms "landlord" and "tenant" are defined in the Ordinance, it necessarily implies that the Rent Controller has the jurisdiction to determine the relation ship between the‑parties. The omission of a provision to that effect in section 13 (6) of the Ordinance is thus satisfactorily explained on this hypothesis. This being the starting point, the interpretation of section 13 (6) does not present any real difficulty. The term used in it is "tenant" and not "respondent". In an action for eviction if the respondent denies that he is a tenant under the petitioner, the Controller must put the controversy in an issue and determine whether the plea raised in defence has merit. If the answer be that the respondent is a tenant under the petitioner, section 13 (b) of the Ordinance will immediately come into operation and the Controller may pass such orders as he deems fit in the circumstances of the case. Cases of this nature must necessarily be very few and this will meet the criticism that in putting this interpretation on section 13 (6) its object, namely, that the landlord may not be deprived of the rent due to him during the pendency of an action for eviction will be destroyed. The risk of adopting a false plea of this kind by a tenant is manifest. For example, in an action for eviction for non‑payment of rent the tenant will be precluded from pleading and leading evidence to the effect that he was not in default as the pleas that he was not a tenant under the petitioner and that he had been paying rent to him on due dates, will be mutually destructive.

7. Moreover, the issue whether the relationship of landlord and tenant exists between the parties is one of jurisdiction and should be determined first ; in case the answer be in the negative the Controller loses seisin over the lis and must stay his hands forthwith. It should be remembered in this connection that a Rent Controller is not a Civil Court of general jurisdiction but is a special‑Tribunal and as soon as it is established that the relationship of landlord and tenant does not exist between the parties, his jurisdiction over the subject‑matter of the lis and the parties terminates. Indeed it may be argued, and not without force. that a determination by a Rent Controller that the relationship of landlord and tenant existed between the parties or not, may be brought under challenge before a Civil Court, because settlement of disputed title to the property involved in an action under the Ordinance is not within its scope I am, therefore, of the view that the authority of a Rent Controller to entertain an action under the Ordinance and to pass order under section 13 (6) depends on his finding that the relationship of landlord and tenant exists between the parties. The observation of my learned brother Anwar‑ul‑Haq, J. in the order of reference that if the denial of relationship of landlord and the tenant is frivolous or baseless, the Rent Controller may ignore it also proceeds on the assumption that an issue will be framed and answered before proceeding with the trial of the case on merits.

8. In the result this appeal is dismissed and the parties directed to appear before the Rent Controller' on 16‑3‑

61. In the circumstances of the case, there will be no order as to costs. ANWAR‑UL‑HAQ, J.‑I agree. K.B.A.Appeal dismissed.