2007 PLP 1151 (CLC)

FAZAL-E-MIRAN CHAUHAN, J.

Brief facts of the case are that, respondent No.3 filed an ejectment petition against the petitioner and later on respondent No.4 was impleaded as a party before the learned Rent Controller, Lahore. The petitioner filed written-statement and denied relationship of landlord and tenant between the parties. Out of divergent pleadings of the parties, following issues were framed:-- (1) Whether relationship of landlord and tenant exists between the parties? OPA. (2) Relief.

2. The learned Rent Controller, Lahore vide judgment and decree, dated 21-7-2005, by holding that relationship of landlord and tenant exists between the parties, allowed the ejectment petition directing the petitioner to make 'payment of the arrears of rent amounting to Rs.1,37,800 and Rs.2,600 per-month as monthly rent. The petitioner filed an appeal before the learned Additional District, Judge, Lahore, who vide impugned order, dated 22-11-2005 directed the petitioner to deposit the arrears of rent from March, 2001 upto date and further to make the regular payment of current rent and also to produce receipts after the adjustment of security of Rs.10,000, hence, this writ petition.

3. Learned counsel for the petitioner states that; relationship of landlord and tenant was denied by the petitioner in the written reply, filed to the ejectment petition, therefore, under section 15(5) of the Urban Rent Restriction Ordinance, 1959, an order can only be passed in cases where relationship of landlord and tenant is admitted and not when the dispute in the appeal is by itself as to whether any tenancy exists between the parties. Further states that; section 15(5) ibid by reference makes section 13(6) of the Ordinance, applicable to appeals, which has been interpreted in various cases in which it was held that an order of deposit of rent cannot be passed where relationship of landlord and tenant is denied. Reliance is placed on Muhammad Siddique v. Fazal Hussain Qureshi and 2 others PLD 1996 Lah. 252.

4. Conversely, learned counsel for the respondents argues that; once. Rent Controller had found the petitioner to be a tenant, the power under section 15(6) to pass order of deposit of rent under section 15(5) of the Ordinance was available to the learned Additional District Judge.

5. I have heard learned counsel for the parties and perused the record. There is no cavil with the proposition that if relationship of landlord and tenant is denied by the tenant, no order of deposit can be passed by the Rent Controller till such time, the question of relationship is decided by him. The argument that once Rent Controller held a person to be a tenant, the appellate Court can pass an order of deposit of rent due during the pendency of appeal. In order to appreciate this contention, it is necessary to refer to section 15(5) of the Ordinance, which reads as under:-- "Section 15(5).

The appellate authority admitting an appeal for hearing shall have the same powers to direct the tenant to deposit the rent as are vested in the Controller under this Ordinance and, if the tenant makes default in compliance with such an order, then, if he is the appellant, his appeal shall be dismissed summarily and, if he is the respondent, his defence shall be struck off."

6. From bare reading and analysis of the above-mentioned section, it is evident that Appellate Authority can only direct the tenant to deposit rent. The word "tenant" used in section 15(5) instead of "appellant" is not without significance. If the intention as argued, was that an order of deposit of rent can be passed, there was nothing to prevent the Legislature from conveying their intention by using the word "appellant" and not "tenant". Thus, unless and until, the appellate Court conies to this conclusion that the appellate before it is a tenant, no order for deposit of rent can be passed by relying upon the findings of the Rent Controller, which is under appeal before the Appellate Authority.

7. The argument that once a person has been found to be a tenant by the Rent Controller, can be directed to deposit the rent, has no force, though seems to be attractive. It is settled principle that appeal is continuation of original cause and once appeal is filed, the entire matter stands reopened and finality of the impugned order disappears. In this respect, reliance is placed on F.A. Khan v. The Government of Pakistan PLD 1969 SC 520, wherein B.Z. Kaikaus, J. observed that it would be thus anomalous to hold though the question as to whether or not a person is a tenant remains to be decided by the Appellate Court, the appellant for the purposes of section 15(5) should be considered to be a tenant in view of the findings of the Rent Controller and be directed to deposit the rent; the question of tenancy was yet opened before the Appellate Court and that the hearing of appeal, in the Appellate Court itself comes to the conclusion that the order for deposit of rent under section 15(5) of the Ordinance, 1959 has not been complied with.

8. Question was raised in PLD 1996 LA. 252 (supra) and it was observed by the learned Judge while accepting the writ petition that the power of Appellate Authority to deposit the rent is co-existent with the Rent Controller.

9. The matter can also be examined from another angle. Section 15(5) of the Ordinance brings in by reference section 13(6) of the Ordinance. While interpreting section 15(5), the Supreme Court in M. Imamuddin v. Mst. Surriya Khanum through Legal Heirs PLD 1991 SC 317 has been pleased to hold that the power of Appellate Authority to order the deposit of rent is co-existent with the Rent Controller. Consequently, if in a case, where the relationship of landlord and tenant is denied, the Rent Controller cannot pass an order for deposit of rent without first determining existence of that relationship between the parties, the same position should hold good as regards the power of the Appellate Court. As while directing the deposit of rent, the Appellate Court acts under section 13(6) of the Ordinance, it must necessarily be subject to the same restrictions as are placed on the Rent Controller and the Appellate Court cannot claim greater power than the same vesting in the Controller.

10. This view is again fortified by Muhammad Qayyum Qureshi v. Sheikh Ifiikhar Ahmed and others 2001 CLR 104 (Lahore), wherein it was observed that payment of arrears under section 15(5) is always followed determination of relationship. If the finding of fact had been given by the learned Rent Controller holding that the petitioner is tenant under the respondent, thus, after determination of this issue in favour of the respondent/landlord, the Appellate Court could validly direct the petitioner to make the deposit of arrears of rent in terms of section 15(5) of the Ordinance. In the instant case, the learned Additional District Judge, at the preliminary hearing of appeal, directed the petitioner/appellant to submit receipts regarding deposit of rent and also deposit the arrears of rent from March, 2001 up to date or produce receipt thereof', subject to adjustment of security of Rs.10,

000. This order directing the petitioner/appellant to deposit the arrears of rent without giving any finding regarding relationship of landlord and tenant by the learned Additional District Judge, is without lawful authority and against the spirit of section 15(5) of the Urban Rent Restriction Ordinance, 1959.

11. In view of what has been stated above, this writ petition is allowed and the impugned order, dated 22-11-2005, passed by the learned Additional District Judge, Lahore is declared to be without lawful authority and of no legal effect. However, the Appellate Court is directed to hear and decide the appeal of the petitioner within one month of the receipt of this order, under intimation to the Deputy Registrar (Judi.) of this Court. Writ petition accepted. M.H./M-184/L Case remande