1999 PLP 3031 (MLD)

The Rent Controller during the course of proceedings while deciding application under section 16(1) of the Ordinance passed an order on 25-2-1997 whereby directed the appellants in each case to deposit the arrears of rent as well as future monthly rent in Court. Subsequently the respondent on 29-3-1997 filed an application under section 16(2) of the Ordinance wherein he prayed to struck off the defence of the appellants due to non-compliance of the order, dated 25-2-1997. These applications were also resisted by the appellants by way of filing of their objections in each case. However, the Rent Controller after hearing the arguments reached to a conclusion that due to non-compliance of the order passed under section 19 (I) of the Ordinance, dated 25-2-1997, the defence of the appellants was liable to be struck off and accordingly he passed an order of identical nature in all cases, which has been impugned in these Rent appeals. I have heard the learned counsel for the parties and have perused the case record. The learned counsel for the appellants have vehemently argued that it was incumbent upon Rent Controller to have first decided the question of jurisdiction with regard to the existence or non-existence of the relationship of landlord and tenant between the parties and unless the question of jurisdiction was decided by the Rent Controller in accordance with law, passing of rent order, dated 25-2-1997 and subsequently order for striking off defence, dated 21-5-1997 against appellants were nullity in the eye of law. The learned counsel further submitted that the question of existence or otherwise of the relationship of landlord and tenant between the parties could not have been decided by the Rent Controller in a summary and slipshod manner while dealing with an application under section 16(1) of the Ordinance. Since the jurisdiction of the Rent Controller was dependant upon the existence of relationship of landlord and tenant between the parties, the Rent Controller without affording full opportunity to both the parties was legally not competent to decide such issue. The learned counsel in support of his contention also referred to the pleading of the appellant to show that the relationship of landlord and tenant was specifically disputed by each tenant. He lastly submitted that there was not an iota of evidence available before the Rent Controller for deciding the question of relationship of landlord and tenant in affirmative, but the Rent Controller in a fallacious and arbitrary manner proceeded and decided the same which makes the whole proceedings a nullity and liable to be set aside. The learned counsel placed reliance on the case-law reported as P L D 1976 S C 208; 1987 M L D 3263, 3265, 3269 and 1993 C L C 1702 and 2385. On the other hand, Mr. Lachmandas Rajput, the learned counsel for the respondent supported the order of the Rent Controller and argued that the respondent placed on record, before the Rent Controller, documentary proof about his ownership in respect of the disputed premises known as Javaid Market" and the fact that the appellants in each case were in possession of shops in the said market was not disputed and in such circumstances the existence of landlord and tenant relationship was established and, therefore, the Rent Controller was justified in passing order under section 16(1) of the Ordinance, dated 25-2-1997 and subsequent order for striking off the defence, dated 21-5-1997. The learned counsel in support of the his contention placed his reliance on the case-law reported as P L D 1977 Lah. 516, 1984 C L C 626 and P L D 1991 S C

242. Mr. Jam Jamshed Akhtar, learned counsel also representing the respondent in these connected rent appeals adopted the same arguments as advanced by Mr. Lachmandas Rajput. I have considered the arguments advanced before me and also perused the case-law. In the instant case from the pleadings of the parties it is clear that the claim of the respondent that he is owner of the disputed premises and also landlord of the same and that the appellants are his tenant was denied by the appellants in clear words. The appellants in their written objections have specifically pleaded that their exists no relationship of landlord and tenant between the parties and the Rent Controller had no jurisdiction in the matter. In such circumstances adjudication of this issue made by the Rent Controller, while dealing with an application under section 16(1) of the Ordinance, in a summary manner was not warranted by the law. The issue of existence of relationship of landlord and tenant cannot be decided by the Rent Controller tentatively or in an arbitrary manner, without affording full opportunity to both the parties, to prove their respective contentions. In the instant case the perusal of the record and proceedings of the Rent Cases reveals that the Rent Controller decided the issue of landlord and tenant in a summary manner arid on a wrong presumption that words "ownership" and "land lordship" are synonymous to each other and word occupant and tenant are also synonymous. This may be so in the mind of an ordinary person but legally each of these words would carry its different meaning. Therefore, it cannot be presumed that in each case a person in possession of a premises owned by some other person will be his tenant. In the facts and circumstances of these cases when there was a serious dispute about the existence or non-existence of landlord and tenant relationship between the parties the Rent Controller should have afforded full opportunity to both the parties and after recording their evidence he should have decided this issue, alongwith other issues at the time of final disposal of the case. It would have been much appropriate for the Rent Controller to have decided the application under section 16(1) of the Ordinance pending for disposal, alongwith the main case. In view of the above position when there is no legal and proper findings on the issue of relationship of the landlord and tenant between the parties the impugned orders are liable to be set aside. Reference in this regards may be made to the case of Muslim Raza v. Mst. Saghra Bano 1987 M L D 3269 wherein a Hon'ble Single Judge of this Court has observed as under:-- "...the appellant had clearly denied the relationship of landlord and tenant between himself and the respondent and without first determining the issue the learned Controller was not competent to direct ejectment of the appellant from the demised premises. It may be pointed out that the Controller has been vested with jurisdiction to try cases between the landlord and the tenant and when such relationship between the parties is denied it is incumbent on the Rent Controller to first determine such issue and then proceed further in the matter. Although no authority is needed on the point, nevertheless, reference in this respect may be made to Habibullah v. Bawa Vasdevqir Chelo Shambhugir (P L D 1968 Kar. 869). " The case-law referred by the learned counsel for the respondent is on different facts and not relevant in this case. "As a result of above discussion all these rent appeals are allowed and the orders of the Rent Controller, dated 21-5-1998 as well as the order, dated 25-2-1997 passed on applications under section 16(1) of the Ordinance are set g aside. The Rent Controller is directed to proceed with the cases in terms of the directions contained in the short order, dated 25-9-1998. It will be open for the Rent Controller to pass fresh order on application under section 16(1) of the Ordinance at the time of final disposal of rent case. Foregoing are the reasons of the short order, dated 25-9-1998. H.B.T./A-313/K Appeal allowed.