1983 PLP 1901 (CLC)

Syed Mubashar Ali and Nazir Ahmad Siddiqi for Petitioners. Mian Muhammad Jabangir Arshad for Respondents. Date of hearing : 13th April, 1983. This Constitutional Petition has been filed by Fazal Din and Niamat Ali petitioners challenging the validity of order, dated 7th February, 1983 passed by Additional District Judge, Multan, whereby he set aside the order, dated 19th April, 1981 of the Rent Controller, Multan, and ordered eject ment of the petitioners from Plot No. 3649/1 owned by the respondents.

2. The facts leading to this petition, as narrated by the learned counsel for the . petitioners, briefly are. that a Plot No. 3649/1, Ward No. 8, Muslim, Khasras Nos. 1707%1561, 1277/2 and 871, Chah Shah Islamwala, Taraf Saddu Hissam, Railway Road, Multan, was rented out to the petitioners on 5th February, 1963 vide rent note Exh. A/2 (Annexure 'B') at the rate of Rs. 50 p. m. (later enhanced to 150 p. in. and then Rs. 200 p. m.) by its owners namely, Ghulam Yasin, predecessor‑in -interest of respondents No. 2 to 4 and Rahim Bakhsh father of respondents Nos. 5 to

6. Some time later the petitioner allegedly joined Haji Din Muhammad respondent No. 7 as their co‑tenant with the permission of the landlords. On 26th July, 1976, Ghulam Yasin and respondents Nos. 5 and 6 filed ejectment petition against the petitioners and Haji Din Muhammad respondent No. 7, under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959 (hereinafter called the Ordinance), on the grounds of default in payment of rent since April, 1976 and the bona fide personal need. The petitioner` in their written statement denied the relationship of landlord and tenant alleging that they had already vacated the petitioners' plot and the one in their possession bears Khasras Nos. 1256/1165, 1260/ 1165, 315/9 and 154 purchased by them through registered sale‑deed from one Amir Bakbsh etc. and the respondents have no concern whatsoever with it. In order to resolve the controversy, a preliminary issue, whether the relationship of landlord and tenant existed between the parties or not was framed. The parties led their evidence. After considering the material on record, learned Rent Controller having found the issue in favour of the petitioners dismissed the ejectment petition on 19th July, 1979. The res pondents went in appeal which was accepted and the Additional District Judge remanded the case for fresh decision on 13th November, 1980.

3. Having received the case back, the learned Rent Controller, appoint ed Tehsildar Multan as Local Commissioner to report about the factum of the possession of the suit property. He filed his report on 31st January, 1981 (Annexure 'S'). Ultimately the learned Rent Controller came to the conclusion that the petitioners were not in possession of the disputed pro perty, and dismissed the ejectment petition once again. This order was also assailed in appeal by the respondents. Learned Additional District Judge vide order, dated 7th February, 1983 accepting the appeal reversed the finding of the learned Rent Controller and held that the petitioners were occupying the disputed Plot No. 3649/1, as tenants under the respondents and ordered their ejectment there from. Feeling aggrieved the petitioners have challenged the eviction order through this writ petition.

4. I have beard the learned counsel for the petitioners as well as for the respondents and also perused the relevant documents appended with the petition.

5. Learned counsel appearing on behalf of the petitioners argued that because the ejectment proceedings were initiated in the year 1976, prior to amending Ordinances IX of 1979 and VII of 1980 came into force, there fore, this petition should be decided in accordance with unlamented pro visions of sections 13 and 15 of the Ordinance. He further argued that the finding of the Rent Controller as to the non‑existence of relationship of landlord and tenant between the parties being not an order under sections 4, 10, 12 and 13 of the Ordinance, was not appealable and the order of the learned Additional District Judge, dated 13th November, 1980 remanding the case for fresh decision, was therefore, wholly without jurisdiction and consequently the subsequent orders of Rent Controller, dated 12th April. 1981 and of Additional District Judge, dated 7th February, 1983 automati cally crumble down being superstructure of the earlier illegal remand. order. In this regard reliance has been placed on Messrs Kandawala B. Co. Ltd. Lahore v. Sh. Fayyaz‑ud‑Din. and others 1969 S C M R 720, Abdul Salam v, Sh. Sharif Ahmad and another1971 S C M R 596, Mst. Aisha Bai v. Mst. Momin Basi P L D 1973 Kar. 419 and Jalil Ahmad Khan v. Qamar‑ud‑Din Ahmad P L D 1976 Lah. 80.

6. On the other hand, learned counsel for the respondents contended that the order of the learned Rent Controller, wherein it was held that relationship of landlord and tenant did not exist between the parties and dismissed the ejectment petition, was appealable being an order within the meaning of section 13 of the Ordinance and the Appellate Court was there fore, competent under the law to substitute its own finding in place of the finding of Rent Controller. He relied on Muhammad Hussain v. Muhammad Bashir and 4 others P L D 1974 Lah. 446 and Muhammad Bakhsh and another v. Haq Nawaz P ‑L D 1,980 Lah. 506.

7. In almost all the cases cited by the learned counsel for the peti tioners, the Rent Controller found that relationship of landlord and tenant existed between the parties, therefore, it was held that such an order was not contemplated by section 13, hence not appealable. But the position in the, instant case is just otherwise, as according to the learned Rent Controller, there did not exist relationship of landlord and tenant between the parties and consequently dismissed the ejectment application, which means that the matter was finally decided. This situation has not been taken note of any of the above‑cited cases and, therefore, I am of the view that this authorities being not in point are of no avail to the petitioners.

8. In the case of Muhammad Hussain v. Muhammad Bashir and 4 others a similar question as has been posed in this writ petition came up for consideration before the learned Chief Justice Sardar Muhammad Iqbal (as he then was), wherein his Lordship visualised that the decision of the Rent Controller about non‑existence of relationship of landlord and tenant can be erroneous and to rectify such an error an appeal can be filed under section 15 as the Rent Controller happens to seize of the matter under section 13 of the Ordinance. Again in a recently reported case Muhammad Bakhsh and another v. Haq Nawaz my learned brother Muhammad Ilyas, J., having surveyed all the relevant authorities on this point has‑held that where a Rent Controller records a finding that the relationship of landlord and tenant exists between the‑ parties his decision in this behalf is not an order muchless an order under section 13 of the Ordinance and is, therefore, not appealable; but where the Rent Controller holds that such relationship is not there and, consequently, makes an order dismissing the ejectment application for want of jurisdiction, his order is an order under section 13 and can be appealed against under section 15 of the Ordinance. I am in respectful agreement with the view expressed in the above‑mentioned precedent cases and find that the learned Additional District Judge accepting the appeal of landlords/respondents had ample authority to remand the case vide his order dated 13th November, 1980 for fresh decision. Likewise the order of the Additional District Judge, dated 7th February, 1983 accepting the appeal and ordering the ejectment of the Petitioners is also with jurisdiction and with lawful authority and, therefore, cannot be interfered with.

9. After the amending Ordinance IX of 1979 came into force, section p 15 specifically provided that any party aggrieved by an order of Rent Controller finally disposing of an application under the Ordinance, entitled to prefer an appeal to the District Judge. Even before this amend ment came in, the High Court was of the view, as discussed above, that an order dismissing ejectment application, on account of a finding of non existence of relationship of landlord and tenant, was appealable. I think the above amendment was brought in just to explain the intention of the Legislature regarding the orders appealable, under the Ordinance, and therefore, has retrospective effect. No other point has been raised.

10. For what has been stated above, this petition has no merit and is, therefore, dismissed. M. Y. H. Petition dismissed.