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‑‑‑Ss. 16(2) & 21(1)‑‑Alleged unauthorised tenant‑‑Tentative rent order against‑‑Non‑compliance of such order‑‑Striking off defence‑‑Legality‑ Tentative rent order was passed against alleged unauthorised tenant before filing of his written statement‑‑Rent Controller struck off defence and ordered ejectment of tenant due to his committing default in depositing rent for some months‑‑Tentative rent order passed by Rent Controller against alleged unauthorised tenant before filing of written statement, held, was illegal‑‑Order of Rent Controller striking off defence of tenant on non‑compliance of illegal tentative order was set aside in circumstances.

Muhammad Ismail v. Israr Ahmad P L D 1961 Lah. 601 ref.

K.M. Nadeem for Appellant.

Fazal Bhoy for Respondents.

Date of hearing: 18th March, 1984.

Ejectment Application No. 287/65 was filed by the respondent/landlord on 20‑8‑1965 in respect premises of the Office n question against one Muhammad Bashir and the appellant Syed Ali imam. Bashir was shown as the tenant and the grounds of eject ment were default and unauthorised subletting by the tenant Bashir to the appellant Syed Ali Imam. Both the opponents were served. Bashir remained ex parte. On 2ol1‑1966 the matter came up before the Rent Controller who passed the following order:‑‑

"20‑1‑1966. Advocates for the parties present. Written statement is not i ed. The opponent is tentatively ordered to deposit Rs.693 as arrears of rent till December, 1965, before 15^th February, 1966, and continue depositing the current monthly= rent at the rate of Rs.31.50 starting from January, 1966, onwards before the 15th of each month till the decision of the case. "This is subject to adjustment, if any, after evidence. The Advocate for the opponent may file his written statement before the next date.

The case is adjourned for framing issues."

In 1971 a written statement was filed by the appellant in which he stated that previously Bashir was the tenant but as he had not paid rent for several months he wanted to vacate the premises but the appellant intervened and was taken as a tenant by the respondent. The plea taken by the appellant in the written statement was, therefore, that the appellant had become a direct tenant of the respondent. It appears that the order, dated 20‑1‑1966 fixing the tentative rent was being complied by the appellant for a number of Years. Evidence was recorded by the Rent Controller and he granted the ejectment application both on the ground of default as well as on the ground of subletting. The appellant filed an appeal before the learned District Judge who by order, dated 15‑3‑1975 remanded the case to the Rent Controller directing that the legal representatives of Muhammad Bashir be brought on record as Muhammad Bashir had died in the meantime. The matter came up before the Rent Controller but the names and addresses of the legal representatives of Muhammad Bashir could not be ascertained. The Rent Controller had directed the appellant to supply the names and addresses of the legal representatives of Muhammad Bashir but apparently this could not be ascertained either by the appellant or by the respondent. In the meantime the appellant, who was complying with the tentative rent order, dated 20‑1‑1966, apparently defaulted in the deposit of rent for some months and as such an application under section 16(2) of the 1979 Rent ordinance was filed by the respondent and by the order, dated 20‑2‑1983, the Rent Controller accepted the application and struck off the defence of the appellant and ordered ejectment. Being aggrieved, the appellant has filed this appeal under section 21(1) of the 1979 Rent Ordinance. I have heard Mr. K.M. Nadeem, learned counsel for the appellant and Mr. Fazal Bhoy, learned counsel for the respondent.

2. The main contention raised on behalf of the appellant is that as the respondent had not accepted the appellant as a tenant and it was their case that the premises in question had been illegally and without permission of the respondent sublet by Muhammad Bashir to the appellant, the tentative rent order directing the appellant to deposit rent could not have been passed. In any case it was contended that the tentative rent order, in view of the allegation about subletting, should not have been passed before the written statement had been filed by the appellant. Learned Counsel had relied upon a decision of the Lahore High Court in the case of Muhammad Ismail v. Israr Ahmad P L D 1961 Lah. 601. In this case, as it is an admitted position that Muhammad Basher was ex parte, the tentative rent order, dated 20‑; 1966 was in fact passed against the appellant. It cannot be said that the tentative refit order had been passed against Muhammad Bashir as he was ex parte. In the circumstances of the case, Mr. Fazal Bhoy, Avocate does not oppose this appeal but requests that as this is a matter in which ejectment application was filed in 1965, an order be made directing the Rent Controller to finalize this case in the next few months.

3. In view of the fact that Muhammad Bashir was ex parte, the case of the respondent was that the appellant was an unauthorised occupant of the premises and written statement had not yet been filed by the appellant, the Rent Controller should not have been passed tentative rent order, on 20‑1‑1966. Accordingly F.R.A. No. 26,7/83 is allowed and the impugned order, dated 20‑2‑1983 of the Rent Controller striking off the defence on the non‑compliance of an illegal order, is set aside. There will be no order as to costs.

This is a matter in which the ejectment case was filed in 1965. The entire evidence has been recorded. Both Mr. Fazal Bhoy and Mr. K.M. Nadeem, Advocates state that they do not wish to lead any further evidence. Muhammad Bashir was ex parte before the Rent Controller.

It is the case of both the parties that neither Muhammad Bashir nor any of his legal representative is in occupation of the premises in question. It is further obvious that neither Muhammad Bashir, and in case he has died, nor any of his legal representatives has any interest in the premises in question. The dispute is now between the appellant and the respondent only. It is, therefore, not necessary to join the legal representatives of Muhammad Bashir as parties to the rent case.

The R & P will be sent to the Court of the Rent Controller concerned forthwith. The next date of hearing before the Rent Controller concerned is fixed as 14‑4‑1984 for arguments. If the concerned Court is lying vacant the file will be placed before the link Court and the matter will be argued on 14‑4‑1984 before the link Court. Both the learned counsel i.e. Mr. K. M. Nadeem and Mr. Fazal Bhoy have noted the date of hearing on behalf of the parties No notice will be sent to the parties for the hearing fixed on 14‑4‑1984. Not more than one or two adjournments will be granted by the concerned Rent Controller and the case will be finalised before 31‑5‑1984

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