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Civil Petition No. K‑117 of 1982, decided on 15th May, 1982.

‑‑‑Art. 185(3)‑‑Sind Rented Premises Ordinance (XVII of 1979), S.15‑ Jurisdiction of Rent Controller‑‑Relationship of landlord and tenant‑ Admission of correctness of findings by counsel of parties‑‑Effect of‑ Rent Controller reaching conclusion that no relationship of landlord and tenant existed between parties and terminating proceedings for want of jurisdiction‑‑Counsel for both parties conceding before High Court that no fault could be found with said findings‑‑In view of such admission, petitioner not allowed to challenge before Supreme Court order of Rent Controller whereby he decided issue of relationship of landlord against petitioner‑‑Leave to appeal refused.

Shabbir Ghaury, Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing: 15th May, 1985.

This petition arises out of an application filed by petitioner on 31‑8‑1976 for respondent's eviction from one‑half portion of Quarter No. 6/441 Liaquatabad, Karachi. Petitioner claims to be the owner of the entire Quarter and occupies the other portion of the Quarter. She asserted that respondent being a tenant in respect of the portion of the Quarter in his occupation was guilty of default in payment of rent, and, therefore, liable to eviction there from. The ejectment application was allowed by the Rent Controller by an ex parte order, dated 15‑4‑1977 and the petitioner was put in possession of the premises in execution proceedings on 1‑11‑1977.

On 12‑11‑1977 respondent applied to the Rent Controller for setting aside the ex parte order and for the restitution of the possession of the premises to him. His request was rejected by the Rent Controller and an appeal filed by him to the District Judge was also dismissed. A second appeal filed by him in Sind High Court, however, succeeded by the judgment, dated 13‑5‑1979 and by consent the ex parte order passed by the Rent Controller was set aside, and the case was remanded to him for fresh disposal after hearing both the parties, and deciding firstly, the preliminary issue whether relationship of landlord and tenant existed between the patties.

On remand, respondent applied to the Rent Controller for restitution of possession of the Quarter, and the Rent Controller, after hearing the parties, passed the order, dated 12‑12‑1979 in respondent's favour directing that the possession be restored to him. Petitioner then challenged this order in an appeal to the High Court and also filed a Constitutional Petition No. 437 of 1980 assailing the same order. Both, the appeal and the Constitutional Petition were however dismissed.

In the meantime, the Rent Controller who was dealing with the case on remand from the High Court proceeded further, and after hearing the parties, decided the preliminary question as to relationship of landlord and tenant between the parties against the petitioner, and on this view of the case dismissed the ejectment application.

Petitioner then filed an appeal against this order in Sind High Court. However, in view of the fact that both the parties were claiming title to the property, learned counsel for both the parties agreed before the High Court that "since the question of title between the parties is being decided by the civil Court no fault can be found with finding of the Rent Controller that he cannot exercise jurisdiction for lack of relationship of landlord and tenant between the parties."

It was stated by the learned counsel who appeared for the petitioner before the High Court that she had filed a suit for declaration of title which was decreed in her favour; but the appeal filed by respondent against the judgment and decree was pending.

In the circumstances, however, learned Judge in the High Court considered the question as to the fate of the orders passed by the Rent Controller during the pendency of the proceedings before him which were terminated in view of the conclusion reached by him that he had no jurisdiction to deal with the cases there existed no relationship of landlord and tenant between the parties. On this question, the view of the learned Judge was as follows:‑

"It is indisputable that the proceedings before the Rent Controller now suffers from a great jurisdictional defect because if the parties before him are not landlady and tenant as in the instant case, he cannot try that case and he has no jurisdiction to try that case. Rent Controller becomes divested of the jurisdiction which is conferred upon him by the statute if he finds that the parties before him are not landlady and tenant. The moment this defect, and for that matter a jurisdictional defect is discovered, proceedings entertained by him become coram non judice, and all such proceedings and orders can be stated to be of on legal effect as having been passed without lawful authority."

On this view of the case, he directed the petitioner to put respondent in possession of the half portion from where he was evicted. Subject to this direction, the learned Judge otherwise dismissed the appeal by the judgment, dated 22‑2‑1982.

Petitioner now seeks leave to appeal and the learned counsel Mr. Shabbir Ghaury appearing on her behalf sought to challenge the order of the Rent Controller whereby he decided the issue of relationship of landlord against the petitioner. Learned counsel further submitted that the learned Judge in the High Court has also erred in law in excluding from consideration the judgment and decree of the civil Court wherein the question of title has been conclusively decided in petitioner's favour and she had been held to be the owner of the entire Quarter.

As noticed earlier, it was conceded on behalf of both the parties, including the petitioner, that no fault can be found with the finding of the Rent Controller that he cannot exercise jurisdiction for lack of relationship between the parties of landlord and tenant.

In view of this admission made on behalf of the petitioner before the High Court, it does not lie in the mouth of the petitioner to raise the first plea before us.

The second submission made by the learned counsel was not raised before the High Court, and indeed the learned Judge in the High Court would have in fact fallen into an error if he were to take notice of the judgment passed between the parties in some other proceedings. This submission also has no force and the petition is, therefore, dismissed. We would however like to clarify that none of the decisions in the proceedings out of which this petition has arisen are meant to affect the rights of the parties as established in the suit filed by any parties regarding title to the property in question.

M. I. Petition dismissed.

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