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Constitutional Petition No. S‑98 of 1985, decided on 5th October, 1986.

‑‑‑Ss. 2(b)(j) & 17(2)(i)‑‑Eviction of tenant‑‑Relationship of landlord and tenant denied by tenant‑‑Preliminary issue on relationship and jurisdiction of Rent Controller‑‑Legality‑‑Rent Controller, held, rightly framed preliminary issue to decide relationship of landlord and tenant as decision on that question would determine whether Rent Controller had jurisdiction to deal with case or not.

P L D 1977 Lah. 516 and Akhtar Ali Parvez v. Altafur Rehman P L D 1963 (W.P.) Lah. 390 ref.

‑‑‑S. 17‑‑Failure of tenant to adduce evidence‑‑Effect‑‑Where tenant failed to adduce evidence in spite of proper and sufficient opportunities, Rent Controller, held, was perfectly justified in closing his side and deciding issue accordingly.‑‑[Evidence].

‑‑‑Ss. 17 & 24‑‑Nullity of original order‑‑Effect on subsequent order‑‑If original order of Court was nullity in law, all edifice built on such order, would also fall and could not be sustained‑‑Non‑speaking and very short order on preliminary issue passed by Rent Controller without reasoning, without application of his mind and without taking into consideration evidence and pleas of parties before him, being no order at all in eyes of law, subsequent orders passed by Rent Controller as well as Appellate Courts below based on such basically illegal order, would also not be sustained in circumstances.

P L D 1976 Lah. 1015 ref.

‑‑‑S. 17‑‑Qanun‑e‑Shahadat Order (10 of 1984), Art. 115‑‑Ejectment proceedings‑‑Relationship of landlord and tenant‑‑Denial of‑‑Question of estoppel‑‑ Determination of‑‑Tenant denying relationship of landlord and tenant, himself claimed to be owner of property in dispute‑‑Matter involved in case being complicated one, High Court remitted case to Rent Controller for retrial to decide plea of landlord that Art. 115 of Qanun‑e‑Shahadat Order, 1984 had estopped tenant from challenging right of landlord.

P L D 1985 S C 1 ref.

K . A . Wahab for Petitioner.

Khalilur Rehman for Respondents.

Date of hearing: 29th August, 1986.

This petition impugnes the orders, dated 29‑7‑1984, 15‑9‑1984 and 13‑10‑1984, passed by the learned Rent Controller in Rent Case No. 8 of 1983 and the judgment, dated 7‑10‑1985, passed by the learned District Judge in Rent Appeal No. 11 of 1985, and declaration is sought from this Court, that the said orders and judgment are illegal, void, without lawful authority and without jurisdiction.

2. The brief facts leading to these proceedings are, that the respondent No. 1 put in possession of Quarter No. 12‑C, Model Colony, Karachi the deceased predecessor‑in‑title of the petitioner hereinafter called (the deceased) at the monthly rent of Rs.300. The deceased allegedly failed to pay the rent from 1‑1‑1978 and, therefore, the respondent No. 1 filed the Rent Case No. 8 of 1983 for eviction of the deceased under section 17(2)(i) of the Cantonments Rent Restriction Act, 1963. The deceased resisted the rent application on the ground, that the allotment order in favour of respondent No. 1 had been cancelled by the concerned authorities, who allotted the same to the deceased and, therefore, there no more existed relationship of landlord and tenant between the parties. On the pleadings of the parties, the learned Rent Controller framed the following two preliminary issues:‑‑

"(1) Whether the applicant is the owner of the case property

(2) Whether relationship of the tenancy between the applicant and tenant exists "

The respondent No. 1 examined himself on the two preliminary issues and was cross‑examined by the learned counsel for the deceased. However, the deceased failed to examine himself or lead any evidence in his support in spite of several opportunities being given by the learned Rent Controller. The learned Rent Controller, thereafter, gave his findings on preliminary issue No. 2 only vide order, dated 29‑7‑1984 which is reproduced as under:‑‑

"Case called. Parties are present. The counsel for the applicant is also present. Arguments of both sides have been perused minutely. I am inclined to agree with the pleas o the applicant's counsel and hold that a relationship of landlord and tenancy does exist between the parties and as such this rent case should proceed further in accordance with law. The parties are directed to file their respective statement of accounts before the next date of hearing i.e. 25‑8‑1984. Announced."

In pursuance of his finding, the learned Rent Controller passed another order, dated 15‑9‑1984 directing the deceased to deposit arrears of rent as well as the current rent. The deceased failed to deposit the arrears of rent as ordered by the learned Rent Controller. The learned Rent Controller struck off his defence vide order, dated 13‑10‑1984. Appeal filed by the deceased was also dismissed by the learned District Judge vide impugned judgment, dated 7‑10‑1985. Hence this petition was filed by the L. Rs. of the deceased who died in the meantime.

3. The main arguments of the learned counsel for the petitioners is, that the deceased (the petitioner's predecessor‑in‑title) was not given proper opportunity by the learned Rent Controller to produce evidence and further that this order, dated 29‑7‑1984 was in fact no order as it does not disclose the reasons on the basis of which the learned Rent Controller formed his opinion. It is contended by the learned counsel for the respondent, that it was not necessary for the learned Rent Controller to frame the preliminary issue and to decide it in the formal manner. He has relied upon P L D 1977 Lah. 516 wherein it has been held as under:‑‑

"Relationship of landlord and tenant preliminary determination of issue as to Rent Controller not always and in each case bound to frame issue on relationship of landlord and tenant and decide it in formal manner after formally affording opportunity of adducing evidence to parties‑‑Plea on its very face looking frivolous, mala fide, and raised to prolong proceedings‑‑Rent Controller empowered to overrule same by an order ordinarily speaking and indicating application of mind‑‑Cases involving substantial question of fact, mixed with law or otherwise, made bona fide, nowhere, might require recording of evidence‑‑Such cases, however, rare since in highly controversial and complicated cases, of title, Rent Controller might not like to go into details."

It was held by a Full Bench of Lahore Bench of West Pakistan High Court in the case of

Akhtar Ali Pervex v. Altafur Rehman P L D 1963 (W.P.) Lah. 390 as under:‑‑

"When the objection is taken of jurisdiction of the Rent Controller that objection must be treated a preliminary objection must be resolved before taking any further action."

It may be stated, that in the instant case objection was taken as to the relationship of landlord and tenant and that allotment order in favour of respondent had been cancelled. In fact the learned Rent Controller rightly framed the preliminary issue to decide the question of relationship of landlord and tenant between the parties which in fact amounted to a decision as to whether he had jurisdiction or not. The contention that deceased was not given proper opportunity to adduce evidence is not borne out from the facts on record. He was in fact given sufficient opportunities spreading over period of 6/7 months to adduce evidence. The learned Rent Controller was perfectly justified in closing side of the deceased and deciding the preliminary issues. However, the question to be considered is, whether this order of the learned Rent Controller, dated 29‑7‑1984, which has been reproduced above can be considered to have decided the issue of relationship of landlord and tenant. Word "Decision" has been defined in Ballentine's Law Dictionary as under:‑‑

"'DECIDE' to determine an issue or issues. To 'decide' includes the power and right to deliberate, to weigh the reasons for and against, to see which preponderate and to be governed by that preponderance."

Word "Decision" has also been defined in P L D 1976 Lah. 1015 to be a statement of fact judicially determined.

In the instant case substantial questions of fact and law were raised. It was alleged that the allotment order in favour of respondent was cancelled by the competent authority and then allotment order was issued in favour of the deceased /tenant. It is submitted by the learned counsel for the petitioner that at the time when the matter was pending before the learned Rent Controller, the allotment order in favour of the deceased was also cancelled but his writ petition against cancellation of order being C.P. No. D‑973 of 1983 was pending in the High Court. It is further submitted, that this petition has now been disposed of by a D . B. of this Court on 20‑3‑1986, and the matter has been remanded back to the Director Council, Karachi‑5 with directions to decide afresh the matter after hearing the respective parties. It is further submitted that by this order the High Court has in fact set aside the order of cancellation of allotment order of the deceased and has directed the concerned authority to decide the question of cancellation afresh after hearing the parties. It is also argued, that till the allotment order in favour of the deceased is again cancelled it will be deemed to be subsisting and valid. The learned counsel for the petitioner has produced a certified copy of judgment of the D.B. in the Constitutional Petition No. D‑973 of 1983. As already pointed, the learned Rent Controller considered that issues involved substantial questions of fact and law, therefore, he allowed the parties to adduce evidence and in fact the respondent had examined himself and was cross‑examined. Apart from this evidence, there were also pleadings of parties before the learned Rent Controller. Thus, he had sufficient material before him for deciding) the issues on merits. The decision of the Rent Controller is however, not speaking and does not show as to what grounds weighed with him to come to the decision arrived at by him. This decision involved the questions as to whether the allotment order in favour of respondent was cancelled or not and if it was cancelled, whether the relationship of landlord and tenant still existed between the parties. He had also to consider what was the effect, if any, on this relationship by issue of allotment order in favour of the deceased and the consequences of its cancellation and petition pending in the High Court against this) cancellation. Thus, the questions involved were too complicated to be decided by a simple non‑speaking order reproduced above. In fact the order is contained in the two sentences of the order which have been: underlined. This order is too short and without any reasoning. It does not give the impression of being a judicial order or to have been passed by the learned Rent Controller after due application of his mind and consideration of the evidence and pleas before him. Such an order cannot be said to have resolved issue in question and cannot be said to be an order passed by the learned Rent Controller in the proper exercise of his jurisdiction. It appears only to be a colourable exercise of jurisdiction. In fact it is no order at all in eyes of law. All the subsequent orders passed by the learned Rent Controller as well as the judgment of the learned Appellate Courts are based on this order. It is a settled law that if an order is nullity in law all the edifice built on such an order will also fall and cannot be sustained.

It is argued by the learned counsel for the respondent, that section 116 of Evidence Act estopped the tenant from challenging rights of respondent /landlord. However, the question involved in this case is not so simple. Reference may be made to P L D 1985 S C 1. The deceased/tenant himself claimed to be owner of the property in dispute. I may not go in detail on this issue as I proposed to remand the case for retrial and any observation made by this Court on this point or other points of fact and law raised by the learned counsel for the respondent may prejudice case of the parties before the learned Rent Controller. I accordingly allow this petition and declare the impugned orders and findings to be without lawful authority and of no legal consequence. The judgment and decree passed by the learned Rent Controller and Appellate Court are set aside and the case is remanded back to the learned Rent Controller with directions to decide the question of relationship of landlord and tenant between the parties in accordance with law after affording reasonable opportunity to both the parties to produce evidence if any, in support of their respective contentions and also decide the rent application afresh.

H.B.T. Petition allowed/Order accordingly.

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