IBRAHIM Versus ABID ALI

The respondents filed an application under Section 15 of the Sind Rented Premises Ordinance, 1979 for ejectment of the appellants. In the ejectment application detailed facts about the ownership of the property were given and then the history of the tenants who had occupied the premises was also mentioned. It was alleged that Suleman was the tenant and after his death in 1984 his sister Hawabai wife of Allah Rakha took possession of the tenement. The application for ejectment was filed against her but she also died and the respondents withdrew the case with the permission of the Court. Thereafter the following submissions have been made:‑

"(16) That after the death of Haroon his brother Suleman possessed the tenement in possession of Haroon illegally while according to law he was not entitled to occupy the tenement without the written consent of the applicants.

(17) That after the death of Suleman, Mst. Hawabai wife of Allah Rakha illegally possessed the tenements Nos. 1 and 2 which were in possession of Suleman without the written consent of the applicants.

(18) That after the death of Mst. Hawabai wife of Allah Rakha the opponents possessed the tenements 1 and 2 illegally without the written consent of the applicants.

(19) That the opponents have no right, title or interest in the tenements which were in illegal ossession of Mst Hawahai

(20) The tenancy period of the original tenants Haroon and Suleman expired with their death who died without their wives and their issues.

(21) That the tenancy of the last occupant Mst. Hawabai was without written consent of the Landlords and without legal force.

(22) That if the premises is handed over to the last occupant Mst. Hawabai without the written consent of the Landlords it has no locus standi.

(23) That firstly Suleman infringed the conditions on which the premises was let out by occupying the tenements in possession of the tenant Haroon after his death.

(24) That when Mst. Hawabai expired, the learned counsel for the so‑called legal representatives informed the Honourable Court about the fact of the death of Mst. Hawabai. However, the learned counsel for the opponents declined the right of the legal heirs of the deceased occupant Mst. Hawabai to conduct the case to conclusion, with the result that the applicants withdrew the case with the permission of the Court to file a fresh application, hence, this application.

(25) That the tenancy has ceased to be valid under Section (6) of this Act, and cause of action accrued firstly when tenant Haroon expired and when tenart Suleman expired and from time to time. When the previous tenants have without written consent of the Landlords transferred their rights to the other occupants claiming to be tenants through the original tenant Haroon and Suleman within P.S. Kalakot within limitation and jurisdiction of this Hon'ble Court."

2. The learned Rent Controller issued notice to the appellants but as it remained unserved the same was published and also pasted at the outer door of the appellants and ex parte order was passed on 3rd September, 1986 and the same was executed on 18‑11‑1986 in the "absence of the appellants. The appellants have filed this appeal on 20‑1‑1987. They had applied for certified copy on 13‑12‑1986 which was delivered to them on 13‑1‑1987.

3. Mr. Ishrat Hashmi Rizvi the learned counsel for the respondents 2 to 5 and respondent No.l in person contend that the appeal is barred by time. On the face of it the contention seems to be correct and it is well‑established that Section 5 of the Limitation Act is not applicable. But the controversy does not rest here. According to Mr. Asad Bilgrami learned counsel for the appellants the Controller A had no jurisdiction to entertain the ejectment application and therefore the order passed by him is void and without jurisdiction. It is not binding on the parties and the question of limitation does not arise. From the averments made in the application which have been reproduced above it is clear that the respondents have not accepted the appellants as their tenants. They have termed them as illegal occupants. Therefore as they have not accepted them as the tenants the remedy does not lie under the Sind Rented Premises Ordinance, 1979. The learned counsel for the respondents contended that the order was passed with jurisdiction and the Controller had followed the procedure provided under law and validly passed the order. The fact remains that the appellants have been ex parte throughout and the learned Rent Controller had not at all adverted to the question of jurisdiction nor he seems to have applied his mind by reading the ejectment application to find out whether it was maintainable under the provisions of law. From the averments made in the ejectment application I am convinced that the respondents have not accepted or treated for the purpose of this application the appellants as their tenants. In the circumstances the Controller had no jurisdiction to entertain and adjudicate upon the application. Mr. Asad Bilgrami has referred to PLD 1969 Lah. 1039 and P L D 1973 Notes 66 at‑ page 89 in support of his contention. Any order passed without jurisdiction is not binding on the parties B and the plea of limitation cannot be pressed in service because such plea can be entertained only in respect of orders which are passed with jurisdiction. In this regard reference can be made to 1987 SCMR 1543. In the result the order passed by the Rent Controller is set aside with costs.

H.B.T./I‑34/K Appeal allowed.