MUMTAZ RIAZ Versus MASOOD SIDDIQUI

1. This is an appeal under section 24 of the Cantonment Rent Restriction (Amendment) Ordinance, 1985 challenging the order passed by the learned Additional Controller of Rents, Clifton, Cantonment Karachi, in Rent Case No.57 of 1986, whereby he has ordered ejectment of the appellant.

2. The brief facts giving rise to the present appeal are that the respondents filed an application for ejectment against the appellant inter alia alleging therein that the appellant was their tenant in respect of tenament situated in Defence Housing Society Ltd. Karachi, at monthly rent of Rs.3,500. That the appellant /opponent was habitual defaulter and had failed to pay the rent from January 1986 to September 1986. He had also failed to pay water charges and conservancy charges. That he had also raised construction and carried out additions and alterations in the premises in dispute. Notice of this application was issued to the appellant /opponent, who filed his written statement and denied the relationship of landlord and tenant. Therefore the learned Additional Rent Controller framed a preliminary issue with regard to relationship of landlord and tenant. That the parties produced their evidence, and after taking into consideration the same, the learned Additional Rent Controller came to the conclusion that there was relationship of landlord and tenant between the parties but he went further and decided the whole case by ordering ejectment of the appellant /opponent. The relevant portion of the order reads as under:‑

3. "The opponent appears to have raised the question of landlord/ tenant relationship frivolously, particularly when the material allegation levelled against her by the applicants is default in the payment of rent. As a sequel it is sufficient that the opponent should be ejected from the disputed premises straight‑away without going into any details of payment of rent. I, therefore, proceed to allow the main application of the applicant with the directions to the Opponent to vacate the disputed premises and hand over peaceful possession thereof to the applicants within three months from the date of this Order."

4. During the pendency of this appeal, an application for deposit of rent was moved on behalf of the respondents /landlord, and while hearing the application it transpired that the learned Additional Rent Controller while deciding preliminary issue regarding relationship of landlord and tenant had decided the entire case without taking into consideration the question of default, therefore I called upon the learned counsel appearing for the parties to address the Court on the point, as to how the order of the learned Additional Rent Controller was maintainable, particularly because the only issue which had to be determined by him at that time was regarding relationship of landlord and tenant.

5. I have heard Mr. Haziqul Khairi, learned counsel appearing for the respondents and Mr. U . Naimat Moulvi, learned counsel appearing for the appellant.

6. Mr. Haziqul Khairi learned counsel appearing for the respondent had frankly conceded that in view of the fact that the Rent Controller was only to decide the question of relationship of landlord and tenant between the parties first, he had gone beyond his jurisdiction by deciding the question of default also which was clear from the order. Therefore he has conceded that this matter may be remanded back to the learned Rent Controller to decide the question regarding default and other points.

7. Mr. U. Naimat Moulvi, learned counsel appearing for the appellant has contended that the powers of this Court regarding remand have been taken away by the amending Ordinance IX of 1985 and this Court cannot remand the matter back to the learned Additional Rent Controller on any point.

8. I have considered the contentions of the learned counsel, and have gone through the R & P of the case, and the amending Ordinance relied upon by the learned counsel appearing for the appellant. The bare reading of the order shows that the learned Rent Controller had framed a preliminary issue for determination of question regarding relationship of landlord and tenant between the parties, and he was expected to give decision only on that point. Even his order shows that he has not gone into question of default in order to find out whether there was a wilful default or not. That even if there was a default, then for how much period the default was committed. Merely because the tenant had denied the relationship of landlord and tenant will not mean that when the issue was decided against the tenant, the ejectment was to follow. The order on the face of it appears to be illegal. As far as the amendment relied upon by Mr. U . Naimat Moulvi was concerned there is no prohibition in any of the provision of the amending Ordinance prohibiting this Court from ordering remand of the case in an appropriate case. Even otherwise this Court has inherent powers to pass any order in order to do complete just, unless it is prohibited by any provision of the Code or the relevant statute itself.

9. In view of the above discussion the order passed by the learned Additional Rent Controller regarding ejectment is hereby set aside, he is directed to record evidence of the parties if any on the point of default and other points regarding additions, alterations, etc. and thereafter, dispose of the matter in accordance with law.

10. However, I direct the learned Additional Rent Controller to decide the above case within six months.

11. M.Y.H./B‑50/K Case remanded.